SHORE AND SEA BOUNDARIES 

Volume Three 
National Oceanic and Atmospheric Administration Ship Rainier 
SHORE AND SEA 

BOUNDARIES 

BY 

MICHAEL W. REED 

Volume Three 

U.S. Department of Commerce 

William M. Daley, Secretary 

National Oceanic and Atmospheric Administration 

D. James Baker, Ph.D., Administrator 
U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 2000 

U.S. DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric Administration 

Coastal Services Center 

Office of Coast Survey 

U.S. DEPARTMENT OF THE INTERIOR 

Minerals Management Service 

NOAA/CSC/20007-PUB 

For Sale by the Government Printing Office 

ISBN: 0-16-059062-0 
Volume Three 

THE DEVELOPMENT 

OF 

INTERNATIONAL MARITIME BOUNDARY PRINCIPLES 

THROUGH 

UNITED STATES PRACTICE 
In memory of 

Millington Lockwood 

1943–1999 

This book is dedicated to the memory of Millington Lockwood for 

the outstanding role he played in the development of the field of marine 

and coastal geographic information systems. 

Lockwood was born in San Francisco, California, in 1943. He earned 

a B.S. degree in Meteorology and Oceanography from the State University 

of New York Maritime College and a M.S. degree in Environmental 

Systems Management–Ocean Affairs from American University. 

For 29 years he held a variety of positions within the National 

Oceanic and Atmospheric Administration and was actively involved in 

U.S. national policy with respect to the implementation of the National 

Spatial Data Infrastructure. 

People who knew Millington Lockwood would variously describe 

him as professional, energetic, genuine, persistent, mercurial, humorous, 

and altruistic. Lockwood loved his work, influenced national policy and 

research perspectives for spatial data, and mentored a generation of 

scientists, technologists, and policy makers who are now advocates for his 

vision and teachings. 

Millington Lockwood lost a courageous fight against cancer on July 

22, 1999. He is survived by his wife Susan, and children Lisa and Billy. 
Acknowledgments 

Thanks alone are inadequate to express my appreciation to the many 

colleagues whose contributions have made this volume a reality. First 

mentioned must be Millington Lockwood and Lee Thormahlen whose 

vision and enthusiasm got the project underway and sustained it to the end. 

Equally important was the team assembled for its production. Cindy 

Fowler coordinated and oversaw the entire endeavor; Donna McCaskill 

supervised production and printing; Lauren Parker edited textual material; 

Frank Ruopoli produced all graphics in addition to the book jacket and 

layout; Nancy Cofer-Shabica edited graphics and—through her knowledge 

of the subject matter—melded graphics and text; Chuck Baxley kept the 

computers running throughout; and Gerald Esch, an incomparable editor, 

turned these combined efforts into a finished work. 

Thanks also to the experts who graciously reviewed the manuscript and 

contributed invaluable suggestions. They include Ashley Roach, Bob Smith, 

Jeff Minear, Lee Thormahlen, Richard Naito, Michael Vertress, Cindy 

Fowler, Curt Loy, Dennis Romesburg, Jim Dailey, Doug Martin, and Steve 

Gill. They did their best to keep me on the straight and narrow. Any 

remaining errors, and all personal opinions, are mine alone. 

Recognition is also due the attorneys with whom I have had the 

pleasure of litigating most of the tidelands cases discussed in the succeeding 

pages: George Swarth, Louis Claiborne, Jeff Minear, Spinner Findlay, Peggy 

Strand, Don Carr, John Briscoe, Tom Koester, and Bruce Flushman to name 

but a few. And to the Supreme Court’s special masters before whom we 

have been privileged to practice our trade: Retired Justice Tom Clark, Judges 

Albert Maris, Robert Van Pelt, Walter Hoffman and Alfred Arraj, and Messrs. 

William Davis, Walter Armstrong, and J. Keith Mann. These individuals 

have not only contributed substantially to the development of maritime 

boundary law—they have also made its practice most enjoyable. Whether 

ally, adversary, or judge, I count them all as personal friends. 

Experts both within and without federal agencies, who have worked 

tirelessly to resolve maritime boundary problems, are too numerous to 

identify separately. The former are ably represented by Tom Warren and 

Stan Ashmore of the Department of the Interior and all members of the 

Coastline Committee. The latter include Judge Philip Jessup, Lou DeVorsey, 

Clive Symmons, Victor Prescott, and Elihu Lauterpacht, internationally 

recognized experts who have dedicated their lives to the subject and have 

participated in the tidelands litigation. Each of these, and their many 

vii 
unnamed colleagues, has contributed substantially to the body of law that 

is discussed here and its application to real-life controversies. 

Finally, I must acknowledge the collaboration of my wife Donna Reed 

who has lent her energy and expertise throughout, translating authorities 

from the original French, editing drafts, providing photographic 

illustrations, offering sage advice, and doing everything possible to keep me 

on an even keel. 

To all I owe an immeasurable debt. My heartfelt thanks. 

Mike Reed 

viii 
Preface 

In Recognition of Aaron Shalowitz 

Aaron Shalowitz, who served as special assistant to the director of the 

U.S. Coast and Geodetic Survey, produced his historic two-volume Shore 

and Sea Boundaries in the early 1960s. At the time they were considered to 

be the largest collection of background on the subject of maritime 

boundary delimitation. The concepts which he developed and explained 

led to a deeper understanding of the issues in the multibillion dollar 

tidelands battles. His treatise represented the culmination of the first phase 

of the Coast Survey’s involvement in providing federal and state agencies, 

industry, engineers, and attorneys with authoritative guidance in the 

clarification and application of the technical and legal-technical provisions 

in international law, Supreme Court decisions, and Acts of Congress. 

Volumes One and Two continue to be relied upon by numerous users— 

including the United States Supreme Court. 

Shalowitz brought to the preparation of these documents a keen 

awareness of engineering, legal, and Coast and Geodetic Survey experience 

as a commissioned officer in the field, a cartographic engineer, and as the 

technical advisor to the Department of Justice in the California “tidelands” 

litigation. 

It is a source of personal pride to realize that these volumes prepared by 

Aaron Shalowitz, which bore the stamp of many hours of dedication, 

continue to be recognized by the federal government, and are being 

expanded with the publication of a Volume Three. 

The Shalowitz family 

ix 
Foreword 

More than two decades ago, I was a green law student working with a 

team of private and government lawyers, law professors, and law clerks 

engaged in a lengthy disagreement between the State of Louisiana and the 

U.S. Department of Interior. At issue were the differing interpretations of 

the state/federal boundary off the coast of Louisiana. This boundary was 

important because of the extensive petroleum reserves that lay off that 

state’s coast. At stake was each party’s proportionate share of these reserves, 

which would be based on where the state’s legal shoreline was determined 

to be, and the extent of the state’s seaward jurisdiction. 

For those of us embroiled in the infinite details of the case, there was a 

guiding light—Shore and Sea Boundaries by Aaron L. Shalowitz. This richly 

informative manuscript provided an important foundation for the case as 

presented by the State of Louisiana. As witness to this legal clash of titans, 

the law clerks spoke reverently of the scope and details of this text, which 

we read and reread until it seemed as though we could recite it word for 

word. 

Since that time, there have been more than a dozen tidelands cases that 

have found their way to the U.S. Supreme Court. I feel confident that in 

each and every one of those instances, there were lawyers and law clerks 

who pursued Shore and Sea Boundaries with the same fervor that we did 

searching for illumination and controlling authority. 

Mike Reed has done a superb job of updating this luminous 

manuscript. I feel confident that this will be a landmark publication used 

not only by legal staffs, but coastal resource managers, state and local 

governments, and universities. 

I am delighted that my organization could help support such a 

noteworthy effort. For me, it is a personal honor to tag along behind the 

vision of Millington Lockwood, which drove this revision, and provide a 

foreword to such an important work. 

Margaret A. Davidson 

Director, 

NOAA Coastal Services Center 

xi 
Contents 

Dedication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi 

Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii 

Preface: In Recognition of Aaron Shalowitz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix 

Foreword. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi 

List of Illustrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xix 

Introduction to Volume Three . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxi 

PART ONE 

THE TIDELANDS LITIGATION 

Introductory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

CHAPTER 1. NON–SUBMERGED LANDS ACT ISSUES . . . . . . . . . . 5 

United States v. California: The Genesis . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 

United States v. Louisiana: The Statutory Boundary . . . . . . . . . . . . . . . . . 11 

United States v. Texas: The Pre-Admission Boundary . . . . . . . . . . . . . . . . 11 

United States v. Maine: The Colonial Charters . . . . . . . . . . . . . . . . . . . . . 13 

CHAPTER 2. THE SUBMERGED LANDS ACT . . . . . . . . . . . . . . . . . . 18 

CHAPTER 3. THE SUBMERGED LANDS ACT ISSUES . . . . . . . . . 23 

Interpreting the Submerged Lands Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 

Geographic Extent of the Grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 

Exceptions to the Submerged Lands Act Grant . . . . . . . . . . . . . . . . . . . . 32 

United States v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 

United States v. Alaska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 

Determining the Seaward Limit of State Jurisdiction . . . . . . . . . . . . . . . . 42 

United States v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 

United States v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 

The Coast Guard Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 

The Convention Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 

Dredged Channels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 

Low-Tide Elevations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 

The Semicircle Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 

Islands in the Mouth of a Bay . . . . . . . . . . . . . . . . . . . . . . . . . 63 

Islands as Headlands of Bays . . . . . . . . . . . . . . . . . . . . . . . . . . 63 

Fringing Islands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 

Historic Inland Waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 

xiii 
CHAPTER 3. THE SUBMERGED LANDS ACT ISSUES - continued 

The Special Master Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 

Straight Baselines

The Submerged Lands Act Definition of 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 

The Coast Guard Inland Water Line . . . . . . . . . . . . . . . . . . 68 

The Chapman Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 

The Louisiana v. Mississippi Chart . . . . . . . . . . . . . . . . . . . 69 

The Census Boundaries . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 

Bird Sanctuaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 

Historic Bays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 

The Actual Low-Water Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 

Juridical Bays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 

Islands v. Mainland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 

The Semicircle Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 

Entrance Points . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 

Overlarge Bays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 

The Alabama and Mississippi Boundary Cases. . . . . . . . . . . . . . . . . . . . . . 78 

Straight Baselines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 

Juridical Bays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 

Historic Bay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 

United States v. Maine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 

The Massachusetts Boundary Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 

The Rhode Island and New York Boundary Case . . . . . . . . . . . . . . . . . . . 102 

United States v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 

The Alaska Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 

The Cook Inlet Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 

The Nome Pier Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 

The Dinkum Sands Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 

The “Coast Line” Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 

Dinkum Sands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 

ARCO Pier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 

Inland Water Closing Lines . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 

Southern Harrison Bay . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 

The Effect of Islands on the Coastline . . . . . . . . . . . . . . . . 144 

The “Impermissible Contraction” Argument . . . . . . . 145 

“Coast Line” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 

Article 4 Straight Baselines . . . . . . . . . . . . . . . . . . . . . 150 

The Reservation Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 

National Petroleum Reserve–Alaska . . . . . . . . . . . . . . . . . 152 

The Boundary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 

The Legal Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 

The Arctic National Wildlife Refuge . . . . . . . . . . . . . . . . . 157 

The Boundary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 

Effectiveness of the Withdrawal . . . . . . . . . . . . . . . . . 159 

xiv 
CHAPTER 4. LATERAL BOUNDARIES . . . . . . . . . . . . . . . . . . . . . . . . . 161 

Texas v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 

Georgia v. South Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 

New Hampshire v. Maine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 

PART TWO 

DELIMITING MARITIME BOUNDARIES 

Introductory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 

CHAPTER 5. THE NORMAL COASTLINE . . . . . . . . . . . . . . . . . . . . . . 177 

The Low-Water Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 

Which Low-Water Line? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 

The Charted Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 

The Actual Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 

No Low-Water Line Charted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 

The Ambulatory Low-Water Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 

Man-Made Coast Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 

Harborworks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 

Piers Contrasted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 

Spoil Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198 

Islands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 

Naturally Formed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 

Areas of Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 

Above the Water at High Tide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 

Vertical or Horizontal Migration . . . . . . . . . . . . . . . . . . . . . . . . . . 210 

Reefs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212 

Low-Tide Elevations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214 

The Low-Water Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216 

Contrasted with Islands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216 

Practical Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220 

Unanswered Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 

CHAPTER 6. INTERNAL WATERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222 

Bays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 

Bays of a Single State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 

What Is a Bay? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 

What Waters Are Landlocked? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 

The Two-Dimensional Criterion . . . . . . . . . . . . . . . . . . . . . . . 226 

The Headland Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 

Size and Shape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 

xv 
CHAPTER 6. INTERNAL WATERS - continued 

Landlocked from the View of the Mariner . . . . . . . . . . . . . . . . 233 

Indentation into the Mainland

Artificial Islands and Low-Tide Elevations within 

. . . . . . . . . . . . . . . . . . . . . . . . 236 

The Semicircle Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240 

History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 

Rivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 

Subsidiary Bays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 

Islands within the Indentation . . . . . . . . . . . . . . . . . . . . . 249 

the Indentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 

Islands in the Mouth of the Indentation . . . . . . . . . . . . . 253 

Headlands and Natural Entrance Points . . . . . . . . . . . . . . . . . . . . . . . . . 256 

The 45-Degree Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 

The Bisector of the Angle Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 

The Shortest Distance Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 

Other Suggested Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 

Headland Determination in Double-Headed Bays . . . . . . . . . . . . . . . . . . . 266 

Artificial Headlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 

Islands as Headlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271 

The General Proposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271 

The Court’s Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 

Size . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 

Distance from the Mainland . . . . . . . . . . . . . . . . . . . . . . . . . . 276 

Depth and Utility of Intervening Water . . . . . . . . . . . . . . . . . . 276 

Shape and Orientation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 

Origin of the Land Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 

The Court’s Five Criteria Provide a Minimum Test . . . . . . . . . . . . . 280 

Other Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280 

Connection to the Mainland by Bridges . . . . . . . . . . . . . . . . 281 

Proximity to Inland Waters . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 

Low-Tide Elevations as Headlands . . . . . . . . . . . . . . . . . . . . . . . . . 286 

Applications of the Court’s Criteria . . . . . . . . . . . . . . . . . . . . . . . . 286 

Islands in the Mouth of a Bay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 

The General Proposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 

Intersected Islands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 

Screening Islands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 

Islands Assimilated to the Mainland . . . . . . . . . . . . . . . . . . . . 301 

Screening Islands and the Mainland Termini . . . . . . . . . . . . . . . . . 302 

Non-Geographic Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 

Examples of Multiple-Mouth Bays . . . . . . . . . . . . . . . . . . . . . . . . . 304 

xvi 
CHAPTER 6. INTERNAL WATERS - continued 

Overlarge Bays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306 

The Semicircle Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307 

Determining the Maximum Area of Water . . . . . . . . . . . . . . . . . . . 308 

Examples of Overlarge Bays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 

Rivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311 

The Convention’s Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311 

Directly into the Sea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311 

A Straight Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314 

On the Low-Tide Line of its Banks . . . . . . . . . . . . . . . . . . . . . . . . . 315 

What Are Banks? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 

Artificial Structures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 

Submerged Features . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 

Locating Entrance Points . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 

Boundary Rivers and Length of Closing Lines . . . . . . . . . . . . . . . . . . . . . . 318 

Harbors and Ports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319 

Roadsteads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322 

Historic Inland Waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324 

The Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325 

The Elements of a Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327 

The Exercise of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327 

Articulated Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328 

Activities Consistent with a Claim . . . . . . . . . . . . . . . . . . . . . . 333 

Fisheries Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333 

Oyster Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334 

Mineral Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334 

Pollution Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334 

Navigation Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . 335 

Additional Considerations . . . . . . . . . . . . . . . . . . . . . . . . 336 

The Continuity of the Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338 

Foreign Responses to the Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . 339 

A Fourth Element . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341 

Straight Baselines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343 

Federal Agency Lines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344 

The Coast Guard Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345 

Census Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346 

Chapman Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346 

Bird Sanctuaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 

Louisiana v. Mississippi Decision . . . . . . . . . . . . . . . . . . . . . . . . . . 348 

Other Executive Branch Lines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 

The United States’ Pre-Convention Juridical Practice . . . . . . . . . . . . . . . . . 351 

xvii 
PART THREE 

LITIGATING A TIDELANDS CASE 

Introductory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357 

CHAPTER 7. HOW LITIGATION POSITIONS ARE ESTABLISHED. . 359 

The Federal Position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359 

The State Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361 

CHAPTER 8. PLEADINGS AND PARTIES . . . . . . . . . . . . . . . . . . . . . . 363 

CHAPTER 9. RESOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 

Disposition on the Pleadings and Documentary Record . . . . . . . . . . . . . 367 

On Submission to a Special Master . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369 

Selection and Appointment of a Special Master . . . . . . . . . . . . . . . . . . . . . 370 

Proceedings before the Special Master . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370 

Preparation of a Joint Statement of Issues . . . . . . . . . . . . . . . . . . . 370 

Pretrial Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372 

The Pretrial Memorandum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373 

The Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374 

Views . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375 

Post-Trial Memoranda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 

The Special Master’s Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377 

Supreme Court Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377 

Expenses and Special Master Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 

APPENDICES 

A: Glossary of Terms Used . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383 

B: Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393 

C: Submerged Lands Act (Relevant Provisions) . . . . . . . . . . . . . . . . . . . . . . . . . 399 

D: Federal Statutes Affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403 

E: Baseline Provisions of the 1958 and 1982 Conventions Compared . . . . . . . 407 

F: Coastline Committee Charter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415 

G: Presidential Proclamation No. 5928 of December 27, 1988, 

Claiming a 12-Mile Territorial Sea for the United States . . . . . . . . . . . . . . . . 419 

H: Presidential Proclamation No. 7219 of August 2, 1999, 

The Contiguous Zone of the United States . . . . . . . . . . . . . . . . . . . . . . . . . . 421 

INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423 

xviii 
Illustrations 

FIGURE PAGE 

NOAA Ship Rainier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii 

1. Texas’s Submerged Lands Act grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 

2. Map attached to Presidential Proclamation No. 2825 . . . . . . . . . . . . . . . 35 

3. The coastline of the National Petroleum Reserve–Alaska . . . . . . . . . . . . . 39 

4. The coastline of the Arctic National Wildlife Refuge, Alaska . . . . . . . . . . 40 

5. Shoreline cross section, comparing tidal datums . . . . . . . . . . . . . . . . . . . 44 

6. California’s “Overall Unit Area” inland water claim . . . . . . . . . . . . . . . . 45 

7. Port of San Pedro, California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 

8. Headlands of San Diego Bay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 

9. Ocean Beach Pier, San Diego, California . . . . . . . . . . . . . . . . . . . . . . . . . 54 

10. Typical pier on NOAA charts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 

11. Ascension Bay, Louisiana, an overlarge bay . . . . . . . . . . . . . . . . . . . . . . . 76 

12. Mississippi Sound off the coasts of Alabama and Mississippi . . . . . . . . . 78 

13. Vineyard and Nantucket Sounds, south of Cape Cod, Massachusetts . . . 95 

14. Long Island and Block Island Sounds . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 

15. Florida Bay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 

16. Straits of Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 

17. Marquesas Keys, west of Key West, Florida . . . . . . . . . . . . . . . . . . . . . . . 119 

18. Cook Inlet and Shelikof Strait, Alaska . . . . . . . . . . . . . . . . . . . . . . . . . . 121 

19. Nome jetty, Alaska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 

20. Estimated mean high-water datum superimposed on the observed 

high points of Dinkum Sands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 

21. Alternative methods for measuring penetration . . . . . . . . . . . . . . . . . . . 145 

22. North coast of Alaska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 

23. Offshore extension of Texas/Louisiana boundary . . . . . . . . . . . . . . . . . 166 

24. Maine/New Hampshire boundary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 

25. High- and low-water lines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 

26. High-water line only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 

27. Effects of groin or jetty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 

28. Jetty at the mouth of the San Diego River, California . . . . . . . . . . . . . . 188 

29. Louisiana coast . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 

30. Ocean Beach Pier, San Diego, California . . . . . . . . . . . . . . . . . . . . . . . . 194 

31. Florida Bay, Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198 

32. Rincon Island off the coast of California . . . . . . . . . . . . . . . . . . . . . . . . 199 

33. East Bay, Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 

34. California mainland and islands with 3-mile maritime boundaries . . . 201 

35. Insignificant islet with a 28-square-mile maritime zone . . . . . . . . . . . . 202 

36. Ice/gravel mix in subsurface of Dinkum sands, Alaska . . . . . . . . . . . . . . 206 

37. Alaska expert, Claud Hoffman, on Dinkum Sands . . . . . . . . . . . . . . . . . 209 

38. Coral reefs off Buck Island, U.S. Virgin Islands . . . . . . . . . . . . . . . . . . . 213 

39. Low-tide elevation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 

40. Coastal Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 

41. Atchafalaya Bay, Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 

42. Delaware Bay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 

43. Block Island Sound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 

xix 
FIGURE PAGE 

44. East Bay, Louisiana, at the southern tip of the Mississippi River delta . . 230 

45. Nantucket Sound, off the coast of Cape Cod, Massachusetts . . . . . . . . . 236 

46. Caillou Bay, Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 

47. Mainland coast of Caillou Bay, Louisiana . . . . . . . . . . . . . . . . . . . . . . . 239 

48. The semicircle test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 

49. East Bay, Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244 

50. Ascension Bay, Louisiana, with adjoining bays . . . . . . . . . . . . . . . . . . . 248 

51. Entrance to San Francisco Bay, California . . . . . . . . . . . . . . . . . . . . . . . 249 

52. Bucket Bend Bay, Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 

53. Marsh Island, Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 

54. Caminada-Barataria Bay, Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 

55. Multiple mouths to a juridical bay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 

56. Multiple mouths to a juridical bay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 

57. 45-degree test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 

58. Bisector of the angle test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 

59. Shortest distance test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 

60. Southern Harrison Bay, Alaska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 

61. San Diego Bay, California, with closing line . . . . . . . . . . . . . . . . . . . . . . 270 

62. Saint Bernard Peninsula, Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 

63. Long Island Sound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 

64. Mobile Bay, Alabama, with closing line through Dauphin Island . . . . . 284 

65. Multiple mouths to a juridical bay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 

66. Garden Island Bay, Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 

67. East Bay, Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289 

68. Caillou Bay, Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 

69. New York/Connecticut coastline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 

70. East River, New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 

71. Multiple mouths to a juridical bay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 

72. Multiple mouths to a juridical bay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 

73. Multiple mouths to a juridical bay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301 

74. Buzzards Bay, Massachusetts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 

75. Ascension Bay, Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307 

76. An overlarge bay with 24-mile fallback line terminating on the 

closing line of a subsidiary bay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 

77. Cook Inlet, Alaska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 

78. Sabine River . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316 

79. Port of San Pedro, California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320 

80. Port of San Pedro, California, and roadstead . . . . . . . . . . . . . . . . . . . . . 323 

81. Mississippi Sound off the coasts of Alabama and Mississippi . . . . . . . . 328 

82. Vineyard Sound, Massachusetts, found to be historic waters . . . . . . . . . 330 

83. Stefansson Sound, Alaska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332 

84. Portion of the Chapman Line on the Mississippi River delta . . . . . . . . . 347 

85. Map included in Supreme Court decision in Louisiana v. Mississippi, 

202 U.S. 1, 10 (1906) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349 

xx 
Introduction to 

Volume Three 

In 1962 and 1964 Volumes One and Two of Shore and Sea Boundaries 

were published. Since that time they have provided an invaluable resource 

to attorneys and judges engaged in defining the maritime boundaries of the 

United States. But much has happened in the subsequent 35 years. The 

Supreme Court and its special masters have resolved at least 16 maritime 

boundary cases in that period. The time has come to update Aaron 

Shalowitz’ epic effort. 

My purpose in Volume Three is to organize and preserve the legal 

principles that have been applied by the Supreme Court to define our coast 

line and the numerous maritime boundaries which are measured from it. 

That undertaking seems particularly important where, as here, much of the 

law and legal reasoning is contained not in readily available judicial 

opinions but in the Reports of the Supreme Court’s special masters. That is 

so because the cases with which we are concerned do not reach the Supreme 

Court in the usual manner. They are known as “Original actions,” cases 

which are initiated in the Supreme Court rather than arriving there 

following a course through the Federal District and Circuit Courts. When 

the resolution of Original actions requires factual findings they are typically 

assigned to a special master who is delegated the responsibility of 

conducting hearings, receiving evidence, and making findings and 

recommendations in a Report to the Court. Although the Reports are 

public, there is no system for their publication, and they are not easily 

available to practitioners. Despite the fact that the Supreme Court often 

writes a substantial decision following its receipt of the Report, more often 

than not it is the Report that contains the more extensive explanation of 

how issues were resolved. 

Three sources are emphasized in Volume Three. The Supreme Court 

decisions in the tidelands cases provide the primary authority. Next come 

its Masters’ Reports which almost always contain a greater depth of analysis 

than is practical for the Court. Finally, the positions of international 

authorities on the law of the sea, many of whom have served as witnesses in 

the tidelands cases, are reviewed to indicate how their interpretations either 

support or conflict with the Court’s conclusions. 

The volume is divided into three parts. 

Part I follows the history of the tidelands litigation from its 

pre–Submerged Lands Act infancy, through that Act and the various 

xxi 
decisions interpreting its provisions, and finally to the application of the 

baseline provisions of the Convention on the Territorial Sea and the 

Contiguous Zone to the coastal geography of the United States to precisely 

define the limits of each state’s Submerged Lands Act grant. 

Part II emphasizes the legal principles for coast line delimitation that 

are derived from the numerous tidelands decisions. This part is organized 

by issue in hopes that it will provide the practitioner with a useful resource 

in future litigation. 

Part III offers the gratuitous insights of a single practitioner regarding 

the trial of a tidelands case or other complex federal litigation. I hope that 

it will prove of interest or value to those who follow. 

There are many excellent works on the law of the sea which include 

chapters on maritime boundary delimitation. Some have been cited 

extensively in these tidelands cases. The authors of some have participated 

as witnesses in the tidelands cases. This volume does not attempt to replace 

those authoritative works. Rather its purpose is to focus on the American 

experience. The United States Supreme Court and its masters have dealt 

with each of the Convention’s provisions for coast line delimitation. Few 

other courts worldwide have had that opportunity. These Supreme Court 

precedents will not only be applicable to future tidelands litigation but to 

any controversy that requires a determination of the limits of our inland 

waters, navigable waters, territorial sea, or other maritime zones. 

xxii 
Part One 

THE TIDELANDS LITIGATION 
INTRODUCTORY 

Long before discovery of the New World the English common law 

recognized navigable waters as open to the public for fisheries and 

commerce. The sovereign held title to the beds of navigable waters, in trust 

for the public.1 Following the Magna Carta it was established that lands 

beneath navigable waters were so closely aligned with the concept of 

sovereignty that, unlike other public lands, they could not be disposed of by 

the Crown, but only by act of Parliament. 

This tradition followed the common law to our shores and was first 

applied in Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842). That controversy 

arose over title to submerged lands in Raritan Bay, a navigable water body 

in New Jersey. New Jersey began as a proprietary colony of England. The 

grantees were given title to the lands within its boundaries as well as all 

governmental powers. In 1702 the proprietors returned governmental 

authority to the Crown, while retaining title to the land. 

The American Revolution followed and the State of New Jersey 

succeeded to the Crown’s governmental authority. Thereafter the state 

patented oyster beds in Raritan Bay to Martin and the successors to the 

colonial proprietors made a similar grant to Waddell. An ejectment action 

was initiated by Waddell and wound up in the Supreme Court, the critical 

question being whether the beds of navigable water bodies were returned to 

the Crown as part of the governmental power or retained by the proprietors 

as part of the land. The Court adopted the former position, holding that 

title to lands under navigable waters was part of the jura regalia rather than 

the right to property. As such, title went back to the Crown in 1702 and was 

acquired by New Jersey after the Revolution. The state, and not the 

colonists’ successors, had authority to grant oyster leases. 

The identical issue arose just three years later in Mobile Bay. Alabama, 

which was not one of the 13 original states, nevertheless argued that it too 

entered the Union with title to submerged lands beneath navigable waters. 

The Supreme Court agreed. Referring back to Martin v. Waddell, it reasoned 

that if sovereignty included title to submerged lands in the original 13 states 

it must also in subsequently admitted states if they were to enter the Union 

on an “equal footing.” Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845). 

So the law was clear. Or was it? The Supreme Court had established 

that the individual states held title to the beds of certain navigable waters. 

But exactly 100 years later the federal government and the coastal states 

1. The significance of this “public trust” to the sovereign’s management of submerged lands goes beyond 

the scope of this effort. It has, however, been exhaustively discussed in two recent works. Lazarus, Changing 

Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 Iowa L.Rev. 

631 (1986); Coastal States Organization, Inc., Putting the Public Trust Doctrine to Work, (2nd ed. 1997). 

3 
4 Shore and Sea Boundaries 

began what has now been more than a half century of litigation to 

determine whether the states’ title extended to all navigable waters and how 

the boundaries of our navigable waters are to be determined.2 That 

litigation has created a vast body of law on the delimitation of maritime 

boundaries. Because the Supreme Court decided to apply international law 

to these domestic controversies, the rules that have evolved are equally 

applicable to domestic and international disputes. What is more, they are 

applicable to any maritime boundary controversy, not just those involving 

title to submerged lands.3 

2. These lawsuits have been referred to as the “submerged lands” or “tidelands” cases. “Tidelands” are 

technically those areas which are covered and uncovered by the daily tides, commonly thought of as “the 

beach.” The cases, of course, involve vastly greater areas of permanently submerged inland waters and 

territorial seas. Nevertheless, we follow tradition and use the terms interchangeably here. 

3. The historic discussion of submerged lands rights liberally cribs (with permission) from an article by 

George S. Swarth, “Offshore Submerged Lands, An Historical Synopsis” published in the Department of 

Justice’s Land and Natural Resources Division Journal of April 1968. Mr. Swarth hired and trained many of the 

attorneys who represented the United States in the submerged lands litigation. Any successes were largely due 

to his extraordinary legal abilities. Setbacks would probably have been avoided had he not retired at an 

early age. 

CHAPTER 1 

NON--SUBMERGED LANDS ACT ISSUES 

The maritime boundary law upon which this volume focuses has 

generally come from Supreme Court decisions interpreting the Submerged 

Lands Act, 43 U.S.C. 1301 et seq., a federal statute enacted in 1953 granting 

coastal states exclusive rights in the adjacent seas. However, to jump right 

into a discussion of those boundary principles would be to begin the story 

in the middle. Tidiness dictates that we first review litigation that led up to 

the Act, and coastal state claims that lay on other foundations. 

UNITED STATES V. CALIFORNIA: THE GENESIS 

As just discussed, the Supreme Court ruled in 1842 that the original 

states acquired title to the submerged lands beneath their navigable waters 

at independence, Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842), and later 

held that subsequently admitted states enjoyed the same right under the 

equal footing doctrine. Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845). 

“Navigable waters,” as that term has come to be used in the United States, 

includes both inland waters and the maritime belt known as the 

territorial sea.4 

That may be the reason that for many years all involved assumed that 

the rules of Martin and Pollard applied equally to offshore as well as inland 

navigable waters. The question of offshore application took on practical 

consequences when, in the early 1930s, it was learned that California’s oil 

fields extended offshore. Producers applied to the Department of the 

Interior for oil and gas leases or prospecting permits. Interior rejected the 

applications, explaining that the state and not the federal government 

owned the offshore lands.5 As further evidence of its assumption of state 

ownership, the federal government sought title from the states when it 

needed submerged lands in the territorial sea. United States v. California, 

332 U.S. 19, 39 (1947). 

In the early 1940s the federal government began to reassess its legal 

position. Secretary of the Interior Ickes concluded that the United States 

4. At the risk of severe oversimplification we can define American navigable waters as those which are 

“navigable in fact” or are “subject to the ebb and flow of the tide.” However, readers who are dealing with a 

navigability issue should consult the numerous authorities and extensive body of case law on that issue. 

5. A congressional committee was provided with 21 such decisions of Interior. Senate Committee on 

Interior and Insular Affairs, S.J. Res. 20, 82nd Cong., 1st sess., p. 562. 

5 
6 Shore and Sea Boundaries 7 

might indeed have a claim to offshore submerged lands because previous 

litigation had dealt only with inland waters and the shore between the highand low-tide lines. He suggested to President Roosevelt that the attorney 

general bring an action to test the proposition.6 

In the fall of 1945 the attorney general filed an action challenging 

California’s right to offshore submerged lands and the minerals that they 

held.7 He went directly to the Supreme Court, asking that it declare the 

United States to be “the owner in fee simple of, or possessed of paramount 

rights in and powers over, the lands, minerals and other things of value 

underlying the Pacific Ocean, lying seaward of the ordinary low water mark 

on the coast of California and outside of the inland waters of the State, 

extending seaward three nautical miles . . . .”8 

The United States asserted title to the territorial sea and its bed in two 

capacities “transcending those of a mere property owner.” 332 U.S. at 29. 

The first was described as “the right and responsibility to exercise whatever 

power and dominion are necessary to protect this country against dangers 

to the security and tranquility of its people incident to the fact that the 

United States is located immediately adjacent to the ocean.” Id. In 

addition, the government contended that “proper exercise of these 

constitutional responsibilities requires that it have power, unencumbered 

by state commitments, always to determine what agreements will be made 

concerning the control and use of the marginal sea and land under it.” Id. 

California defended its claim on two unrelated theories. First it 

emphasized that its original constitution, adopted in 1849, included a 

3-mile offshore belt and that boundary was ratified by the Enabling Act that 

6. At about the same time the United States took an unprecedented step claiming, with respect to the 

international community, all “natural resources of the subsoil and sea bed of the continental shelf beneath the 

high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its 

jurisdiction and control.” Proclamation No. 2667, September 28, 1945, 59 Stat. 884. That claim did not rest 

on any theory that our navigable waters or boundaries extended so far offshore. In fact, the Proclamation 

specifically provided that the waters above the continental shelf remained high seas. The United States’ action 

was generally accepted by the international community and the concept was codified in the Convention on the 

Continental Shelf, Geneva, 1958, 15 U.S.T. 471. 

7. Actually, the federal government had filed a similar test case some six months before, not against the 

state but one of its lessees, the Pacific Western Oil Company, in the United States District Court for the 

Southern District of California. That action was dismissed when the government decided that it was more 

appropriate to test the constitutional issue in the Supreme Court and with the state as a party. 

8. The United States invoked the Supreme Court’s jurisdiction under Article III, Sec. 2 of the Constitution 

which provides that “In all Cases . . . in which a State shall be a Party, the supreme Court shall have original 

Jurisdiction.” All subsequent tidelands cases save one have been filed as Supreme Court Original actions. The 

exception, to determine the status of Cook Inlet, Alaska, was filed in the United States District Court for the 

District of Alaska because the government was concerned that a single tidelands issue, in a limited geographic 

area, might not justify an Original action. When the case completed its course through the Federal District and 

Circuit courts, the Supreme Court went out of its way to note that it had not been informed why the matter 

wasn’t initiated as an Original action. United States v. Alaska, 422 U.S. 184, 186, n.2. (1975). Thereafter all 

such cases were initiated in the Supreme Court. 

Part One 

admitted California to the Union. 9 Stat. 452.9 The state also relied heavily 

on an equal footing argument. It assumed, from Martin v. Waddell, Pollard 

v. Hagan, and their progeny, that the original states had entered the Union 

with territorial seas and that it must have done so too. 

And that is where the issue was joined. Following California’s Amended 

Answer to the Complaint, the United States moved for judgment.10 Despite 

the fact that the parties relied upon extensive factual evidence regarding the 

history of the law of the sea, they proceeded without evidentiary hearings, 

referring instead to published authorities in briefs and argument to the 

Court. 

On June 23, 1947, the Court issued the first of its many “tidelands” 

opinions. Its first step was to test California’s assumption that the original 

states had entered the Union with territorial seas. We recall that Martin v. 

Waddell, which involved the bed of Raritan Bay, was decided in favor of New 

Jersey’s grantee because under English common law the sovereign held title 

to lands beneath “navigable waters” as an attribute of sovereignty, not 

merely as a property owner. Because “navigable waters” included a 3-mile 

territorial sea in the 19th and 20th centuries, California (and most everyone 

else) assumed that the Martin v. Waddell doctrine applied equally offshore. 

But the United States argued, and the Supreme Court agreed, that a 

distinction should be made. 

As a matter of fact, the Supreme Court found that although England 

claimed title to inland “navigable waters,” in 1776 “the idea of a three-mile 

belt over which a littoral nation could exercise rights of ownership was but 

a nebulous suggestion. Neither the English charters granted to this nation’s 

settlers, nor the treaty of peace with England, nor any other document to 

which we have been referred, showed a purpose to set apart a 3-mile ocean 

belt for colonial or state ownership.” 332 U.S. at 32. “At the time this 

country won its independence from England there was no settled 

international custom or understanding among nations that each nation 

owned a 3-mile water belt along its borders.” Id. “From all of the wealth of 

material supplied, however, we cannot say that the thirteen original colonies 

separately acquired ownership to the three-mile belt or the soil under it 

. . . .” Id. at 31. 

In fact, the United States, acting after independence, is generally credited 

with having been in the forefront of efforts to establish an offshore belt of 

9. It is interesting to note that California’s belt was described as extending “three English miles from the 

shore.” Cal. Const. (1849) Art. XII. An English, or statute, mile runs 5280 feet. Territorial seas are traditionally 

measured in nautical, or geographical, miles of approximately 6080 feet. The federal complaint claimed 3 

nautical miles, a line almost one-half mile seaward of California’s constitutional boundary. The difference 

played no role in the Court’s analysis or decision. 

10. California’s first effort, exceeding 500 pages in length, more resembled a brief than an Answer and was 

ordered stricken by the Court on the United States’ motion. 
8 Shore and Sea Boundaries 

maritime sovereignty. Scholars traditionally cite Secretary of State Jefferson 

as the author of the United States’ first official claim to a territorial sea in 

1793. Id. at 33.11 Cited at 332 U.S. at 33 n.16. England, by contrast, was 

said to have “considerable doubt” as to the scope, and even the existence, of 

a marginal belt almost 100 years later. Id. at 33, citing The Queen v. Keyn, 2 

Ex. D. 63 (1876). 

Hence, the rationale behind Martin v. Waddell did not apply offshore. 

Because England claimed no territorial sea in 1776, the original states could 

have succeeded to no rights from her seaward of the coast line. 

The Court went on to consider whether local or national interests were 

predominant in the 3-mile belt. In Pollard it had emphasized the 

importance of inland waters to local concerns. In California it found the 

opposite to be true for the 3-mile belt. It reasoned that “insofar as the 

nation asserts its rights under international law, whatever of value may be 

discovered in the seas next to its shores and within its protective belt, will 

most naturally be appropriated for its use. But whatever any nation does in 

the open sea, which detracts from its common usefulness to nations, or 

which another nation may charge detracts from it, is a question for 

consideration among nations as such, and not their separate governmental 

units. What this Government does, or even what the states do, anywhere in 

the ocean, is a subject upon which the nation may enter into and assume 

treaty or similar international obligations. The very oil about which the 

state and nation here contend might well become the subject of 

international dispute and settlement. 

“The ocean, even its 3-mile belt, is thus of vital consequence to the 

nation in its desire to engage in commerce and to live in peace with the 

world; it also becomes of crucial importance should it ever again become 

impossible to preserve that peace. And as peace and world commerce are 

the paramount responsibilities of the nation, rather than an individual 

state, so, if wars come, they must be fought by the nation.” Id. at 35. 

(Footnotes and internal citations omitted.)12 

As if to emphasize its findings, the Court said “[n]ot only has 

acquisition, as it were, of the three-mile belt been accomplished by the 

National Government, but protection and control of it has been and is a 

function of national external sovereignty.” Id. at 34. For these reasons the 

Court determined not to “transplant the Pollard rule” of state sovereignty 

over the beds of inland water “out into the soil beneath the ocean.” Id. at 

11. Note to the British Minister. Reprinted in H. Ex. Doc. No. 324, 42nd Cong., 2d Sess, (1872) 553-554. 

Jefferson repeated his position in a note to French Minister Benet, American State Papers, 1 Foreign Relations 

(1883), 183, 184. 

12. Some have since suggested that this strong language from the Court may have been prompted by the 

fact that World War II was still in the minds of all Americans. Although that may be so, and we have no way 

of knowing, the Court’s reasoning and conclusions seem sound in whatever context. 

Part One 9 

36. It reasoned that “if this rationale of the Pollard case is a valid basis for a 

conclusion that paramount rights run to the states in inland waters . . . the 

same rationale leads to the conclusion that national interests, 

responsibilities, and therefore national rights are paramount in waters lying 

to the seaward in the three-mile belt.” Id. 

The Court made short work of the state’s constitutional boundary 

argument acknowledging that coastal states might well have offshore 

boundaries within which police powers might be enforced. Id. at 36. But, 

it concluded, such boundaries “do not detract from the Federal 

Government’s paramount rights in and power over this area.” Id.13 The 

Court concluded that “California is not the owner of the three-mile 

marginal belt along its coast, and . . . the Federal Government rather than 

the State has paramount right in and power over that belt, an incident to 

which is full dominion over the resources of the soil under that water area, 

including the oil.” Id. at 38-39. 

Four months after issuing its opinion the Court entered a decree 

implementing it. United States v. California, 332 U.S. 804 (1947). Although 

that decree clearly resolved all issues raised by this litigation, it contained 

language, or more accurately omitted language, which may create questions 

in future litigation. The United States proposed a decree that, consistent 

with the Prayer in its Complaint, would have described the federal interest 

in the territorial sea as “paramount rights of proprietorship.”14 But the 

Court did not include the words “of proprietorship” in its decree. Without 

explanation it described the federal interest only as “paramount rights.” Id. 

The Court’s failure to use the terms “fee simple,” as requested in the 

Complaint, or “proprietorship,” from the proposed decree, has left some 

13. California also raised a number of legal arguments which were rejected by the Court. First, it 

contended that the federal Complaint raised no “case or controversy,” as required by Article III, Sec. 2 of the 

Constitution, because the relief sought was not directed to a specific area of the California coast. The Court 

found that “such concrete conflicts as these constitute a controversy in the classic legal sense, and are the very 

kind of differences which can only be settled by agreement, arbitration, force, or judicial action.” Id. at 25. 

Second, the state argued that the attorney general had not been authorized to file the action. It cited the fact 

that Congress had acted as if the states controlled the 3-mile belt and had twice considered, and refused, to give 

the attorney general authority to bring this very lawsuit. The Court pointed to the attorney general’s broad 

authority “to institute and conduct litigation in order to establish and safeguard government rights and 

properties,” and that authority had not been revoked. Id. at 27 and 28-29. Finally, California contended that 

the federal government had lost its paramount rights through the Department of the Interior’s early position 

that California, and not the United States, held rights to the maritime belt. Again the Court disagreed, saying 

“even assuming that the Government agencies have been negligent in failing to recognize or assert the claims 

of the Government at an earlier date, the interests of the Government in this ocean area are not to be forfeited 

as a result. The Government, which holds its interests here as elsewhere in trust for all the people, is not to be 

deprived of those interests by the ordinary court rules designed particularly for private disputes over 

individually owned pieces of property; and officers who have no authority at all to dispose of Government 

property cannot by their conduct cause the Government to lose its valuable rights by their acquiescence, laches, 

or failure to act.” Id. at 39- 40. 

14. The federal Complaint had sought a declaration that the United States is “the owner in fee simple of, 

or possessed of paramount rights in and powers over, the lands, minerals and other things of value” in the 

marginal belt. 
10 Shore and Sea Boundaries 

doubt about the exact nature of the federal interest. Justice Frankfurter 

seemed later to suggest that the federal interest was something less than fee 

title. United States v. Texas, 339 U.S. 707, 723-724 (1950) (dissenting 

opinion). Yet language in the California opinion can be read to support a 

contrary conclusion. In describing the stakes at issue the Court said “the 

crucial question on the merits is not merely who owns the bare legal title to 

the lands under the marginal sea. The United States here asserts rights in 

two capacities transcending those of a mere property owner.” 332 U.S. at 29 

[emphasis added]. 

As George Swarth later noted, “that language certainly seems to 

recognize ownership as a part, though only a part, of the matter in issue; 

and the language of the decree as entered, declaring the United States to 

have ‘paramount rights in, and full dominion and power over’ the 

submerged lands and resources can hardly be read as excluding any element 

of total dominion, both sovereign and proprietary. This is particularly 

evident when it is remembered that the precise rights involved, as to which 

the United States prevailed, were rights to exploit the minerals — rights that 

are obviously proprietary in character.” Swarth, supra, at 116. 

Mr. Swarth’s analysis would seem to be sound. Yet rights in the sea, even 

within 3 miles of the coast, have never included the total “bundle” of 

property interests associated with upland ownership and the Court may 

have wanted to discourage future temptations to equate the two. By 

limiting its decree to “paramount rights” in the land and resources the 

Court may have been resolving the question at hand, rights to undersea oil 

and gas, without opening unanticipated controversies.15 

The import of the decision was clear. The federal government, and not 

the individual states, had the exclusive right to explore and exploit the 

mineral resources of the sea beyond the limit of inland waters. But the 

matter was not entirely resolved. Texas and Louisiana had also issued 

offshore leases based upon claims that they believed would distinguish their 

circumstance from that of California. Little more than a year after entry of 

the California decree the federal government brought Original actions 

against those two Gulf Coast states. 

15. President Truman had followed a similar course with his Proclamation of September 28, 1945. There 

he claimed only “the natural resources of the subsoil and sea bed of the continental shelf,” studiously avoiding 

claims of sovereignty or proprietorship over the area generally. Proclamation No. 2667, 10 Fed. Reg. 12303. 

The international community did the same with the Convention on the Continental Shelf, Article 2 of which 

gives the coastal nation state “sovereign rights for the purpose of exploring it and exploiting its natural 

resources” but goes on to specify that the legal status of the waters or airspace is not affected (Article 3), 

submarine cables and pipelines may not be impeded (Article 4), and navigation, fishing, conservation and 

scientific research may not be unreasonably interfered with (Article 5). 15 U.S.T. 471. Clearly exclusive rights 

to resources were being distinguished from traditional fee title. 

Part One 11 

UNITED STATES V. LOUISIANA: THE STATUTORY BOUNDARY 

Putting aside Louisiana’s jurisdictional and procedural defenses – which 

were given short, if any, shrift by the Court – the only difference between its 

case and California’s was the extent of their offshore claims. California, it 

will be remembered, had a constitutional boundary of 3 English miles. 

Louisiana claimed a statutory boundary 27 miles offshore. 6 Dart, La. Gen. 

Stats. (1939) Secs. 9311.1-9311.4. In its Louisiana decision the Court made 

clear what was implicit in California, that it was making no determination 

“on the power of a State to extend, define, or establish its external territorial 

limits or on the consequences of any such extension vis a vis persons other 

than the United States or those acting on behalf of or pursuant to its 

authority. The matter of state boundaries has no bearing on the present 

problem.” United States v. Louisiana, 339 U.S. 699, 705 (1950). 

The Court concluded that there were no distinctions between Louisiana 

and California that would alter the outcome. With respect to Louisiana’s 

27-mile claim it explained that “if . . . the three-mile belt is in the domain 

of the Nation rather than that of the separate States, it follows a fortiori that 

the ocean beyond that limit is also. The ocean seaward of the marginal belt 

is perhaps even more directly related to the national defense, the conduct of 

foreign affairs, and world commerce than is the marginal sea. Certainly it is 

not less so.” Id. 

Louisiana stood in no better stead than had California and the Court 

ruled that its earlier opinion controlled. A decree was entered 

acknowledging the federal government’s “paramount rights in, and full 

dominion and power over” all lands within 27 miles of Louisiana’s coast. 

United States v. Louisiana, 340 U.S. 899 (1950). 

UNITED STATES V. TEXAS: THE PRE-ADMISSION BOUNDARY 

Texas presented a previously unconsidered, and presumably more 

difficult, legal question for the Supreme Court. 

California, we recall, lost its claim to offshore resources because it 

wrongly assumed that the original states had entered the Union with rights 

in the marginal sea and that it acquired similar interests under the equal 

footing doctrine. The Court found that England had not claimed a marginal 

sea prior to 1776 and, therefore, the original states succeeded to no such 

rights. Texas, however, stood on entirely different ground. 

Prior to its admission to the Union, Texas was neither an English colony 

nor an American territory. It was a sovereign republic, proclaimed as such 

in 1836 and soon thereafter formally recognized by the United States and 

the community of nations. United States v. Texas, 339 U.S. 707, 713 (1950). 
12 Shore and Sea Boundaries 

At the time of American recognition, Texas had a statutory boundary 

running 3 marine leagues offshore in the Gulf of Mexico. 1 Laws, Rep. of 

Texas, p. 133, December 19, 1836.16 It seemed indisputable that, at least 

during that period, Texas held both dominium (property rights) and 

imperium (governmental powers) in its marginal belt. 

Nine years later Texas joined the United States. Discussions leading up 

to that union involved, among other things, title to public lands within the 

new state and responsibility for its public debt. In a trade-off it was agreed 

that Texas would “retain all the vacant and unappropriated lands lying 

within its limits, to be applied to the payment of the debts and liabilities of 

said Republic of Texas, and the residue of said lands are . . . to be disposed 

of as said State may direct; but in no event are said debts and liabilities to 

become a charge upon the Government of the United States.” Joint 

Resolution [annexing Texas] approved March 1, 1845, 5 Stat. 797.17 

Texas had two arguments not available to California and Louisiana. It 

had sovereignty over a marginal sea prior to joining the Union and, it 

contended, the submerged lands below were among those “vacant and 

unappropriated lands” that the republic had specifically retained at 

statehood when the federal government refused to assume its liabilities. 

The United States argued that the term “vacant lands” was never 

intended to include submerged lands. But the Court’s approach made that 

question moot. It returned to the equal footing doctrine as the foundation 

of its analysis. Conceding that the Republic of Texas held full sovereignty 

over the marginal sea, and “all the riches that it held,” the Court went on to 

describe the necessary legal consequence of its joining the Union. At that 

point, it said, “she . . . became a sister State on an ‘equal footing’ with all the 

other States. That act concededly entailed a relinquishment of some of her 

sovereignty. The United States then took her place as respects foreign 

commerce, the waging of war, the making of treaties, defense of the shores, 

and the like. In external affairs the United States became the sole and 

exclusive spokesman for the Nation.” 339 U.S. at 717-718. And, critically, it 

held that “as an incident to the transfer of that sovereignty any claim that 

Texas may have had to the marginal sea was relinquished to the United 

States.” Id. at 718. 

Though Texas contended, and the Court recognized, that property rights 

and sovereignty are normally separable, it was not to be in these 

16. A marine league is equivalent to 3 nautical miles. United States v. Louisiana et al., 363 U.S. 1, 9 n.6 

(1960). The 9-mile claim was not unusual at that time for nations with a Spanish heritage. 

17. Texas did cede to the United States specified defense fortifications within its boundaries and “all other 

property and means pertaining to the public defense.” 339 U.S. at 714. The United States, undoubtedly 

buoyed by the Court’s emphasis on defense interests in the California decision, argued that the marginal seas 

were a defense necessity and, therefore, fell within the cession. The Court ruled on different grounds. 

Part One 13 

circumstances. The Court concluded that “this is an instance where 

property interests are so subordinated to the rights of sovereignty as to 

follow sovereignty.” Id. at 719. By way of explanation the Court expanded 

on its reasoning from the California decision saying “once the low-water 

mark is passed the international domain is reached. Property rights must 

then be so subordinated to political rights as in substance to coalesce and 

unite in the national sovereign. Today the controversy is over oil. 

Tomorrow it may be over some other substance or mineral or perhaps the 

bed of the ocean itself. If the property, whatever it may be, lies seaward of 

low-water mark, its use, disposition, management, and control involve 

national interests and national responsibilities.” Id. 

It then focused on the equal footing element, holding for the first time 

that “the ‘equal footing’ clause prevents extension of the sovereignty of a 

State into a domain of political and sovereign power of the United States 

from which the other States have been excluded, just as it prevents a 

contraction of sovereignty . . . which would produce inequality among the 

States. For equality of States means that they are not ‘less or greater, or 

different in dignity or power.’” Id. at 719-720.18 

The original states had not entered the Union with offshore property 

rights; nor had subsequently admitted states from the territories. 

Consequently it mattered not that Texas had had such rights as a republic. 

It could join the Union only on an equal footing with its predecessors, 

which meant foregoing its offshore rights. 

The California, Louisiana, and Texas decisions had been anchored on a 

determination that the original states joined the Union with submerged 

lands rights that ended at the open sea. But the original states had not had 

their day in Court. They soon remedied that shortcoming. 

UNITED STATES V. MAINE: THE COLONIAL CHARTERS 

Despite the Supreme Court’s clearly and consistently stated rulings in 

the California, Louisiana, and Texas cases the East Coast states were 

determined to have a bite at the apple. The earlier tidelands cases had 

18. Interestingly, the Court was faced with the reverse of this question within four years. It could be said 

that the California, Louisiana, and especially the Texas decisions rested substantially on the Court’s insistence 

that an equality in offshore rights is essential to equal footing. In 1953 Congress granted offshore rights to the 

coastal states. 43 U.S.C. 1301 et seq. But it did not make equal grants. The states generally were given 3-mile 

belts of submerged lands. The Gulf Coast states, by contrast, were granted an opportunity to prove a right to 9 

miles. Texas and Florida did so. Alabama and Rhode Island attempted to sue, challenging the constitutionality 

of the Submerged Lands Act. The Supreme Court denied the states’ motions to file their complaints and found 

the Act a valid exercise of congressional authority to dispose of public property. Apparently the equal footing 

clause did not guarantee equal offshore rights after all. Alabama v. Texas et al., Rhode Island v. Louisiana et al., 

347 U.S. 272 (1954). Of course non-coastal states received no benefit at all. 
14 Shore and Sea Boundaries 

turned, in large part, on the Court’s understanding that the original colonies 

had no maritime rights in 1776. Yet the original states had not participated 

in those controversies, except in limited amici roles. All of the states 

bordering on the Atlantic claimed extensive property rights offshore and 

one, the State of Maine, issued leases to submerged lands claimed by the 

United States. In 1969 the federal government sought leave of the Supreme 

Court to file an Original action to clear its title.19 All of the Atlantic states 

were named as defendants and each (except Florida) claimed that its 

original colonial charter encompassed, in addition to uplands, a significant 

portion of the adjacent sea.20 

The federal government moved for judgment immediately, arguing that 

the California, Louisiana, and Texas decisions governed. The states moved for 

the appointment of a special master to take evidence, make findings of fact 

and conclusions of law, and recommend a decree to the Court. The states’ 

motion was granted and Judge Albert B. Maris of the United States Court of 

Appeals for the 2nd Circuit was appointed. 

In light of the tidelands precedents, the states appeared to face an uphill 

battle. But they proceeded undaunted. First, they argued that the prior 

cases were wrong in two respects. The Court, they said, had improperly 

concluded that the original states entered the Union with no offshore rights 

and that such rights would necessarily have been transferred to the national 

government at independence. Second, they said that Congress had 

subsequently repudiated the decisions. On these grounds, they argued, the 

earlier cases should be overruled. 

Special Master Maris questioned his authority to overrule the prior 

Supreme Court decisions but agreed, nevertheless, to hear the states’ 

evidence. Fourteen days of trial focused primarily on the history of English 

claims to its adjacent seas. Much of the documentary evidence to which the 

Court had been referred in the California case was introduced and 

commented upon by witnesses of international renown offered by both 

sides. The evidence was fascinating from a historical perspective. It began 

with English maritime positions before 1603, which the master found not 

to involve claims to property. United States v. Maine, et al., Report of the 

19. By this time the context differed from that in which the first three cases had been litigated. In 1953 

Congress passed the Submerged Lands Act giving the states all mineral rights within 3 miles (3 leagues for some 

Gulf states) of the coast. 43 U.S.C. 1301 et seq. So unlike California, Louisiana and Texas, the Atlantic states 

were not fighting for that belt. Rather they were reaching for property beyond the 3-mile limit, sometimes as 

much as 100 miles offshore. 

20. Florida based its claim on its constitutional boundary, rather than a colonial charter, and soon asked 

to be severed from the Maine case, arguing that its contentions raised factual questions having nothing in 

common with the issues raised by the other Atlantic states. Florida was severed and its issues were consolidated 

with others pending from U.S. v. Louisiana et al., Number 9 Original. The new case was denominated 52 

Original and assigned to the Honorable Albert B. Maris, who was also handling the Maine case for the Court. 

Part One 15 

Special Master of August 27, 1974 at 27.21 Continued through the Stuart era 

(1603-1688), during which property interests could be said to have been 

claimed. Report at 29-40. Became limited to the nebulous concept of a 

narrow coastal belt in the 18th century. Report at 40-47. And eventually 

evolved, in the 19th century, to the 3-mile belt that caught on and became 

the international standard for most of a century. Id. But the master 

concluded that “when in 1776 the American colonies achieved 

independence and when in 1783 the Treaty of Paris was concluded, neither 

the British crown nor the colonies individually had any right of ownership 

of the seabed of the sea adjacent to the American coast, except for those 

limited areas, if any, which they had actually occupied.” Report at 47. 

The states also contended that the charters contained boundaries into 

the sea of up to 100 miles offshore. The master thoroughly reviewed the 

charters and considered the states’ contentions but found no evidence of 

maritime boundaries. Report at 47-56. 

In response to the Supreme Court’s oft repeated rationale that what 

happens seaward of the coastline is matter for the federal government in the 

conduct of foreign affairs, the states offered testimony that a ruling on their 

behalf “would not inhibit or embarrass the federal government in carrying 

out its foreign affairs and defense responsibilities.” Report at 23. 

Nevertheless, the master understood the Court to have been referring not to 

a factual question of the relative needs of the state and federal governments 

but to a legal, constitutional principle that the federal government’s 

responsibility for foreign commerce, foreign affairs, and national defense 

dictated federal paramountcy in the marginal sea. 

Judge Maris concluded that the Supreme Court had been correct in prior 

tidelands decisions. The historic evidence suggested no basis for their 

reversal. He turned next to the states’ contention that the prior cases had 

been repudiated by Congress. 

In summary, the states contended that by granting them a maritime belt 

to undo the result of the earlier Supreme Court decisions Congress was 

indicating that its responsibilities for conducting foreign affairs, commerce, 

and defense could be carried out without a paramount right to minerals in 

the territorial sea. But in so arguing, the states seemed to ignore the 

obvious. The Atlantic Coast states were not fighting for a 3-mile belt, but 

for a vast area beyond. The master rejected their argument reasoning that 

21. Hereinafter “Report at [page number].” As with all of the tidelands cases in which special masters were 

involved, much of the analysis necessary to understand the case and its resolution is contained in the Reports 

of those masters. Unfortunately those Reports are not readily available to the legal researcher. They can, of 

course, be reviewed at the Supreme Court. All of the Reports discussed in this volume except those in United 

States v. Alaska, Number 84 Original; New Hampshire v. Maine, Number 64 Original; and Georgia v. South 

Carolina, Number 74 Original, have been collected in a volume with the cumbersome title, The Reports of the 

Special Masters of the Supreme Court in the Submerged Lands Cases 1949-1987 (1991) by Reed, Koester and Briscoe. 
16 Shore and Sea Boundaries 

rather than repudiating the Court’s decisions Congress was actually acting 

pursuant to them. Congress disposed of a narrow belt to the states and, 

much more significantly, it made clear that the submerged lands seaward of 

that belt were being retained by the federal government. Report at 17-19, 

citing 43 U.S.C. 1302. As the Master explained, “Congress could reserve to 

the federal government all rights to the seabed of the continental shelf 

beyond the three-mile territorial belt of sea (or three leagues in the case of 

certain Gulf states) only upon the basis that it already had the paramount 

right to that seabed under the rule laid down in the California case.” Report 

at 19. The Atlantic states were seeking only areas that Congress had 

expressly retained for itself. The Master recommended judgment for the 

United States. 

The states took exception to the master’s findings and recommendation. 

But the Court adopted the Report en toto. It confirmed the master’s 

understanding that prior tidelands decisions had not depended on an 

absence of prior ownership. The Texas decision made clear that a 

constitutional principle prevented a state from retaining rights in a 

maritime belt upon joining the Union. United States v. Maine, 420 U.S. 515, 

522-523 (1975). 

The Court also commented on the contention that Congress had 

repudiated the bases for the earlier decisions, saying “it is our view, contrary 

to the contentions of the States, that the premise was embraced rather than 

repudiated by Congress in the Submerged Lands Act . . . .” Id. at 524. The 

congressional transfer, it pointed out, was merely an exercise of the federal 

government’s paramount authority in the area. And, agreeing with its 

master, the Court noted that as part of the granting legislation Congress had 

expressly provided that nothing therein “shall be deemed to affect in any 

wise the rights of the United States to . . . [those same resources] lying 

seaward and outside of [the granted belt], all of which natural resources 

appertain to the United States, and the jurisdiction and control of which by 

the United States is confirmed.” Id. at 525- 526, quoting 43 U.S.C. 1302. A 

decree acknowledging the exclusive federal right to lands and resources 

seaward of the grant to the states was entered. United States v. Maine, et al. , 

423 U.S. 1 (1975). 

This then was the end of state offshore claims on bases other than the 

Submerged Lands Act. According to the Court, “a principal purpose of [the 

Submerged Lands Act] was to resolve the ‘interminable litigation’ arising 

over the controversy of the ownership of the lands underlying the marginal 

sea.” 423 U.S. at 527, citing H.R. Rep. No. 215, 83rd Cong., 1st Sess., 2 

(1953). If that was so, the Congress has been mightily disappointed. 

Litigation over who owns resources in the marginal belt was immediately 

replaced by a plethora of lawsuits to determine the outer limit of the 

Part One 17 

congressional grant. After a short detour to look at the terms of the grant 

itself we will continue with a review of those cases and the law that they 

have produced. 
CHAPTER 2 

THE SUBMERGED LANDS ACT 

In 1945, the same year that the United States filed its complaint in 

United States v. California (and two years before the Supreme Court 

announced its decision), Congress began to consider legislation that would 

convey federal interests in the marginal sea to the states. The express 

purpose of later bills was “to preserve the status quo as it was thought to be 

prior to the California decision.” H.R. Rep. No. 1778, 80th Cong., 2d Sess., 

to accompany H.R. 5992, at 2 (April 21, 1948). That is, to fix “as the law of 

the land that which, throughout our history prior to the Supreme Court 

decision in the California case in 1947, was generally believed and accepted 

to be the law of the land; namely, that the respective states are the sovereign 

owners of the land beneath navigable waters within their boundaries and of 

the natural resources within such lands and waters.” H.R. Rep. No. 695, 

82nd Cong., 1st Sess., to accompany H.R. 4484, at 5 (July 12, 1951).22 

Early bills made it through the Congress but were vetoed by President 

Truman. Id. at 22 n.25. The subject became a matter of presidential politics 

in the election of 1952 when General Eisenhower pledged to sign such 

legislation if given the opportunity. He was, of course, elected and on May 

22, 1953, the Submerged Lands Act was signed into law.23 

Trying to discern what the states actually got from the Act can be 

confusing because of the way in which Congress seemingly modified the 

grant provision through the definitions section. But its upshot can be 

summarized as follows: 

All coastal states were granted submerged lands, and natural resources 

rights, to a distance of 3 nautical miles from their coast lines, defined as the 

line of ordinary low water and the seaward limit of inland waters.24 

The five Gulf Coast states were given an opportunity to prove the 

existence of boundaries of up to 9 nautical miles. (Here the pre-admission 

boundaries played a role.) 

22. Although the states typically sought to recover “lands within their boundaries” or “lands within their 

boundaries at the time they entered the Union,” Attorney General Clark reminded Congress that of the original 

11 coastal states none had expressly claimed a 3-mile offshore boundary at the formation of the Union, and 

only 5 had subsequently done so. United States v. Louisiana, 363 U.S. 1, 21 n.22 (1960). 

23. Public Law 31, 83rd Congress, 1st Session; 67 Stat. 29; 43 U.S.C. 1301 et seq. 

24. One must sift through some of the confusion to reach this characterization. Section 3 of the Act 

makes a grant of “lands beneath navigable waters within the boundaries of the respective States” including their 

natural resources. That language alone might have encouraged coastal states to renew their claims to 

extraordinary maritime boundaries. However, in its definitions section Congress provided that “in no event 

shall the term ‘boundaries’ or the term ‘lands beneath navigable waters’ be interpreted as extending from the 

coast line more than three geographical [nautical] miles into the Atlantic Ocean or the Pacific Ocean, or more 

than three marine leagues [nine nautical miles] into the Gulf of Mexico.” Section 3(b). 

Part One 19 

Existing 3-mile boundaries were approved as were future state claims to 

that distance. 

States bordering on Lakes Superior, Huron, Erie, and Ontario had their 

jurisdictions confirmed to the international boundary with Canada.25 

Other inland waters and their beds were confirmed to the states.26 

The grant included title to natural resources within the marginal sea, 

including oil, gas, other unspecified minerals, fish, shrimp, oysters, clams, 

crabs, lobsters, sponges, kelp, and “other marine animal and plant life.” 

Water power was specifically excluded from the definition of natural 

resources. 

Explicitly excluded from the grant were lands: acquired by the federal 

government, retained by it at the time of statehood, or presently occupied 

under claim of right. In addition, the federal government retained its 

navigational servitude. 

Finally, and perhaps most important, Congress disclaimed any effect on 

federal interests seaward of the grant.27 

But Congress did not make all of the coastal states happy. Within 

months of its passage, the Submerged Lands Act was attacked as 

unconstitutional. Alabama and Rhode Island, in separate motions, went 

directly to the Supreme Court, asking that it entertain another Original 

action. They sought to sue Texas, Louisiana, Florida, and California and the 

secretaries of the treasury, navy, and interior, as well as the treasurer of the 

United States.28 

The states raised two constitutional questions. First, they alleged that 

the Submerged Lands Act’s purported grant went beyond Congress’s power 

to dispose of public lands because, unlike uplands, the submerged lands 

and their natural resources were held in trust for all the states. Second, they 

alleged that the grant violated the equal footing clause in two specifics. It 

was said to constitute “unequal” treatment because only the defendant 

states were thought, at the time, to have valuable offshore minerals. And, 

25. That boundary divides the lakes between Canada and the United States. Their waters are considered 

inland by both nations (that is to say there is no territorial sea extending 3 miles from their shores nor high 

seas in their centers). The federal government had not questioned the right of the individual states to the beds 

of those lakes. 

26. Again, the federal government had not questioned the states’ right to inland waters, either bays, rivers 

and lakes or the coastal tidelands. But those waters were included within the Act lest the federal government 

change its mind, as it had done with the maritime belt. 

27. Less than three months later the Outer Continental Shelf Lands Act became law. Public Law 212, 83rd 

Congress, 1st Sess., 67 Stat. 462, 43 U.S.C. 1331 et seq. Through it Congress specifically asserted federal 

jurisdiction over that portion of the continental shelf lying seaward of the grant to the states and set up a 

scheme for the federal administration of its minerals. 

28. The State of Arkansas had already filed a similar challenge to the Act’s constitutionality in the United 

States District for the District of Arkansas. Only federal officials were named as defendants there. The issues 

in that case became moot when the Supreme Court ruled in the Alabama and Rhode Island actions. 

18 
20 Shore and Sea Boundaries 

because certain Gulf states would enjoy a 9-mile grant while others got only 

3 miles.29 

In an unusual step the Court denied the states’ motions even to file 

complaints. Its per curiam opinion of March 15, 1954, disposed of each of 

their contentions in less than a page.30 

The Court tersely stated that “the power of Congress to dispose of any 

kind of property belonging to the United States ‘is vested in Congress 

without limitation.’” Alabama v. Texas, 347 U.S. 272, 273 (1954). It went 

on, quoting from United States v. Midwest Oil Company, “for it must be borne 

in mind that Congress not only has a legislative power over the public 

domain, but it also exercises the powers of the proprietor therein. Congress 

may deal with such lands precisely as a private individual may deal with his 

farming property.” 236 U.S. 459, 474. That congressional authority comes 

from Article IV, Section 3, Clause 2 of the Constitution, which provides that 

“Congress shall have the power to dispose of and make all needful Rules 

and Regulations respecting the Territory and other Property belonging to the 

United States.” 

The Court did not deny that the federal government holds lands in 

“trust” for all citizens, but held that the Constitution leaves it to Congress 

alone to determine how to administer that trust. Id. at 273. That power, it 

said, “is without limitation.” Citing United States v. San Francisco, 310 U.S. 

16, 29-30 (1940).31 

The Court was clear. The Submerged Lands Act is constitutional even 

though it is a step backward from equal footing. Under the Constitution, 

Congress could administer the public lands without help from the judiciary. 

But the per curiam decision in Alabama v. Texas seems to assume a fact 

not previously decided. In the original California case the federal 

government asked the Court to declare its complete title to the lands 

beneath the marginal sea. The Court refused to do so, going so far as to 

delete such language from a draft decree offered by the United States. 

Instead, the Court found the United States to have “paramount rights” in 

the area. After the California decision, scholars debated whether that term 

described something more or less than fee title. The Court may have settled 

29. States with no coastline were in an even more “unequal” position. 

30. A per curiam opinion, literally “by the court,” does not carry the name of a particular justice as author. 

More typically the author of a decision is identified as are other justices who have joined in that opinion. 

31. See also, on this authority over public lands, Camfield v. United States, 167 U.S. 524 

(1897); and Light v. United States, 220 U.S. 536 (1911). 

Part One 21 

that argument, unintentionally, in the Alabama case. 

Article IV of the Constitution, and the prior judicial decisions relied 

upon in Alabama v. Texas, clearly apply to property rights. If the Act is 

constitutional because it reflects an exercise of Congress’s unfettered 

authority over federal property, then it is difficult to see why the decree 

proposed by the United States in the California case was not entered by 

the Court. 

Justice Reed, concurring in the per curiam opinion, sought to shed some 

light on this issue. He acknowledged that the Court had not previously 

recognized federal proprietorship over the submerged lands beneath the 

marginal sea. Nevertheless, he pointed out, the Court had recognized the 

federal government’s paramount rights “an incident to which is full 

dominion over the resources of the soil under that water area, including 

oil.” Id. at 275; quoting United States v. California, 332 U.S. at 38-39. “This 

incident,” Justice Reed went on to say, “is a property right and Congress had 

unlimited power to dispose of it.” 347 U.S. at 275. Justice Reed appreciated 

the fact that if the Court’s rationale relied upon congressional authority over 

federal property, someone had better define the property interest involved. 

He seems to conclude that the minerals beneath the surface are property 

and fit the bill. Most readers would probably assume from the per curiam 

opinion that the Court was referring to the seabed itself when using the 

terms “property, public lands, and public domain.” It made no such clear 

statement. The concurring opinion sought to fill the gap without 

concluding that the seabed was, necessarily, the federal “property” being 

disposed of. Id. at 275-276.32 

Of course the ownership issue is moot for Submerged Lands Act 

purposes. The states now have whatever rights the federal government once 

held to the submerged lands beneath the 3-mile marginal sea. The Supreme 

Court has found the congressional grant to be constitutional and there is no 

appeal from that ruling. But we have spent time with the nature of the prior 

federal interest because it may have some bearing on other future issues. For 

example, federal environmental legislation sometimes imposes cleanup 

liability on anyone in a “property’s” chain of title. The relevance of prior 

title may emerge in untold circumstances that are entirely unrelated to 

traditional tidelands litigation. Whether the federal government ever had 

32. Congress had avoided that problem by simply quit claiming “all right, title, and interest of the United 

States, if any it has, in and to all said lands, improvements, and natural resources.” Section 3(b)(1). Its purpose 

was achieved without entering the fray over seabed ownership. 
22 Shore and Sea Boundaries 

“title” to the bed of the marginal sea does not seem to have been resolved.33 

Any hope that the Submerged Lands Act would put an end to tidelands 

litigation was short lived. Most federal legislation seems to be followed by 

a spate of litigation to resolve questions either not foreseen by Congress or 

deliberately left unresolved in its give and take process. The Submerged 

Lands Act was no exception. Many questions were left to be answered 

before the state and federal land managers could define the boundary that 

separates their offshore domains.34 We turn now to a consideration of the 

numerous Supreme Court decisions that have produced that boundary and, 

at the same time, put meat on the bones of international maritime 

boundary law. 

33. Two justices also wrote dissents to the per curiam opinion. Justice Black saw the controversy as too 

important to dispose of without full consideration and would have permitted the case to go forward. He 

strongly felt that the marginal sea is so central to our international relations that its administration should not 

be delegated to the states. He also expressed concern about the possibility that one state might discriminate 

against citizens of other states if given jurisdiction over resources of the marginal sea. Id. at 278-279. 

Justice Douglas followed Justice Black’s lead in expressing concern over the abdication to the states of 

responsibility for an area of national interest. But he chose an odd example to make the point. He asked, 

apparently rhetorically, “could Congress cede the great Columbia River or the mighty Mississippi to a State or 

a power company? I should think not. For they are arteries of commerce that attach to the national sovereignty 

and remain there until and unless the Constitution is changed . . . . It therefore would seem that unless we are 

to change our form of government, that domain must by its very nature attach to the National Government and 

the authority over it remain nondelegable.” Id. at 282. Of course the Columbia and Mississippi had already 

been “ceded” to the states through which they pass. They are both navigable rivers, the beds of which were only 

held in trust by the federal government for the future states. The Supreme Court made that clear in Pollard v. 

Hagan, 44 U.S. (3 How.) 212 (1845). That title has not been contested in any of the tidelands cases. The 

Submerged Lands Act did not give the states more offshore than they had in inland navigable waters. States 

have, since 1953, administered their interests in the marginal sea without a threat to our form of government. 

34. It is an interesting footnote to this history to note that the attorney general sought to avoid that 

litigation by asking Congress to include with the Submerged Lands Act a map with a line separating federal and 

state interests in the sea. Hearings before Committee on Interior and Insular Affairs on S.J. Res. 13 and other 

Bills, 83rd Cong., 1st sess. 926 (1953). Had that course been adopted we could end our discussion here. 

CHAPTER 3 

THE SUBMERGED LANDS ACT ISSUES 

Having ruled the Submerged Lands Act constitutional, the Supreme 

Court became almost immediately embroiled in litigation associated with 

its implementation. Congress left two critical questions unanswered in the 

Act; they were the breadth of the grant as to any given coastal state and the 

baseline from which the grant was to be measured. Both issues were 

foreseen but left for judicial determination. 

INTERPRETING THE SUBMERGED LANDS ACT 

The extent of a given state’s Submerged Lands Act grant depended upon 

whether either of two specific provisions applied to it. The first was the 

extraordinary 9-mile grant available to Gulf Coast states that could prove 

historic offshore boundaries of that breadth. All five Gulf states sought to 

prove such boundaries. Only two succeeded. The second consideration was 

Section 5 of the Act that provided exceptions that might prevent transfer of 

certain submerged lands within 3 (or 9) miles of the coast line. 

These “non-coast line” questions have played an important part in 

tidelands litigation. 

The Geographic Extent of the Grant 

Although members of Congress often described their purpose as 

“putting the states in the position that they were thought to hold prior to 

the Supreme Court’s decision in the first California case” or “conveying 

interests to the limits of state boundaries in the sea,” in fact the grant was 

much more precise. As a general proposition it gave the coastal states 

specified rights within 3 nautical miles of the shore. No matter if a state’s 

boundary lay more than 3 miles offshore, it got only that distance. In the 

converse, if a state had no offshore boundary, or one of less than 3 miles, it 

was authorized to amend its boundary to take advantage of the 

3-mile grant. 

There was one significant exception. Gulf Coast states were granted up 

to 3 marine leagues (9 nautical miles) if they had entered the Union with a 

more expansive boundary or such a boundary had been “heretofore 

approved by Congress.” All Gulf Coast states claimed the 9-mile grant. The 

United States filed an Original action in which they were all joined. It 

claimed that none was entitled to more than 3 nautical miles. The Supreme 

Court again considered the case without the help of a special master, relying 

23 
24 Shore and Sea Boundaries 

on the parties’ pleadings and volumes of historic documents. 

It quickly dismissed the general contentions of both sides denying, for 

example, the federal claim that no state could have a boundary seaward of 

that claimed by the nation and the states’ allegation that the Act granted 

each of them an automatic 3-league belt.35 Instead, the Court concluded, it 

was bound to test the evidence of each claimant state against the criteria set 

out in the Act. It described the Act as having created a “twofold test” for 

acquiring a 3-league grant. Either the state had to show that it had 

boundaries in excess of 3 nautical miles at the time of its admission to the 

Union or it had to show that Congress had subsequently approved such a 

boundary. Id. at 27. The Court then turned to an analysis of each of the 

state’s evidence.36 

Texas demanded a majority of the Court’s attention and 30 pages of the 

majority opinion. Texas declared independence from Mexico in 1836. That 

same year it enacted boundary legislation that included a 3-league marginal 

belt.37 Within a year of its independence the United States recognized the 

Republic of Texas and in 1845 Texas joined our Union. Id. at 37. 

The question for the Court was whether Texas had a 3-league boundary 

at the time of its admission. Although its 1836 statutory boundary 

remained on the books, no boundary was included in the Annexation 

Resolution. What is more, Congress was well aware that Texas and Mexico 

had serious disagreements as to the boundary of the republic. Weighing in 

favor of Texas was the fact that only land boundaries were in dispute 

(Mexico had not contested the maritime boundary). But the Court also 

looked to post-admission federal positions in approaching the issue. It 

pointed out that the United States government pursued the Texas boundary 

position in subsequent negotiations with Mexico and that the resolution, 

incorporated into the Treaty of Guadalupe-Hidalgo, 9 Stat. 922, was a 

boundary between the two countries that commenced 3 leagues offshore. 

Id. at 58. That boundary was reaffirmed in the Gadsden Treaty of 1853, 10 

35. In response to the federal position the Court reasoned that the Act had “purely domestic” purposes 

that created no irreconcilable conflict with the executive’s international policy. United States v. Louisiana, 363 

U.S. 1, 33 (1960). In other words, a state might have boundaries, for domestic purposes, which extend beyond 

our national boundaries. 

The Court went to some lengths to distinguish between the powers of the executive and those of the 

legislature in these circumstances. Here it was the legislative branch, exercising its power to admit new states, 

that produced a 3-league maritime boundary. The executive’s role in negotiating that boundary was an exercise 

of delegated authority from Congress, not a separate exercise of its own foreign affairs powers. According to 

the Court “the two powers can operate independently, and only the first is determinative in this case.” 

Id. at 57. 

36. The majority opinion, written by Justice Harlan, contains a thorough political history of the Gulf 

states, with particular emphasis on Texas. 

37. The relevant portion of the boundary was described as “beginning at the mouth of the Sabine river, 

and running west along the Gulf of Mexico ‘three leagues from the land,’ to the mouth of the Rio Grande . . . . ” 

United States v. Louisiana, 363 U.S. at 36. 

Part One 25 

Stat. 1031, and later international agreements. Id. at 61, n.104. Finally, the 

Court pointed to legislative history of the Submerged Lands Act that clearly 

expressed an intent to restore Texas’s 3-league jurisdiction. It noted that the 

last sentence of Section 4 of the Act “was added for the specific purpose of 

assuring that the boundary claims of Texas and Florida would be preserved.” 

Id. at 29.38 

In reaching its conclusion with respect to the Texas boundary the Court 

said “although the Submerged Lands Act requires that a State’s boundary in 

excess of three miles must have existed ‘at the time’ of its admission, that 

phrase was intended, in substance, to define a State’s present boundaries by 

reference to the events surrounding its admission. As such, it clearly 

includes a boundary which was fixed pursuant to a mandate establishing 

the terms of the State’s admission, even though the final execution of that 

mandate occurred a short time subsequent to admission.” Id. at 61-62. 

The Court concluded that “pursuant to the Annexation Resolution of 

1845, Texas’ maritime boundary was established at three leagues from its 

coast for domestic purposes.” Id. at 64.39 “Accordingly, Texas is entitled to 

a grant of three leagues from her coast under the Submerged Lands Act.” Id. 

Florida based its 3-league claim on alternative theories. Invoking both 

prongs of the “twofold” test, it contended that it had such boundaries at its 

original admission to the Union and that Congress had subsequently 

approved those boundaries. In a separate decision from that dealing with 

her sister Gulf Coast states, the Supreme Court concluded that it need only 

look at the latter position. United States v. Florida, 363 U.S. 121 (1960). 

The Court’s decision focused on Florida’s readmission to the Union 

following the Civil War. The sequence of events is interesting. Florida was 

a member of the Union prior to the Civil War. At that time it did not have 

a 3-league boundary. Id. at 140-141 (dissenting opinion of Justice Harlan). 

It renounced the Union at the time of the conflict. The Reconstruction Act, 

14 Stat. 428, required that the seceding states submit constitutions for 

congressional approval prior to their “readmission of Congressional 

representation.” Florida submitted a new constitution that, for the first 

time, included a boundary description claiming a 3-league marginal belt in 

the Gulf. 

Congress approved that constitution, among others, and Florida’s right 

to representation in Congress was restored. 15 Stat. 73. Florida cited this 

38. As to that point the Court was undoubtedly correct. The congressional delegations of Texas and 

Florida had played important roles in developing the Submerged Lands Act. If, seven years later, the Court had 

said that they had chosen the wrong words to carry out their clear intent those drafters would probably have 

been infuriated. 

39. Immediately thereafter the Court cautioned that “we intimate no view on the effectiveness of this 

boundary as against other nations.” Id. 
26 Shore and Sea Boundaries 

congressional approval as meeting the Submerged Lands Act requirement. 

The United States disagreed, arguing that Florida was not “admitted” to the 

Union in 1848 but was “readmitted” in that year. It had had no such 

boundary at its admission. Justice Harlan, in dissent, considered the 

distinction especially relevant, id. at 133-134, particularly since the 

legislative history of the readmission act included no indication that 

Congress intended to change Florida’s boundaries through readmission. 

But the majority concluded otherwise. It noted that the new 

constitution had been examined and approved as a whole, while parts of 

Georgia’s constitution were rejected. Id. at 126-127. Probably equally 

convincing was the fact that during consideration of the Submerged Lands 

Act “it was generally assumed that Congress had previously ‘approved’ 

[Florida’s] three-league boundaries.” Id. at 127-128. To top it off, Attorney 

General Brownell had acknowledged that “Florida’s west coast would not be 

limited to the general three-mile line.”40 

Whatever the validity of legal arguments, as with Texas, congressional 

intent was relatively clear. The Submerged Lands Act was probably written 

with the purpose of assuring Florida a 3-league grant in the Gulf. The 

majority had no difficulty concluding that “Congress in 1868 did approve 

Florida’s claim to a boundary three leagues from its shores,” id. at 128, and 

that approval “appears to be precisely the approval the [Submerged Lands] 

Act contemplates.” Id. at 125. Florida was acknowledged to have a 3-league 

belt of submerged lands in the Gulf of Mexico. 

For the Court’s treatment of the remaining Gulf Coast states we return 

to the primary opinion in United States v. Louisiana. Louisiana, Alabama, 

and Mississippi founded 3-league claims on identical theories. Each 

entered the Union with a boundary that ran through the uplands “to the 

Gulf of Mexico,” including all islands within either 3 or 6 leagues of the 

coast.41 The states argued that in each case Congress had fixed a state 

boundary the specified distance from the coast. The federal government 

took the position that the language was used to include any such islands as 

parts of the states but not the intervening waters. 

The Court accepted the federal argument. The boundary, it said, runs 

“to the Gulf” not “into” it, contemplating no territorial sea whatever. 363 

U.S. at 67-68. The Court also reviewed pre-admission history, as it had 

40. Hearings before Senate Committee on Interior and Insular Affairs on S.J. Res. 13, S. 294, S. 107 

amendment, and S.J. Res. 18, 83rd Cong., 1st Sess. 931. Cited at 363 U.S. 120, n.15. 

41. The language differed slightly among them. Louisiana’s boundary included calls “to the gulf of 

Mexico; thence, bounded by the said gulf, to the place of beginning, including all islands within three leagues 

of the coast . . . .” 2 Stat. 701, 702. Mississippi’s boundary ran “due south to the Gulf of Mexico, thence 

westwardly, including all the islands within six leagues of the shore . . . .” 2 Stat. 734. Alabama’s read “thence, 

due south, to the Gulf of Mexico; thence, eastwardly, including all islands within six leagues of the shore . . . .” 

3 Stat. 489, 490. 

Part One 27 

done with Texas, but here could find no evidence of prior maritime claims 

of any breadth. Id. at 71 (Louisiana), at 81 (Mississippi) and at 82 

(Alabama). The three states in the central Gulf could not establish a right 

to more than the general 3-nautical-mile maritime belt. Id. at 83. 

The 1960 Supreme Court decisions answered one of the questions that 

Congress had apparently found too controversial for resolution in the 

statute. The 3-league controversy was not, however, entirely concluded.42 

In United States v. Louisiana, 363 U.S. 1 (1960), the Supreme Court held 

that Texas qualified for the Submerged Lands Act grant of 3 marine leagues 

in the Gulf of Mexico, rather than the general 3-mile grant.43 However, 

when the state and federal representatives tried to define Texas’s offshore 

boundary they again came to loggerheads. The issue was whether the state’s 

3-league grant was to be measured from portions of the coast that had 

moved seaward since Texas’s admission to the Union.44 

In its second California opinion, 381 U.S. 139 (1965), the Supreme 

Court had recognized a congressional grant to be measured from the “coast 

line” and defined the “coast line” as an ambulatory line established 

according to the principles of the Geneva Convention on the Territorial Sea 

and the Contiguous Zone. Texas argued that it was therefore entitled to 3 

leagues from its modern coast line. But the Court distinguished the two 

cases. It explained that the Submerged Lands Act included two separate 

types of grants. United States v. Louisiana, 389 U.S. 155, 156 (1967). “The 

first is an ‘unconditional’ grant allowing each coastal state to claim a 

seaward boundary out to a line three geographical miles distant from its 

‘coast line.’ The second is a grant ‘conditioned’ upon a State’s prior history. 

It allows those States bordering on the Gulf of Mexico, which at the time of 

their entry into the Union had a seaward boundary beyond three miles, to 

claim this historical boundary ‘as it existed at the time such State became a 

member of the Union,’ but with the maximum limitation that no State may 

claim more than ‘three marine leagues’. . . .” Id. 

42. Florida’s actual boundary was eventually established in United States v. Florida, Number 52 Original, 

an action that included the interesting question of where the Atlantic Ocean ends and the Gulf of Mexico 

begins. 

43. Actually the two decisions to be discussed here arise from United States v. Louisiana, which included at 

one time or another all of the Gulf Coast states. Only the United States and Texas were parties to these 

particular controversies, however, and the term Texas Boundary Case, as used by the Court in its 1969 decision, 

helps to differentiate these phases from the other numerous opinions. 

44. The specific coastal features are substantial artificial jetties at the mouth of the Sabine River but the 

principles involved, and the Court’s decision, apply equally to any post-admission accretion along the Gulf 

coasts of Texas and Florida. Interestingly, these same jetties became the central focus of a later action, Texas v. 

Louisiana, No. 36 Original. That litigation, among other things, dealt with the lateral offshore boundary 

between those two states. The United States intervened to protect its outer continental shelf interests. Because 

Texas has a 9-mile grant, and Louisiana only 3 miles, the federal government had a vested interest in the 

location and extension of their mutual offshore boundary. 
28 Shore and Sea Boundaries 

As the Court saw the matter, its burden was to determine whether 

Congress intended the 3-league grants in the Gulf, which were based on 

historic boundaries, to be measured from a modern coast line. It thought 

not. Id. at 157. 

As the Court explained, Congress described the two types of grants in 

different ways. The standard 3-mile grant is to be measured from the coast 

line. Congress left the definition of that coast line to the courts, and our 

international, ambulatory coast line was adopted for the purpose. 381 U.S. 

at 165. But the 3-league grant is to be measured to a boundary “as it existed 

at the time such state became a member of the Union . . . .” 43 U.S.C. 1301. 

As the Court explained, “what Congress has done is to take into 

consideration the special historical situations of a few Gulf States and 

provide that where they can prove ownership to submerged lands in excess 

of three miles at the time they entered the Union, these historical lands will 

be granted to them up to a limitation of three marine leagues. No new state 

boundary is being created . . . .” 389 U.S. at 159. Thus, the Court said, “the 

State of Texas, which has been allowed by the United States to claim a larger 

portion of submerged lands because of its historical situation, is limited in 

its claim by fixed historical boundaries.” Id. at 160. The Court pointed out 

that Texas could opt for the general 3-mile grant, or the more generous 3-

league provision, but it could not pick and choose the best features of both. 

Id. In short, Texas’s 3-league grant could not extend farther seaward than 

did her boundary on the date of admission to the Union. 

That settled, the Court was almost immediately confronted with the 

converse legal question. The parties reconstructed Texas’s 1845 coast line 

and projected a boundary 3 leagues seaward. The state then contended that 

its Submerged Lands Act grant was defined by that boundary. The United 

States disagreed and they were back before the Supreme Court. This time 

the controversy was prompted by erosion along portions of the coast. Texas 

contended that the erosion had no relevance; its grant was meant to extend 

to the 1845 boundary. If it could not benefit from subsequent accretion, as 

the Court had ruled just the year before, then it should not be penalized by 

subsequent erosion. 

The Court disagreed. It pointed out that the historic boundary was only 

a maximum and that Congress explicitly provided that it was not to extend 

more than 3 leagues from the “coast line.” 43 U.S.C. 1301. The Court had 

already determined that the term “coast line,” as applied to the 3-mile grant, 

is an ambulatory line. It reviewed the legislative history of the Submerged 

Lands Act and concluded that “there is no basis for a finding that ‘coast line’ 

has a different meaning for the purpose of determining the baseline for 

measurement of the three-league maximum limitation.” Texas Boundary 

Case, 394 U.S. l, 5 (1969). Further, “it seems evident that Congress meant 

Part One 29 

that the same ‘coast line’ should be the baseline of both the three-mile grant 

and the three-league limitation.” Id. 

A decree was entered that described Texas’s historic offshore boundary 

by precise coordinates and provided that the United States was entitled to 

lands, minerals, and other natural resources seaward of that line or more 

than 3 leagues from the present or future coast line. Texas Boundary Case, 

394 U.S. 836 (1969). 

In sum, the Court ruled in 1967 that the 3-league grant could not extend 

beyond the boundary location on the date of admission. In 1968 it 

determined that the grant could “ambulate” landward with coastal 

erosion.45 The result is a Submerged Lands Act boundary that is constructed 

by projecting 3-league lines from the 1845 and present coast lines and 

merging the more landward segments of each to produce a single line.46 

(Figure 1) Although Florida was not a party to the cases just discussed the 

principles adopted by the Court must apply equally to it. We turn now to 

an Original action in which both Texas and Florida were involved and that 

devolved from the consequence of different state and national boundaries. 

From the first of the legislative proposals to quitclaim offshore areas to 

the states, the federal government expressed concern that congressional 

recognition of state boundaries seaward of the 3-mile national claim might 

“embarrass” the government in its international relations. The State 

Department consistently took the position that it had never recognized 

offshore boundaries in excess of 3 nautical miles and the executive branch 

opposed the 3-league grants eventually provided to Texas and Florida. That 

opposition continued beyond passage of the Submerged Lands Act into the 

tidelands cases implementing it. 

In United States v. Louisiana, et al., the federal government had argued 

that federal supremacy in the field of international relations “worked a 

decisive limitation upon the extent of all state maritime boundaries for 

purposes of the Act.” 363 U.S. 1, 32-33 (1960). In other words, that 

executive branch position trumped any legislative effort to create more 

seaward boundaries. The Supreme Court disagreed, holding that the 

legislature had primary responsibility for the admission of new states to the 

Union and that authority was being exercised here. 

45. Texas has complained that this is an “inequitable result.” Sister states, who got only 3-mile grants, are 

not known to have expressed much sympathy. 

46. Although the process may seem cumbersome, with modern computer mapping it is not much more 

difficult than constructing the ambulatory boundary applicable to the traditional 3-mile grants. It should be 

noted that in 1976 Congress amended the Submerged Lands Act to provide that a boundary resolved by 

Supreme Court decree would thereafter remained fixed. Some states, such as Louisiana, have such fixed 

boundaries, making offshore leasing and lease administration more efficient than it is with ambulatory 

boundaries. The federal government is presently trying to reach boundary agreements with Texas and Florida 

which would fix their composite historic and modern boundaries. 
30 Shore and Sea Boundaries 

Figure 1. Texas's Submerged Lands Act grant. Texas's Submerged Lands Act grant 

is delimited using the lesser of 3 leagues from the modern or historic coast line. 

In so doing, however, the Court regularly emphasized what it described 

as the “purely domestic purposes of the Act.” Id. at 33. As it concluded, “in 

light of the purely domestic purposes of the Act, we see no irreconcilable 

conflict between the Executive policy relied on by the Government and the 

historical events claimed to have fixed seaward boundaries for some States 

in excess of three miles. We think that the Government’s contentions on 

this score rest on an oversimplification of the problem.” Id. And later, 

“there is no necessary conflict between the existence of a three-league 

territorial boundary for domestic purposes and the maintenance of the 

Executive’s policy on the limit to which this country will assert rights in the 

marginal seas as against other nations.” Id. at 64, n.107. 

The term “domestic purposes” seems to refer to the division of seabed 

minerals between the national government and the states, something which 

was clearly not of international import after the Truman Proclamation of 

1945, claiming resources of the entire continental shelf, and its codification 

Part One 31 

into international law in 1958.47 But mere use of the term ignores the other 

consequences of the Act. Minerals were not the only resources granted to 

the states. The grant included “natural resources” generally, which were 

defined to include fish, shrimp, and other living resources. In 1953 the 

United States did not typically claim jurisdiction over such resources 

beyond 3 miles of its coasts, yet it appeared to be recognizing Texas’s and 

Florida’s jurisdiction out to 9 miles. Although foreign nationals may not 

have exploited mineral resources off our coasts, they had a long tradition of 

fishing nearby. Fisheries rights produced some of this country’s first, and 

most bitterly fought, international controversies. 

It was not long before this “purely domestic” matter entered the 

international regime. Both Texas and Florida cited foreign fishing vessels for 

operating within their boundaries. The federal government was indeed 

“embarrassed” in its foreign relations and brought a new legal action, United 

States v. Florida and Texas, No. 54 Original, requesting a declaration from the 

Court that the states “lack jurisdiction” to enforce their fisheries laws against 

foreign vessels and crews in the 3- to 9-mile belt. 

A special master was appointed and procedural matters were dealt with 

but before the matter was tried on the merits the federal Fishery 

Conservation and Management Act became law. 16 U.S.C. 1801 et seq. That 

legislation outlawed all foreign fishing within 200 miles of our coasts, save 

only that specifically allowed by federal permit and then only for species 

being underutilized by American fishermen. It became clear that violations 

of the states’ 9-mile boundary would be highly unlikely under the new 

regime. 

Given the changed circumstance, the parties resolved the matter by 

agreement. The states conceded that only federal law would be enforced 

more than 3 miles offshore, while the United States agreed that state agents 

would be authorized to participate in the enforcement. As the parties’ 

subsequent Memorandum in Support of Joint Motion to Dismiss recited, 

“the agreements satisfy the United States that foreign fishing beyond the 

territorial sea will be addressed in a uniform, national manner, and they 

satisfy the States that the fishery resources of the waters from 3 to 9 miles 

off their coasts . . . will be protected from unauthorized fishing.” 

Memorandum and Motion of December 1977.48 The Joint Motion was 

granted and the case was dismissed. 434 U.S. 1031 (1978). 

Unique questions were raised in Number 54 and, at least academically, 

it would have been interesting to have them answered. For example, the 

47. Proclamation of September 28, 1945, 59 Stat. 884. Convention on the Continental Shelf, April 26, 

1958, 15 U.S.T. 471. 

48. The pleadings were signed by Solicitor General Wade McCree and Attorneys General Robert Shevin 

and John Hill for Florida and Texas respectively. 
32 Shore and Sea Boundaries 

Submerged Lands Act is clearly a quitclaim of existing federal interests. The 

grant conveys “all right, title, and interest of the United States, if any it has, 

in and to all said lands, improvements and natural resources . . . .” Section 

3(b)(1). In 1953 the federal government claimed an exclusive interest in 

the mineral resources at issue. Presumably it could pass those interests on 

to the states. But in 1953 it made no similar claim to fish and shrimp in the 

3- to 9-mile belt. Yet they were explicitly included in the Act among the 

resources granted. 

It is clear from the pre--Submerged Lands Act tidelands cases that the 

individual states did not come into the Union with offshore boundaries. If 

their sole source of maritime resources is the Submerged Lands Act grant it 

would seem to follow that they got only what the federal government had 

to give. What was the purpose and effect of purporting to make a grant of 

international resources? The question remains unanswered but someday it 

may have to be faced anew. 

To summarize our discussion of the Submerged Lands Act grant’s 

geographic extent it can now be said that Texas and Florida (on its Gulf 

coast) have exclusive rights to the resources within the more shoreward of 

their historic 3-league boundaries or 3 leagues of the present coasts. All 

other coastal states have similar rights measured 3 nautical miles from their 

present coast lines.49 

But, Congress excepted limited categories of lands from the grants. We 

turn now to a look at those exceptions. 

Exceptions to the Submerged Lands Act Grant50 

In 1953 Congress generally gave the coastal states the lands and natural 

resources within 3 nautical miles of their coast lines (or up to 9 nautical 

miles off Texas and the west coast of Florida). It withheld, however, limited 

areas that had previously been separately acquired or set aside for federal 

use.51 Although there are numerous federal installations and reserves whose 

boundaries extend into the territorial sea, their total area is de minimis in 

49. In fact, 3-mile Submerged Lands Act grants become fixed when established by Supreme Court decree. 

43 U.S.C. 1301(b). 

50. We note that the exceptions about to be discussed have no effect upon the seaward boundary of state 

jurisdiction or the baseline from which the territorial sea is measured. They simply carve out an area of 

continued federal property that would otherwise have gone to the state. 

51. Section 5 of the Submerged Lands Act, 43 U.S.C. 1313(a) excepts from the grant “[1] all tracts or 

parcels of land . . . lawfully and expressly acquired by the United States from any State or from any person in 

whom title had vested under the law of the State or the United States, and all lands which the United States 

lawfully holds under the law of the State; [2] all lands expressly retained by or ceded to the United States when 

the State entered the Union (otherwise than by a general retention or cession of lands underlying the marginal 

sea); [3] all lands acquired by the United States by eminent domain proceedings, purchase, cession, gift or 

otherwise in a proprietary capacity; [4] all lands filled in, built up, or otherwise reclaimed by the United States 

for its own use; and [5] any rights the United States has in lands presently and actually occupied by the United 

States under claim of right.” 

Part One 33 

comparison to what was conveyed. To date, only three such reserves have 

been the subject of tidelands litigation.52 

United States v. California 

In 1945 the tidelands litigation began over oil and gas rights off the 

coast of California. By 1977 three Supreme Court decrees had been entered, 

each more precisely defining the boundary between California and federal 

offshore rights. The fourth controversy arose over the harvest of giant sea 

kelp within 3 miles of the California coast. The state regularly leases areas 

of its seabed for the production of kelp. One area of interest was claimed 

by the Department of the Interior to fall within the boundaries of the 

Channel Islands National Monument. The state disagreed and sought a 

new decree from the Court establishing its right to the area. The United 

States responded that submerged lands within the Monument had not 

passed to California through the Submerged Lands Act, but had been 

reserved by the Congress. 

The Channel Islands National Monument was established by President 

Roosevelt in 1938 under authority of the Antiquities Act of 1906. The 

Antiquities Act provides, in pertinent part, that the president may set aside 

lands owned or controlled by the United States that possess particular 

historic, prehistoric, or other scientific significance. 16 U.S.C. 431. The 

original proclamation identified most of Anacapa and Santa Barbara Islands 

as the Monument.53 

In 1949 President Truman expanded the Monument’s boundaries to 

provide protection to nearby rocks and islets and, according to the federal 

government, a 1-mile belt of sea around each. Presidential Proclamation 

No. 2825, 63 Stat. 1258.54 California went to the Supreme Court, alleging 

that the submerged lands belonged to it for two reasons: only the islets and 

rocks were intended to be added in 1949 and, even if included, the 

submerged lands were returned to the state in 1953. The federal 

government responded that the submerged lands were intended to be 

included within the boundaries and remained part of the Monument 

pursuant to the final exception set out in the Submerged Lands Act grant. 

52. Other decisions, from the Supreme Court and lower federal courts, have considered the closely related 

question of federal reserves that include inland waters, usually rivers or lakes. These cases are governed by the 

Constitution’s equal footing doctrine, not the Submerged Lands Act. See, for example: Martin v. Waddell, 41 

U.S. (16 Pet.) 367 (1842) and Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845). See also: United States v. Alaska, 

423 F.2d 764 (9th Cir. 1970) cert. denied, 400 U.S. 967 (1970); Utah Div. Of State Lands v. United States, 482 

U.S. 193 (1987); and Montana v. United States, 450 U.S. 544 (1981). 

53. The United States had acquired title to these islands from Mexico in 1848 through the Treaty of 

Guadalupe-Hidalgo, 9 Stat. 922. It retained them as federal lands when California was admitted to the Union 

two years later. 9 Stat. 452. 

54. The Proclamation noted the importance of “islets and rocks” and went on to reserve “the areas within 

one nautical mile” of Anacapa and Santa Barbara. 
34 Shore and Sea Boundaries 

The federal position with respect to presidential intent was bolstered by 

the reservation of “areas within one nautical mile,” maps accompanying the 

Proclamation with a line encircling Anacapa and Santa Barbara 1 mile 

offshore, and acreage figures on the maps that corresponded to the land and 

water within the lines. (Figure 2) But the Court bypassed the question of 

intent, skipping directly to the Submerged Lands Act issue. 

The final clause of Section 5(a) of the Act exempts from the grant “any 

rights the United States has in lands presently and actually occupied by the 

United States under claim of right.” The parties stipulated that the 1-mile 

band of water and submerged lands was “presently and actually occupied” 

by the federal government. Thus, the issue for the Court was simply what 

right the federal government had in these submerged lands in 1953. 

California argued that the federal claim was only that applicable to the 

territorial sea generally. The United States took the position that its “claim 

of right” was also based upon monument designation under the Antiquities 

Act. The Court agreed with California.55 It found that Congress intended 

to reverse United States v. California, 332 U.S. 19 (1947), through the 

Submerged Lands Act.56 It found further that “the entire purpose of the 

Submerged Lands Act would have been nullified . . . if the ‘claim of right’ 

exemption saved claims of the United States based solely upon this Court’s 

1947 decision . . . .” United States v. California, 436 U.S. 32, 39 (1978). It 

reviewed legislative history and concluded that the “claim of right” 

provision “was added to preserve unperfected claims of federal title from 

extinction under Section 3’s general ‘conveyance or quitclaim or 

assignment.’” Id. at 38. The exemption, it said, neither validated nor 

prejudiced such claims. Id. at 39. The “claim of right” must arise from 

something other than the Court’s 1947 decision. 

The Court concluded that when President Truman expanded the 

Monument boundaries in 1949 the federal government had no basis for 

claiming ownership of the area other than the Paramount Rights Doctrine 

of the 1947 decision. Neither the Proclamation nor the Antiquities Act 

“enhances” that claim, and the Submerged Lands Act required more to 

support an exemption from the grant. The 5th exemption provision would, 

henceforth, require some specific source of federal title. 

Twenty years later the Court faced exemption arguments under another 

of Section 5’s provisions. 

55. Unlike most Original actions in the tidelands cases, this stage of the California case was not assigned 

to a special master. The parties agreed that their minor factual differences could be argued from a collection 

of documents put before the Court. 

56. It was that decision which recognized that the federal government, and not the states, held paramount 

rights seaward of the coast line. 

Part One 35 

Figure 2. Map attached to Presidential Proclamation No. 2825, 63 Stat. 1258, 

February 9, 1949. 
36 Shore and Sea Boundaries 

United States v. Alaska 

In 1979 the State of Alaska was preparing to lease submerged oil and gas 

lands in the area of Prudhoe Bay. The United States believed that some of 

the lands being offered were within federal jurisdiction and sought leave to 

file another tidelands case in the Supreme Court to establish its title to the 

contested area. Alaska acquiesced and United States v. Alaska, Number 84 

Original, was spawned. 

J. Keith Mann of Stanford Law School was appointed special master. 

Almost immediately the state filed a counterclaim, the purpose of which 

was to resolve all outstanding Submerged Lands Act issues between the 

parties pertaining to the north slope. The United States agreed. Among 

these issues were the parties’ respective rights along the coastal boundaries 

of two federal reservations, the National Petroleum Reserve--Alaska and the 

Arctic National Wildlife Refuge. Each raised questions as to the application 

of the exemption provision of the Submerged Lands Act.57 

The two federal properties had decidedly different histories but shared 

some characteristics that were relevant to the legal issues. First, at least 

under the federal view of the case, the submerged lands at issue lay beneath 

both inland waters and the territorial sea. That distinguished them from the 

Channel Islands case, just discussed, and the long line of Supreme Court 

precedents involving inland waters. Second, they brought into play a 

different clause of Section 5 (the exemption section) of the Submerged 

Lands Act than had been relied upon in United States v. California. And 

third, they required the Court to determine, for the first time, whether 

Congress could withhold submerged lands for its own purposes at 

statehood as well as distribute them to private parties, the latter proposition 

having been long since established. Shively v. Bowlby, 152 U.S. 1, 48 (1894). 

As to the first proposition, the United States took the position that a 

different presumption applies when determining whether inland waters 

have been withheld at statehood than is relevant in evaluating a claimed 

exception to the Submerged Lands Act grant. It is well established that there 

is a strong presumption that lands beneath inland navigable waters will 

devolve to a state upon its admission to the Union. No intent to defeat state 

title will be inferred “unless the intention was definitely declared or 

otherwise made very plain.” United States v. Holt State Bank, 270 U.S. 49, 55 

(1926). That statement of law derives from the equal footing doctrine of 

the Constitution and was not questioned by the federal government in the 

Alaska case. 

However, the same presumption had never been applied to offshore 

submerged lands. They did not go to the states pursuant to the equal 

57. We limit our discussion here to those issues. Other questions, related primarily to coast line 

delimitation, are discussed at length below. 

Part One 37 

footing doctrine. The Supreme Court had determined that in the 1947 

California decision. 332 U.S. 19. Rather they were grants from Congress 

made necessary by that decision, and federal grants of land carry a contrary 

presumption. They are to be strictly construed in favor of the United States. 

California ex rel. State Lands Commission v. United States, 457 U.S. 273, 287 

(1982). Thus, the United States argued here, any effort to defeat state title 

to such lands should not have to be “definitely declared or otherwise made 

very plain.” 

The special master accepted that reasoning, concluding that “different 

presumptions apply to submerged lands inside the Reserve boundary, 

depending on whether the waters are territorial or inland.” United States v. 

Alaska, Report of the Special Master of March 1996 at 394. Nevertheless, he 

applied the stricter inland water standard in his analysis and concluded that 

even it had been met. Id. 

The Supreme Court accepted the master’s conclusion on the ultimate 

issue under consideration but went to some length to reject the federal 

proposition as to presumptions. The Court conceded that the Submerged 

Lands Act is a federal grant, but pointed out that the exemption clause being 

relied upon required that the United States have “expressly retained” lands 

to avoid transfer. Because of this, it explained, “we cannot resolve ‘doubts’ 

about whether the United States has withheld state title to submerged lands 

beneath the territorial sea in the United States’ favor, for doing so would 

require us to find an ‘express’ retention where none exists.” United States v. 

Alaska, 521 U.S. 1, 35 (1997). It went on to say that “in construing a single 

federal instrument creating a reserve, we see no reason to apply the phrase 

‘expressly retained’ differently depending upon whether the lands in 

question would pass to a state by virtue of a statutory grant or by virtue of 

the equal footing doctrine, as confirmed by statute.” Id. at 36.58 

The exemption in question is found in the second clause of Section 5 

and excepts from the general grant “all lands expressly retained by or ceded 

to the United States when the State entered the Union (otherwise than by a 

general retention or cession of lands underlying the marginal sea).” 43 

U.S.C. 1313(a). With respect to the National Petroleum Reserve--Alaska, the 

Alaska Statehood Act provided that the federal government has “power of 

exclusive legislation . . . as provided by [the Enclave Clause of the 

Constitution, Art. I, Sec. 8, cl. 17] . . . over such tracts or parcels of land as, 

immediately prior to the admission of said state, are owned by the United 

States and held for military . . . purposes, including naval petroleum reserve 

numbered 4 [the National Petroleum Reserve].” Id. at 41, quoting from 

Section 11(b) of the Alaska Statehood Act, 72 Stat. 347. 

58. The Court had previously noted that the Submerged Lands Act also confirmed state ownership of 

inland submerged lands and stated that “there is no indication that, in formulating the ‘expressly retained’ 

standard, Congress intended to upset settled doctrine . . . .” Id. at 35. 
38 Shore and Sea Boundaries 

Having already determined that the “expressly retained” exemption 

triggered the same burden of proof applicable to inland waters, the Court 

turned to its test from Utah Division of State Lands v. United States, 482 U.S. 

193 (1987). There it had announced that to defeat state title the United 

States would have to show that it intended to include submerged lands 

within the federal reservation and that it intended to defeat eventual state 

entitlement to those submerged lands. 

The coastal boundary of the Petroleum Reserve provides a starting point 

for any analysis. That boundary is described as “the ocean side of the 

sandspits and islands forming the barrier reefs and extending across small 

lagoons.” Executive Order 3797-A, February 27, 1923. (Figure 3) Clearly 

the boundary was intended to enclose submerged lands. Nevertheless, two 

prior Supreme Court decisions had established that submerged lands might 

fall within the boundary yet not be intended as part of the Reserve or to 

remain in federal ownership at statehood. Utah Division of State Lands, 

supra; and Montana v. United States, 450 U.S. 544 (1981). The Court looked 

carefully at the purposes of the Reservation to determine the original intent. 

It noted that “the Executive Order sought to retain federal ownership of land 

containing oil deposits. The Order recited that ‘there are large seepages of 

petroleum along the Arctic Coast of Alaska and conditions favorable to the 

occurrence of valuable petroleum fields on the Arctic Coast,’ and described 

the goal of securing a supply of oil for the Navy as ‘at all times a matter of 

national concern.’ Petroleum resources exist in subsurface formations 

necessarily extending beneath submerged lands and uplands.” It then 

concluded that “the purpose of reserving in federal ownership all oil and gas 

deposits within the Reserve’s boundaries would have been undermined if 

those deposits underlying lagoons and other tidally influenced waters had 

been excluded. It is simply not plausible that the United States sought to 

reserve only the upland portions of the area.” 521 U.S. at 39-40. The Court 

went on to hold that “defeating state title to submerged lands was necessary 

to achieve the United States’ objective – securing a supply of oil and gas that 

would necessarily exist beneath uplands and submerged lands. The transfer 

of submerged lands at statehood – and the loss of ownership rights to the 

oil deposits beneath those lands, would have thwarted that purpose.” Id. at 

42-43.59 The Court found that the federal government had retained 

ownership of submerged lands within the Petroleum Reserve at Alaskan 

statehood. Id. at 45. 

59. The Court’s approach was consistent with that taken in the Utah Lake and Montana cases. In those 

instances it had looked to purpose and concluded that submerged lands did not need to be reserved, or state 

title defeated, to accomplish the federal purpose. “Purpose” played a critical role in a much earlier case in 

which the Court concluded that an area set aside for Alaska natives must have been intended to include waters 

because of their reliance on fishery resources – despite the fact that the boundary description did not clearly 

extend offshore. Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918). 

Part One 39 
40 Shore and Sea Boundaries 

The second Arctic reserve arose under a different provision of the Alaska 

Statehood Act and presented an additional issue for the Court. Section 6(e) 

of the Act generally transferred to the new state real property used for the 

protection of wildlife but did not include “lands withdrawn or otherwise set 

apart as refuges or reservations.” 72 Stat. 341. In 1957 the Department of 

the Interior’s Bureau of Sport Fisheries and Wildlife “applied” to the 

secretary of the interior to have 8.9 million acres in the northeastern corner 

of Alaska established as an “Arctic Wildlife Range.” (Figure 4) The secretary 

delayed acting on the application while he sought legislation to govern 

mining in the new reserve. In the meantime Alaska became a state. Only 

thereafter did the secretary act on the application.60 

Figure 4. The coastline of the Arctic National Wildlife Refuge, Alaska. 

(After Report of Special Master J. Keith Mann, Figure 1.1) 

60. Alaska was admitted to the Union in January of 1959. On December 6, 1960, the secretary issued 

Public Land Order 2214, reserving the area as the Arctic National Wildlife Range. 25 Fed. Reg. 12598. The 

Range was expanded, by Congress, in 1980 to twice its original size and renamed the Arctic National Wildlife 

Refuge. 94 Stat. 2390. 

Part One 41 

Thus the first legal question before the special master was whether, given 

the hiatus, the area had been “withdrawn or otherwise set apart” as a refuge 

or reservation at the time of statehood. The United States relied upon 

Interior Department regulations in existence when the application was filed 

and the Statehood Act passed. They provided that the application alone 

would “temporarily segregate such lands from settlement, location, sale, 

selection, entry, lease, and other forms of disposal under the public land 

laws, including the mining and mineral leasing laws, to the extent that the 

withdrawal or reservation applied for, if effected, would prevent such forms 

of disposal.” 43 CFR Sec. 295.11(a)(Supp. 1958). This, in the federal view, 

“set apart” the area as that term was used in the Statehood Act. 

The master disagreed. Although he agreed with the United States that it 

both intended to include submerged lands within the reserve and further 

intended to defeat Alaskan title to them at statehood, he concluded that the 

federal government nevertheless had not “set aside” the area in time. In 

reaching that conclusion the master focused on the term “set aside as 

refuges.” He acknowledged that the application and Interior Department 

regulations did “set aside” the area, but it clearly had not become a “refuge” 

until after statehood. 

The United States took exception to that conclusion and it was 

reconsidered by the full Court. The Supreme Court agreed with its master 

that the United States had intended to include submerged lands in the 

proposed reserve, as evidenced by the boundary description (which 

included tidelands) and the explicit purpose to protect maritime species 

(including seals and whales). 521 U.S. at 51-53. It then reviewed the 

requirement of Section 6(e) of the Statehood Act and disagreed with its 

master, saying that “under the Master’s interpretation, Sec. 6(e) applies only 

to completed reservations of land. But Congress did not limit Sec. 6(e) to 

completed reservations. Rather, Congress provided that the United States 

would not transfer to Alaska lands ‘withdrawn or otherwise set apart as 

refuges’ for the protection of wildlife. (Emphasis added.) The Master’s 

reading of Sec. 6(e) would render the broader terminology superfluous.” Id. 

at 59. The Court had already recounted the secretary’s understanding that 

these lands would be reserved in the federal government, and his 

communication of that position to Congress. From this the Court found a 

clear congressional intent to defeat state title to lands described in the 

application. Id. at 57. 

Thus, the necessary intent to include submerged lands in the reservation 

was found in the application itself, derived from a boundary description 

and the stated purpose of the reservation. The intent to defeat eventual state 

title was supported by subsequent legislation, the Alaska Statehood Act. 

Jurisdiction and ownership of submerged lands within boundaries of the 

Arctic National Wildlife Refuge remained with the United States. 
42 Shore and Sea Boundaries 

To summarize, submerged lands beneath the marginal sea did not pass 

to the states in certain limited circumstances. Five exceptions are set out in 

Section 5 of the Submerged Lands Act. 43 U.S.C. 1313(a). Only two 

tidelands cases have dealt with these exceptions but numerous other 

examples have yet to be litigated. It is important to keep in mind that 

although these exceptions help define the respective rights of the states and 

federal government in the marginal sea they have no consequence on either 

the states’ seaward boundaries, our international boundaries, or the 

baseline from which they are measured.61 

DETERMINING THE SEAWARD LIMIT OF STATE JURISDICTION 

In 1953 Congress reversed the effect of the 1947 Supreme Court 

decision in United States v. California through the Submerged Lands Act. 

With the minor exceptions previously discussed it granted each coastal state 

all rights to mineral resources within 3 nautical miles of its “coast line.” 

Forty-five years of tidelands litigation followed. At least 11 Supreme Court 

Original actions, involving untold billions of dollars in mineral revenues, 

have sought to define that “coast line.” In this section we discuss the 

decisions that have slowly produced the principles for coast line 

delimitation. However, for a thorough understanding we must revisit a 

pre--Submerged Lands Act decision that set the stage for all that came later. 

United States v. California 

In 1947 the Supreme Court announced that the federal government, 

and not the states, held “paramount” rights to mineral resources beneath 

the marginal sea. United States v. California, 332 U.S. 19 (1947).62 However, 

that holding did not resolve all problems between the parties. It was now 

established that the states held submerged lands landward of the “coast 

line” (those beneath inland waters), pursuant to Martin v. Waddell, 41 U.S. 

(16 Pet.) 367 (1842) and Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845), and 

the federal government had jurisdiction seaward, under the California 

decision. The parties agreed that inland waters were those landward of the 

“low-water line” and the seaward limit of “inland waters.” They could not 

agree on the definition of either of those terms. Thus, more was needed to 

61. For example, the coastal boundaries of the Arctic National Wildlife Refuge and National Petroleum 

Reserve--Alaska do not follow the coast line as described in the international Convention on the Territorial Sea 

and the Contiguous Zone and adopted by the Supreme Court for Submerged Lands Act purposes. 

62. Under the Court’s early practice of renumbering Original actions with new Terms of the Court United 

States v. California has been referred to as Numbers 12, 11, 6, and ultimately 5 Original. The Court no longer 

changes the numbers of these cases and we will refer to the California case as Number 5, its present designation. 

Part One 43 

accurately define the boundary between federal and state interests in the 

valuable mineral lands off the California coast, many of which had already 

been leased. 

Shortly after the 1947 decision the federal government asked the Court 

for a supplemental decree establishing rights in three areas in which there 

was ongoing oil and gas drilling. A special master was appointed.63 After a 

series of procedural flurries that involved further directions from the Court, 

the master considered the problem of defining the low-water line and 

determining the extent of specific waters claimed by the state as inland.64 

First came the problem of defining the low-water line. Most of the 

Pacific coast of the United States has a type of tide known as “mixed.” That 

is, the tide is characterized by a conspicuous diurnal inequality in the higher 

high and lower high waters and/or the higher low and lower low waters each 

tidal day.65 The United States noted that the Court had already defined 

“ordinary high tide” to be an average of the two daily high tides on the 

Pacific coast. Borax, Ltd. v. Los Angeles, 296 U.S. 10 (1935),66 and argued that 

“ordinary low tide” should be the average of daily lows. (Figure 5) 

California pointed out that official government charts depicted a mean of 

just the lower-low tides as the low-water line and that should be adopted for 

these purposes. In his Report to the Court of October 19, 1952, the master 

recommended the federal position.67 

The more difficult questions involved the delimitation of inland waters. 

The Court had directed the master to “consider seven specified segments of 

the California coast to determine the . . . outer limit of inland waters.” 

63. The original appointee, retired Circuit Judge D. Lawrence Groner, withdrew within a year and was 

replaced by William H. Davis. 

64. It is interesting to see how this first special master proceeding in a tidelands case differs from later 

practice. It would appear that there was significant interaction between the master’s proceeding and the Court 

between 1948 and 1951, especially in specifically framing the issues to be litigated. In more recent practice 

special masters have gone forward quite independently once appointed. 

65. The Atlantic, by contrast, is mostly characterized by semidiurnal tides, in which the two high waters 

of each tidal day are approximately equal in height. The Gulf coast is mostly characterized by diurnal tides, in 

which there is generally only one high water and one low water in each tidal day. 

66. This average is calculated over a complete, 18.6-year node cycle required for the regression of the 

moon’s nodes to complete a circuit of 360 degrees of longitude. The specific 19-year period adopted by the 

National Ocean Service as the official time segment over which observations are taken and reduced to mean 

values for tidal datums is known as the “tidal epoch.” Periodic and apparent secular trends in sea levels make 

tidal epochs necessary for standardization. The National Tidal Datum Epoch of 1960 through 1978 is currently 

in use. Epochs are considered for revision every 25 years. 

67. United States v. California, Number 6 Original, Report of the Special Master of October 14, 1952. See: 

Reed, Koester and Briscoe, supra, at 65. A second low-water issue arose in the litigation, that being whether 

effect was to be given to shoreline changes induced by artificial structures, such as groins and jetties. Federal 

law would treat such changes as extending the coast line, as do natural changes. But under California law 

artificially created accretion is disregarded for coastal boundary purposes. Probably because the federal rule 

would push its boundaries seaward California agreed that the federal rule should be followed and the master 

adopted that position. 
44 Shore and Sea Boundaries 

Figure 5. Shoreline cross section, comparing the low and lower low-water tidal 

datums. The mean lower low-water line is depicted on offical U.S. charts and 

was adopted by the Supreme Court as the “ordinary” low tide line. 

United States v. California, 381 U.S. 139, 143 (1965).68 In addition, the state 

claimed as inland all waters landward of the Channel Islands, which it 

called the “overall unit area.”69 (Figure 6) 

California argued that it had traditionally treated each of the claimed 

water bodies as falling within its jurisdiction. The United States contended 

that inland water status should be determined by principles employed in its 

international relations at the time of the 1947 decree. The master followed 

the latter course. He concluded that the United States did not claim, nor 

recognize, bays of more than 10 miles width and did not claim as inland 

channels such as those between California’s offshore islands and the 

mainland.70 

68. The individual segments included: the coast from Point Conception to Point Hueneme; San Pedro 

Bay; the coast from the southern extremity of San Pedro Bay to the western headland at Newport Bay; Crescent 

City Bay; Monterey Bay; San Luis Obispo Bay; and Santa Monica Bay. 

69. The proposed boundary ran from Point Conception 21 miles to Richardson Rock, to San Miguel 

Island, to Santa Rosa Island, to Gull Island then 35.5 miles to Begg Rock, to San Nicolas Island, 43 miles to San 

Clemente Island, and 56.8 miles back to the mainland at Point Loma. 381 U.S. 143, 139, n.4 

70. During the special master proceedings the International Court of Justice announced its decision in the 

Anglo-Norwegian Fisheries Case (United Kingdom v. Norway) [1951] I.C.J. Rep. 116, in which it concluded that 

Norway did not violate international law by employing straight baselines in circumstances similar to the 

California coast. The master found, however, that the ICJ opinion did not require a coastal nation to adopt 

such a system and the United States had chosen not to do so. Report at 29. 

Part One 45 

Figure 6. California's "Overall Unit Area" inland water claim. (From I 

Shalowitz, Figure 13) 

The Report was submitted to the Court in 1952 and both parties filed 

exceptions to the master’s recommendations. However, before anything 

further occurred the Submerged Lands Act became law. Through 

congressional largess California acquired mineral rights within 3 miles of its 

coast. It happens that the bed of the Pacific falls away quickly off the 

California coast and offshore technology limited oil and gas activities to the 

nearshore area in the early 1950s. Petroleum production at that time was 

so close to shore that it all fell within the zone granted to California under 

anyone’s definition of “coast line.” For that reason the Master’s Report and 

the parties’ exceptions lay dormant in the Court for 10 years. 

By 1963 however, oil and gas exploration had moved far enough 

seaward that the precise limits of the 3-mile grant became important. The 

United States filed an amended complaint asking that issues be reframed in 

light of the Submerged Lands Act but that the case proceed on the basis of 

Special Master Davis’s Report. California opposed, saying that so much was 

changed by the Act that the case should start anew. The Court accepted the 
46 Shore and Sea Boundaries 

federal Complaint, directed an Answer from California, and permitted the 

parties to file new exceptions.71 

In the renewed proceeding the United States took the position that, for 

most purposes, the special master’s coast line could be used for projecting 

the state’s new 3-mile grant. The state contended that Congress had not 

adopted the federal international position as its definition of inland waters 

but intended to include all waters “which the States historically considered 

to be inland.” United States v. California, 381 U.S. at 149. 

Without the aid of a special master the Court undertook its first 

consideration of tidelands issues under the Submerged Lands Act. It 

produced a decision that has served as the foundation for 33 years of 

litigation to resolve more discrete coast line questions raised by the Act. 

First the Court rejected both parties’ contentions as to the law to be 

applied. The federal government argued that its international position at 

the time of Submerged Lands Act passage (1953) must be taken as the 

congressionally intended coast line. California urged an open-ended 

definition of “coast line,” subject to future legal changes, much as low-water 

lines will change with accretion and erosion, Swarth, supra, at 147, what the 

Court described as “a coast line dependent upon each State’s subjective 

concept of its inland waters.” 381 U.S. at 159-160. But the Court liked 

neither. It found that Congress had had no clear intention as to the 

definition of “coast line” but “made plain its intent to leave the meaning of 

the term to be elaborated by the courts, independently of the Submerged 

Lands Act.” 381 U.S. at 151-160. 

The Supreme Court looked to the recently ratified international 

Convention on the Territorial Sea and the Contiguous Zone.72 In that treaty 

the international community had, for the first time, attempted to codify 

principles for coast line delimitation. 

In response to the federal argument that Congress could not have 

intended definitions that didn’t exist when the Submerged Lands Act was 

enacted, the Court said “we do not think that the Submerged Lands Act has 

so restricted us. Congress, in passing the Act, left the responsibility for 

defining inland waters to this Court . . . . Had Congress wished us simply 

to rubber-stamp the statements of the State Department as to its policy in 

1953, it could readily have done so itself.” 381 U.S. at 164-165. 

As to the state’s argument that the definition of “coast line” should 

change to accommodate future changes in international law, the Court 

explained that “before today’s decision no one could say with assurance 

71. Swarth, “Offshore Submerged Lands, An Historical Synopsis,” Land and Natural Resources Division 

Journal, U.S. Department of Justice, Vol. 6, No. 3, April 1968 at 146. 

72. 15 U.S.T. (Pt. 2) 1606. Ratified March 24, 1961, and entered into force September 10, 1964. 

Part One 47 

where lay the line of inland waters as contemplated by the Act . . . . After 

today that situation will have changed. Expectations will be established and 

reliance placed on the line we define. Allowing future shifts of international 

understanding respecting inland waters to alter the extent of the Submerged 

Lands Act grant would substantially undercut the definiteness of 

expectation which should attend it.” It went on to say that “‘freezing’ the 

meaning of ‘inland waters’ in terms of the Convention definition largely 

avoids this, and also serves to fulfill the requirements of definiteness and 

stability which should attend a congressional grant of property rights . . . .” 

381 U.S. at 166-167.73 

The Court concluded that the Convention provides the “best and most 

workable definitions” of inland waters available, not only to resolve the 

issues before it but “to many of the lesser problems related to coastlines 

that, absent the Convention, would be most troublesome.” Id. at 165. And 

so it has been. From that day forward the states and the federal government 

have approached their maritime boundary controversies with the 

Convention as a guide. Although the problems have been legion, the 

Convention provides a framework for the resolution that could not have 

been found elsewhere. 

In the same decision the Court dealt with what it called the “subsidiary 

issues” in the case before it, each of which has also played a significant role 

in subsequent litigation. 

The first was California’s argument that Article 4 of the Convention 

permits the state to use “straight baselines” to enclose the waters landward 

of its offshore islands. The Court recognized that Article 4 “permitted” the 

use of such baselines but that the federal government, and not the states, 

gets to decide whether they will be used. “An extension of state sovereignty 

to an international area by claiming it as inland water would necessarily 

also extend national sovereignty, and unless the Federal Government’s 

responsibility for questions of external sovereignty is hollow, it must have 

the power to prevent States from so enlarging themselves.” Id. at 168. 

At the same time it left the door ajar, saying that if such areas had been 

previously claimed “a contraction of a State’s territory in the name of 

foreign policy would be highly questionable.” Id. That comment has been 

treated as an invitation by at least six other states that have since made 

straight baseline claims. None has been successful. 

73. At the same time the Court made the interesting observation that the adoption of California’s position 

“might unduly inhibit the United States in the conduct of its foreign relations by making its ownership of 

submerged lands vis-a-vis the States continually dependent upon the position it takes with foreign nations.” 

381 U.S. 166-167. Some states have subsequently argued that federal offshore mineral interests have influenced 

its maritime boundary policy – especially its continuing decision not to adopt straight baselines as authorized 

by Article 4 of the Convention. The Supreme Court’s language in the 1965 California decision makes clear that 

the subsequent adoption of straight baselines would not expand the states’ grant. Thus our international policy 

did not need to be tailored to protect domestic interests. 
48 Shore and Sea Boundaries 

The Court next dealt with California’s individual bay claims and, 

applying the 24-mile rule and semicircle test of Article 7 of the Convention, 

concluded that Monterey Bay qualifies as a bay. Id. at 170. In that context 

it revisited the state’s claim to the Santa Barbara Channel, this time 

denominated a “fictitious bay” and concluded (again) that it is not inland 

water. Id. at 170- 172.74 The Court concluded that “in these circumstances, 

as with the construction of straight baselines, we hold that if the United 

States does not choose to employ the concept of a ‘fictitious bay’ in order to 

extend our international boundaries around the islands framing Santa 

Barbara Channel, it cannot be forced to do so by California.” Id. 

California also claimed a right to offshore waters through historic title, 

that is, assertions of dominion with the acquiescence of foreign states. 

Although the Convention does not deal with historic waters, other than to 

recognize that they exist and are not limited by its provisions,75 other 

United Nations documents provide the criteria for their recognition. 

Although California provided some evidence that it had claimed areas more 

than 3 miles offshore, the Court found none of the areas to qualify. 

In so doing, it again set the ground rules for future historic waters claims 

by the states. In particular it discussed the significance of a federal 

disclaimer in opposition to a state historic waters claim and the burden of 

proving such a claim in the face of a disclaimer. Id. at 175. 

The parties also disagreed on the limits of inland water near harbors. 

The Court concluded that harbors, those areas enclosed by permanent 

harborworks, are inland but “roadsteads,” areas seaward of the harbor that 

are used for anchoring, loading, and unloading, are part of the territorial 

sea, and not inland waters. Id. at 175, citing Article 9 of the Convention. 

Next the Court turned to the parties’ disagreement over the definition of 

“ordinary low water.” The special master, it will be remembered, 

recommended acceptance of the federal position that on a coast of mixed 

tides the two daily low tides should be averaged to compute ordinary low 

water, as the two high tides are averaged to get ordinary high water. But the 

Court disagreed, adopting the state’s position that only the lowest tide of 

each day is to go into the average. Looking again to the Convention, Article 

3 of which provides that “the normal baseline for measuring the breadth of 

the territorial sea is the low-water line along the coast as marked on largescale charts officially recognized by the coastal State,” the Court pointed out 

that our official charts are published by the United States Coast and 

74. The term “fictitious bay” had been used in some pre-Convention practice to describe straits, formed 

by islands, which led to inland waters. Such “fictitious” bays play no role under the Convention where Article 

4 straight baselines may be used to enclose such areas if the coastal sovereign so elects. 

75. Article 7(6) states that “The foregoing provisions [regarding juridical bays] shall not apply to so-called 

‘historic’ bays . . . .” 

Part One 49 

Geodetic Survey (now the National Oceanic and Atmospheric 

Administration), that depicts the lower low-water line on its products.76 

This conclusion has been universally accepted and has not led to further 

litigation.77 

Finally, the United States had argued before the special masters, and 

continued before the Court, that California’s jurisdiction could not be 

extended by artificial extension of the coast line. Prior to the Submerged 

Lands Act the affected areas were those enclosed or reclaimed by an artificial 

structure, or built up because of it. After the Act the question was whether 

the 3-mile grant was to be measured from artificial structures. Neither the 

master nor the Court adopted the federal contention. The Court ruled that 

just as artificial changes are recognized in international law to affect the 

coast line, so too would they under the Submerged Lands Act. Id. at 176. In 

response to the federal government’s argument that this produced an 

inequitable result, the Court reminded the government that “the United 

States, through its control over navigable waters, had power to protect its 

interests from encroachment by unwarranted artificial structures, and that 

the effect of any future changes could thus be the subject of agreement 

between the parties.” Id. at 176. 

The Court was referring, of course, to the federal government’s control 

over the construction of structures in the navigable waters and the fact that 

only something in the navigable waters could affect the outer limit of the 

states’ Submerged Lands Act grants. The United States Army Corps of 

Engineers, which permits such structures, has since revised its regulations to 

provide that any application for a permit to construct that would affect 

federal rights on the outer continental shelf, will be reviewed by the 

secretary of the interior and the attorney general before issuance.78 In most 

circumstances the state will be asked to waive any enlargement of its 

Submerged Lands Act rights, which would otherwise result from the 

proposed structure, as a condition of the permit.79 

76. The resolution seems not only well founded in law but makes practical sense. The difference between 

mean low water and mean lower low water will be not much more than theoretical on all but the most gently 

sloping coastlines with significant tidal ranges. The advantages of using a line already charted by the agency 

which the Court has regularly recognized as being the authority in this field would seem to far outweigh any 

minor loss in real estate. 

77. That is not to say that the charted line is always accepted as the actual low-water line. Constant 

accretion and erosion make it impossible to maintain charts to the accuracy of their original surveys. For that 

reason the parties to tidelands litigation have been free to prove that facts have changed since a chart was issued. 

But it is always the chart datum employed by the National Ocean Service for its charts of the area in question 

which will constitute the low-water line for Convention and Submerged Lands Act purposes. 

78. That policy has been the subject of tidelands litigation at least twice since. See discussions of United 

States v. Alaska, No. 84 Original and United States v. Alaska, No. 118 Original below. 

79. Some states have characterized this as “extortion” but that conclusion is difficult to understand since 

the consequence is merely leaving the state where it stood prior to construction, neither gaining nor losing 

submerged lands. 
50 Shore and Sea Boundaries 

Thus the Court set the parameters for delimiting Submerged Lands Act 

grants around our coasts. United States v. California continues to be cited in 

most tidelands decisions.80 A decree was entered which implements the 

1965 decision at 382 U.S. 448 (1966). 

The parties have since gone back to the Court to resolve additional 

issues regarding California’s coast line. The principles established in 1965 

enabled the parties to agree on the limits of inland waters in four water 

bodies whose mouths are formed by artificial jetties. These include 

Humboldt Bay, Port Hueneme, the Santa Anna River, and Agua Hedionda 

Lagoon, where inland waters are enclosed by “straight lines between the 

mean low-water lines at the seaward ends of the jetties.” United States v. 

California, 432 U.S. 40 (1977). Agreement was also reached on closing lines 

for San Francisco Bay and Bodega-Tomales Bay. Id. at 41. Finally, 16 groins 

and breakwaters, scattered along the California coast, were acknowledged to 

be harborworks and part of the coast line for Submerged Lands Act 

purposes. Id. at 41-42. 

The governments could not agree on three other issues, including the 

location of inland water limits in San Diego Bay and the Port of San Pedro 

and whether the state’s Submerged Lands Act grant should be measured 

from 15 piers along the California coast. 

Again a special master was appointed, the Honorable Alfred A. Arraj, 

United States District Court judge from Denver, Colorado. He conducted 

extensive hearings in New York and Denver and heard distinguished 

witnesses from both sides.81 

The Supreme Court had already ruled that San Pedro Harbor (the port 

for Los Angeles) is inland water to the artificial breakwaters on the south. 

United States v. California, 382 U.S. 448, 449 (1966). The Court had not, 

however, decided where its mouth lay on the east, from the southern 

breakwater to the mainland. The parties could not agree on a line and the 

issue was put before the master, where they took decidedly different 

approaches to its resolution. 

The United States went about the task just as it would have in locating 

the mouth of a juridical bay. It asked “what line divides waters which are 

landlocked from those which are open sea?” Given the Court’s earlier 

pronouncement, it was assumed that the eastern end of the offshore 

breakwater was one headland. From there it applied a number of tests to 

80. For a more thorough discussion of the California case see, 1 Shalowitz, Shore and Sea Boundaries 3-22, 

44-66 and 105-108 (1962). 

81. Included among them were Judge Philip C. Jessup, former Judge on the International Court of Justice 

and author of the classic The Law of Territorial Waters and Maritime Jurisdiction, 1927, and Mr. Elihu Lauterpacht, 

Queen’s Counsel, whom the master referred to as a “distinguished professor and practitioner of international 

law.” Both testified on the role of piers in maritime boundary delimitation. 

Part One 51 

locate the opposite headland on the mainland. The only seemingly 

appropriate method for headland selection, given the geography, was the 

“shortest distance test.” That process led to choosing the tip of the east 

Alamitos Bay jetty as the port’s eastern entrance point. (Figure 7) 

California used a different approach, based on the use of the water area 

in the vicinity. It emphasized that the federal line cut off waters that in fact 

were part of the San Pedro harbor system. The special master adopted the 

state’s approach and concluded that the admitted inland waters and the 

additional area enclosed by California’s proposed line constitute one 

unified harbor system. United States v. California, Report of the Special 

Master of August 20, 1979, at 9. The state’s line ran from the offshore 

breakwater to the tip of the eastern jetty of Anaheim Bay. The master 

recommended that line; the United States did not take exception to the 

Supreme Court; and it was adopted in a Fourth Supplemental Decree, 449 

U.S. 408 (1981).82 

Figure 7. Port of San Pedro, California. Note the differing state and 

federal contentions as to the limits of inland waters. 

The state also prevailed on the San Diego Bay closing line. That bay is 

formed by a peninsula known as Coronado (sometimes referred to as an 

island by locals) that parallels the mainland coast. The western headland to 

the bay is a massive, natural promontory called Point Loma. It was 

acknowledged by both parties to provide a proper headland. On the east, 

82. The Court’s Third Supplemental Decree in the California case implemented its decision on the 

Channel Islands National Monument issue discussed above. 
52 Shore and Sea Boundaries 

however, the entrance to San Diego Bay is less obvious. Point Loma extends 

well seaward of the natural terminus of Coronado. However, running south 

from that terminus, and parallel to Point Loma, is a man-made feature, the 

Zuniga Jetty. (Figure 8) Vessel traffic entering or leaving the bay navigates 

the channel between these two features. 

Figure 8. Headlands of San Diego Bay. Point Loma and the Zuniga Jetty 

constitute the headlands of San Diego Bay. 

The United States had agreed that the seaward tips of a number of other 

California jetties form the entrance points to inland waters. They had been 

recognized in the Court’s Second Supplemental Decree. 432 U.S. 40 

(1977). However, the Zuniga Jetty is different. Each of the previously 

recognized jetties extends above water from the mainland to its seaward tip. 

The Zuniga Jetty does not. It runs some distance from Coronado above 

water then slumps below and occasionally reappears. Its seawardmost 

point, which happens to be above water, had been acknowledged as part of 

a continuing harborwork and therefore part of the coast for Submerged 

Lands Act purposes. But the United States contended that a subsurface 

feature could not be said to create “landlocked waters” and could not, 

therefore, be considered a bay headland. The federal government proposed 

Part One 53 

a closing line from the seawardmost point on that portion of the jetty that 

is continuously above water across the channel to Point Loma. 

The state disagreed. It contended that a much larger extent of the jetty 

lay above tidal datum than was alleged by the United States. What is more, 

it said, the submerged portions were so near the surface that they could not 

be safely navigated. It produced evidence of damages to vessels that had 

tried. 

The master again agreed with the state, finding that less than one-fifth 

of the jetty was submerged and that the United States acknowledged that the 

seaward tip of the jetty is a proper base point. He also seemed to rely upon 

his finding that even submerged portions of the jetty were not navigable, 

denying the federal government’s contrary allegation “regardless of the 

definition of navigable waters which one chooses to adopt.” Report at 17-

18.83 In any case, only 12 acres of submerged lands were at stake and the 

United States did not take exception to the recommendation. It too was 

adopted in the Court’s subsequent decree. 449 U.S. 408 (1981). 

There remained the question of piers. California, like other coastal 

states, has a number of piers that extend seaward from the shore. (Figure 9) 

Fifteen of these piers are of sufficient length that if treated as part of the 

coast line they would extend the territorial sea and California’s Submerged 

Lands Act grant.84 The piers are built on pilings; have asphalt, wood, or 

concrete decks; and permit the free flow of water beneath. Four are privately 

owned and the remainder are operated by the state’s Department of Parks 

and Recreation. A sixteenth structure was also involved. It connects Rincon 

Island to the mainland. The “island” is a wholly man-made structure built 

to support petroleum production. As an artificial island it is clearly not part 

of the coast line but the state argued that its connecting causeway, which is 

comparable to the piers in all respects, should be included.85 

Certain artificial structures are understood to form part of the coast line 

for international and Submerged Lands Act purposes. Article 8 of the 

Convention on the Territorial Sea and the Contiguous Zone provides that 

“for purposes 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.” The Supreme Court had already 

83. This comment by the master is curious since the Supreme Court has always defined navigable waters 

of the United States to include all tidally influenced waters. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 

(1988). Any water flowing across the Zuniga Jetty is clearly tidally influenced. 

84. The piers vary in length from 500 feet, at the Santa Barbara Biltmore Hotel, to 3,500 feet at Ocean 

Beach, California. Three-mile arcs drawn from them would have expanded the state’s maritime jurisdiction by 

approximately 3000 acres. 

85. Article 10(1) provides that “an island is a naturally formed area of land” [emphasis added]. The history 

of the Convention makes clear that offshore oil structures were not to be base points for territorial sea 

delimitation. 
54 Shore and Sea Boundaries 

Figure 9. Ocean Beach Pier, San Diego, California. This pier is typical of 

those along California's coast. (Photo by Donna M. Reed) 

ruled that certain coast protective works, not closely associated with a 

harbor, are included in the definition. United States v. Louisiana, 394 U.S. 11, 

49-50 n.64 (1969). And, the federal government had conceded that specific 

jetties and groins along the California shore would be treated as part of the 

legal coast line. United States v. California, 432 U.S. 40 (1977). In addition, 

Article 3 of the Convention provides that “except where otherwise provided 

in these articles, the normal 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 [nation] State.” 

Neither the Convention nor the Submerged Lands Act specifically 

included or excluded these piers as proper coastal points. California 

pointed out that groins and jetties had already been excepted as 

harborworks and that along its coast, barren of many natural harbors, the 

piers serve as ports. That being so, the state contended, examples of 

“harborworks” should be extended to include open-pile piers. 

Part One 55 

The federal government felt that open-pile piers should be distinguished 

from previously accepted structures. To begin, it challenged California’s 

contentions that these piers performed a “harborlike” function. Most are 

used more for fishing and promenading than by vessels. But more 

important, the government felt, is the fact that unlike previously accepted 

structures they have no continuous low-water line or coast protective 

function.86 Experts for both sides agreed that the piers were intentionally 

constructed to avoid effects on the coastline. 

The special master found no basis in the Convention or its history for 

resolving the question before him. He concluded that “when all is said and 

done it seems clear that the drafters of the Geneva Convention and the 

commentators simply did not think of or consider the question of artificial 

piers erected on the open coast and not directly connected with any 

conventional harbor.” Report of August 20, 1979, at 150. 

In the absence of drafter’s intent, he found useful an approach 

commended by McDougal and Burke in their extensive study The Public 

Order of the Oceans (1962). They suggested that “when the construction of 

an area of land serves consequential purposes, it would seem to be in the 

common interest to permit the object to be used for delimitation purposes 

. . . . The principal policy issue in determining whether any effect for 

delimitation purposes ought to be attributed to other formations and 

structures is whether they create in the coastal state any particular interest in 

the surrounding waters that would otherwise not exist, requiring that the 

total area of territorial sea be increased . . . .” McDougal and Burke at 387-

388. The master concluded that previously accepted structures create such 

an interest, Report at 28-29, but the piers at issue here do not. Report at 29. 

He recommended in favor of the federal government, that the piers not be 

considered part of the coast line for Submerged Lands Act purposes. Id. 

California took exception to that recommendation. Although the 

Supreme Court overruled that exception, holding for the United States, it 

followed a more conventional course to its conclusion than had the master. 

First, it recognized that California’s claim might be based on either 

Article 3 or Article 8 of the Convention. With respect to the former, it seems 

to have adopted the federal position that a feature must have a low-water 

line to qualify. As it stated, “open piers, such as those at issue here, are 

elevated above the surface of the ocean on pilings. Accordingly, they do not 

conform to the general rule for establishing a baseline from which to 

measure the extent of a coastal state’s jurisdiction. That rule, contained in 

Art. 3 of the Convention, states: ‘the normal baseline for measuring the 

86. The Supreme Court pointed to other of its decisions in which it discussed “the significance of factual 

distinctions and their attendant implications among jetties, groins, breakwaters, and spoil banks.” Citing Texas 

v. Louisiana, 426 U.S. 465, 469, and n.3 (1976); and United States v. Louisiana, 389 U.S. 155, 158 (1967). 
56 Shore and Sea Boundaries 

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.’ The type of 

construction of the piers does not, without more, require a determination 

adverse to California . . . . But the absence of a ‘lower low-water line’ 

deprives the piers of a ‘normal baseline’ and precludes them from falling 

within the ambit of Art. 3.” United States v. California, 447 U.S. 1, 6 (1980). 

The piers do not qualify as “coast line” under Article 3.87 

California also made two arguments from the official federal charts of 

its coastline. First it contended that the requirements of Article 3 have 

presumably been met because the circumference of each pier is depicted on 

official charts of the United States with a solid black line, as is the rest of the 

coastline, including groins and breakwaters. (Figure 10) Second, it pointed 

out that those same charts appeared to show a 3-mile line constructed from 

some of the piers. 

Dr. Robert Hodgson, geographer of the U.S. Department of State, 

explained to the master how the inaccurate 3-mile line might have resulted 

given the multicolored printing process used to publish the charts, climatic 

changes, or draftsmanship at the Coastline Committee.88 The master 

concluded that the charts are sometimes “erroneous and do not represent 

the position of the United States government.” Report at 25. He gave the 

discrepancies no weight. 

With respect to the “black line” that presumably represents the 

coastline, the Court stated that it “is likewise not dispositive.” 447 U.S. at 

6. But it appears to attribute that conclusion to its understanding that the 

charts “contain an aggregate of errors.” In fact, the issue here is not one of 

errors, but of recognizing that the chart contains many solid lines that do 

not represent the coastline.89 What is more, it is clear that Article 3 does not 

mean that the line on a chart is the low-water line; it means that the 

particular type of low-water line used by the coastal state in its charting will 

be its baseline.90 But, like its special master, the Court rejected California’s 

charting arguments. 

87. The Court indicated that the master had “implicitly” recognized this proposition, saying that “by 

considering and disposing of California’s claim under Art. 8 of the Convention, in effect an exception to the 

general rule embodied in Art. 3 . . . he necessarily found the criteria of Art. 3 were not satisfied.” Id. 

88. The Committee on Delimitation of the United States Coastline, sometimes referred to as the Baseline 

or Coastline Committee, is the interagency group which establishes the United States’ maritime boundaries for 

publication on these charts. 

89. For example, in addition to breakwaters, groins and jetties – wharfs, pontoons, land steps and stairs 

and floating docks are depicted with solid lines. As with piers, those lines indicate the outline of the feature, 

not a coast line. See: Chart No. 1, United States of America Nautical Chart Symbols Abbreviations and Terms, 

10th Ed. 1997 at 27. 

90. The question arises because a number of tidal datums might be described as “the low-water line.” 

Different countries employ different low-water datums in their charting. So as not to require any of them to 

scrap their traditional definitions and redraw their charts, the Convention recognizes various low-water datums 

as acceptable baselines. 

Part One 57 

Figure 10. Typical pier on NOAA charts. The label and arrow (added) point 

to a pier as depicted on a NOAA chart. (Based on NOAA Chart 18725) 

The Court then turned to the Article 8 contentions. It immediately 

explained that it never intended that all artificial coastal structures be 

treated as part of the coast. 447 U.S. at 7. It distinguished California’s piers 

from structures along Louisiana’s coast that were built “for protective 

purposes, or for enclosing sea areas adjacent to the coast to provide 

anchorage and shelter.” Id., quoting from United States v. Louisiana, 394 U.S. 

11, 37 n.42 (1969). The California piers, it said, “neither ‘protect,’ ‘enclose,’ 

nor ‘shelter;’ they do not constitute harborworks within the meaning of Art. 

8.” 447 U.S. at 7. “A ‘harbor’ under Art. 8 is a body of water providing a 

haven for safe anchorage and shelter for vessels. See Louisiana Boundary 

Case, supra, at 37 n.42, citing 1 Shalowitz, Shore and Sea Boundaries, 60 n.65 

(1962). That the piers and the Rincon Island complex provide no 

protection has been noted; that they are not bodies of water states the 

obvious. It follows that since the structures are neither harborworks nor 

harbors, they cannot constitute an integral part of a harbor system.” 447 

U.S. at 7-8. 

We now know that jetties, breakwaters, and groins will constitute part of 

the coast line while open-pile piers will not. With that we turn to the 

Supreme Court’s Louisiana decisions and their wide variety of coast line 

issues. 
58 Shore and Sea Boundaries 

United States v. Louisiana 

In 1960 the Supreme Court ruled that Louisiana was entitled, pursuant 

to the Submerged Lands Act, to lands and minerals within 3 nautical miles 

of its coast line. United States v. Louisiana, 363 U.S. 1 (1960). “Coast line” 

was, of course, defined only as the ordinary low-water line and the seaward 

limit of inland waters. Louisiana’s complex, and constantly migrating, 

shoreline produced an almost infinite variety of boundary questions. The 

parties could not agree on the delimitation of inland waters and were soon 

back before the Court to have their differences resolved. 

The Coast Guard Line 

Louisiana began by contending that the United States had already 

drawn the limits of inland waters and the state had accepted those lines. 

Louisiana was referring to a line drawn by the Coast Guard to separate areas 

in which vessels are required to use “inland” rules of the road from those in 

which international rules apply. The lines are drawn pursuant to an 1895 

statute that authorized the secretary of the treasury 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.” 28 Stat. 672. As is obvious from the statute, the “inland rules line” 

is a series of straight line segments connecting prominent features so that 

mariners can readily determine when the line is crossed. It is completely 

unrelated to any international principles of maritime boundary 

delimitation, either pre- or post-Territorial Sea Convention. 

Nevertheless, the state reasoned that “Congress must have contemplated 

that a technical term such as ‘inland waters’ should have the same meaning 

in different statutes.” Louisiana Boundary Case, 394 U.S. 11 at 19 (1969). 

Acknowledging that the Court had already ruled that the Submerged Lands 

Act’s “coast line” would be defined by principles of the Convention on the 

Territorial Sea, the state argued that nothing in the Act compelled the same 

definition of inland waters around our coast. Rather, it said, the Court 

could adopt “the definition which best solved the problems of that case.” 

Id. at 33. Given the mobility of the Louisiana coast, only the Coast Guard’s 

inland water line would provide the “definiteness and stability which 

should attend any congressional grant of property rights . . . .” Id. at 32. 

However, if the Convention were to be used (argued the state) all of the 

areas within the Coast Guard lines would qualify as historic inland water. 

In either case the “Inland Water Line” would be part of Louisiana’s “coast 

line” for Submerged Lands Act purposes. 

The Supreme Court disagreed. It first reviewed the legislative history of 

the Submerged Lands Act and concluded that Congress had considered the 

Part One 59 

Coast Guard line and determined that it was “of no value . . . whatsoever” 

in implementing the Act. Id. at 20, quoting from Hearings on S.J. Res. No. 

13 and other bills before the Senate Committee on Interior and Insular 

Affairs, 83rd Cong., 1st Sess., 276 (1953). 

The Court was no more convinced that it should, or could, adopt 

different definitions of “inland waters” for different parts of the coast. It 

noted that in the California case it had adopted the Convention’s principles 

“for purposes of the Submerged Lands Act, and not simply for the purpose 

of delineating the California coastline.” The Court explained that “Congress 

left to this Court the task of defining the term used in the Act, not of 

drawing state boundaries by whatever method might seem appropriate in a 

particular case. It would be an extraordinary principle of construction that 

would authorize or permit a court to give the same statute wholly different 

meanings in different cases . . . .” Id. at 34. “Moreover,” it went on to 

reason, “adoption of a new definition of inland waters in this case would 

create uncertainty and encourage controversy over the coastlines of other 

States, unsure as to which, if either, of the two definitions would be applied 

to them.” Id. at 34-35.91 

Finally, the Court ruled that the Coast Guard line had not created 

historic inland waters. Although Louisiana characterized that line as an 

“assertion of sovereignty,” the Court pointed out that at a minimum the 

assertion was not of an inland water claim. “Because it is an accepted 

regulation of the territorial sea itself, enforcement of navigation rules by the 

coastal nation could not constitute a claim to inland waters from whose 

seaward border the territorial sea is measured.” Id. at 25-26.92 

Probably even more persuasive was the fact that “for at least the last 25 

years, during which time Congress has twice reenacted both the 

International and Inland Rules, the responsible officials have consistently 

disclaimed any but navigational significance to the “Inland Water Line.” Id. 

at 27. The Coast Guard itself, in publishing its line for the Louisiana shore, 

declared that “these lines are not for the purpose of defining Federal or State 

boundaries . . . .” 18 Fed. Reg. 7893 (1953). 

The Court followed its precedent in California and declared that the 

Convention’s principles would govern inland water determinations and 

91. Those who have spent the subsequent 30 years litigating coast line cases with the other coastal states 

might think that the Court engaged in some wishful thinking if it expected the Louisiana case to resolve all 

controversies. The fact is, of course, that the Court was exactly correct in its point. Later cases would have been 

much more difficult than they were if this issue hadn’t been resolved in 1969. 

92. The Court pointed to the recent United Nations study on historic waters which concluded that “if the 

claimant State allowed the innocent passage of foreign ships through the waters claimed, it could not acquire 

an historic title to these waters as internal [inland] waters, only as territorial sea. [citation omitted] Under that 

test, since the United States has not claimed the right to exclude foreign vessels from within the ‘Inland Water 

Line,’ that line could at most enclose historic territorial waters.” Id. at 26 n.30. 
60 Shore and Sea Boundaries 

went on to hold that the Coast Guard’s “Inland Water Line” would not even 

support a historic inland waters claim.93 

The Convention Issues 

Louisiana did not rest its case on the Coast Guard line alone. It took the 

position that even if the Convention’s principles were to be applied, the 

United States was being much too conservative in its understanding of those 

principles. The Court looked at the differences between the parties; made 

dispositive rulings on some; and assigned the remainder to a special master 

for findings and recommendations. We turn now to the Court’s 

interpretations of the Convention. 

DREDGED CHANNELS. The first point of contention came over the 

breadth of the term “harborworks.” Article 8 of the Convention provides 

that “the outermost permanent harbour works which form an integral part 

of the harbour system shall be regarded as forming part of the coast.” The 

shallowness of the Gulf of Mexico requires that channels be dredged in the 

seabed to accommodate vessel traffic bound for inland harbors. In what 

seems a clever and entirely logical position, the state argued that these 

subsurface channels are “an integral part of the harbor system,” and are 

therefore “harborworks” and part of the coast. 

The federal government contended that Article 8 applies only to raised 

structures. The Court reviewed the history of the Convention and 

determined that its authors contemplated “structures” and “installations” 

that were part of the land and served to shelter nearby waters. Id. at 36-37. 

The Court pointed out that under the Convention harborworks are to be 

treated as “part of the coast” and that “as part of the ‘coast,’ the breadth of 

the territorial sea is measured from the harbor works’ low-water lines, 

attributes not possessed by dredged channels.” It concluded that “Article 8 

does not establish dredged channels as inland waters.” Id. at 38. 

LOW-TIDE ELEVATIONS. Article 11 of the Convention provides that 

“where a low-tide elevation is situated wholly or partly at a distance not 

exceeding the breadth of the territorial sea from the mainland or an island, 

the low-water line on the elevation may be used as the baseline for 

measuring the breadth of the territorial sea.” Otherwise, it serves no such 

function.94 

93. Louisiana actually made historic waters claims to all of its coastline. Those were assigned to a special 

master for consideration in the first instance and later came back to the Court on its exceptions to the master’s 

recommendations. 

94. A low-tide elevation is a naturally formed area of land which is surrounded by and above water at 

low-tide but submerged at high-tide.” Article 11(1). It differs from an island in that the latter remains above 

water at high tide. 

Part One 61 

The Article’s language created a very clear controversy between the 

parties. A low-tide elevation lay within 3 miles of a line marking the mouth 

of a Louisiana bay. It was, therefore, within the territorial sea. It was not, 

however, within 3 nautical miles of any land. Louisiana argued that any 

low-tide elevation within the territorial sea would have its own territorial 

sea and that, in any case, “mainland” includes inland waters. The United 

States contended that the drafters were merely using the breadth of the 

territorial sea as a measure of the maximum distance that the feature could 

lie from upland and that a low-tide elevation that lay more than that 

distance from dry land does not generate a territorial sea. 

The Court reviewed the history of Article 11 and found that early drafts 

provided that all low-tide elevations located in the territorial sea were to 

have their own territorial seas. The United States proposed the amendment, 

which resulted in the present language. The change was made not to 

preclude the use of low-tide elevations that lay within the territorial sea of 

the mainland (including inland waters) but to assure that a coastal state 

could not leapfrog from one low-tide elevation to another. Id. at 46. In 

other words, any low-tide elevation within the territorial sea of the 

mainland or an island would have its own territorial sea. A low-tide 

elevation that lay only within the territorial sea of another low-tide 

elevation would not. Louisiana got to use the low-tide elevation within 3 

miles of its bay closing line. 

THE SEMICIRCLE TEST. The Court also resolved a number of questions 

involving the application of Article 7 of the Convention. Two of those 

concerned the proper means of measuring the area of a potential bay. 

Article 7 requires, among other things, that “an indentation shall not . . . be 

regarded as a bay unless its area is as large as, or larger than, that of the semicircle whose diameter is a line drawn across the mouth of that indentation.” 

Along most coasts that requirement raises few problems. But the geography 

of south Louisiana is unique. It is a patchwork of land and water. Adjacent 

water bodies are often connected by channels of varying width. The parties 

could not agree on whether, or when, such water areas could be treated as 

one for purposes of applying the semicircle test.95 

Louisiana proposed that “the area of tributary bays or other 

indentations must be included within that of the primary indentation.” Id. 

at 50. It pointed out that Article 7(3) indicates that “the area of an 

indentation is that lying between the low-water mark around the shore of 

the indentation and a line joining the low-water marks of its natural 

entrance points.” From that language the state concluded that one must 

“follow the low-water line wherever it goes, including into other 

indentations . . . .” Id. 

95. See Figure 48 infra for application of the semicircle test. 
62 Shore and Sea Boundaries 

The United States did not deny that some tributary waters should be 

included in the semicircle test but denied that all should be used. It focused 

on the Convention’s reference to “that indentation” and reasoned that inner 

bays may be included “only if they can reasonably be considered part of the 

single, outer indentation.” Id. at 51. In other words, the areas of water 

bodies linked only by narrow channels should not be combined for the 

semicircle test. 

The Court did not face the issue head on. Instead it considered two 

areas in contention and resolved the issues there on other grounds. First, it 

looked at Outer Vermilion Bay and concluded that if it were to follow the 

state’s logic the area would be too large to qualify as a bay (that is, its mouth 

would exceed 24 miles). One for the United States. It then considered 

Ascension Bay and concluded that it meets the semicircle test by including 

the areas of Caminada and Barataria Bays, which are only separated from 

Ascension Bay by a string of islands. Under the Convention islands will be 

ignored for semicircle purposes. One for the state. Future litigants may 

again have to deal with the issue, but the Court’s determination that 

intervening islands will not preclude otherwise separate indentations from 

being joined for semicircle test purposes provides some guidance. 

The second semicircle issue was clearly resolved. It arose in East Bay, a 

“V”-shaped indentation at the southern extreme of the Mississippi River 

delta. East Bay is formed by two mostly man-made channels of the river. 

The seawardmost headlands, tips of jetties at Southwest and South Passes, 

form an indentation that does not meet the semicircle test. However, a line 

can be drawn within the “V” that would enclose enough water to meet the 

test. Louisiana argued that because a 24-mile fallback line can be drawn 

within an overlarge bay, a line that satisfies the semicircle test should be 

allowed even though the line between an indentation’s natural headlands 

does not meet that requirement. 

The United States took the position that Louisiana’s proposed closing 

line ignored the primary requirements for bay status. It was not, by itself, a 

“well-marked indentation” with identifiable headlands enclosing 

landlocked waters. 

The Court left its master to determine whether Louisiana’s proposed line 

met those criteria, but made clear in its decision that they must be met. Like 

Louisiana, other states have attempted to argue that any indentation that 

meets the semicircle test is a juridical bay. But the Court was precise, saying 

“we cannot accept Louisiana’s argument that an indentation which satisfies 

the semicircle test ipso facto qualifies as a bay under the Convention. Such 

a construction would fly in the face of Article 7(2), which plainly treats the 

semicircle test as a minimum requirement.” Id. at 54. 

Part One 63 

ISLANDS IN THE MOUTH OF A BAY. A number of Louisiana’s bays are 

protected by barrier islands. These islands form multiple mouths to the 

bays. That is, they obviously dictate that a mariner pass to one side or the 

other if he wishes to enter the bay. Article 7 recognizes the possibility of 

such circumstances and, at least for purposes of the semicircle test, provides 

that “where, because of the presence of islands, an indentation has more 

than one mouth, the semicircle shall be drawn on a line as long as the sum 

total of the lengths of the lines across the different mouths.” 7(3). 

Louisiana was at pains to maximize its jurisdiction in these 

circumstances, or at least not sacrifice water areas that would have been 

inland in the absence of islands. To that end it argued that closing lines in 

multiple mouth bays should be drawn from the mainland headlands to the 

seawardmost points on the screening islands. The Court rejected that 

proposal, ruling that “there is no suggestion in the Convention that a 

mouth caused by islands is to be located in a manner any different from a 

mouth between points on the mainland, that is, by ‘a line joining the lowwater marks of [the bay’s] natural entrance points.’” Id. at 56. 

Alternatively, the state argued that in no event should any of the closing 

lines be drawn landward of a line between the mainland headlands. It 

reasoned that the Convention’s intent was to recognize that islands in the 

mouth of a bay tend to link the waters more closely to the mainland, 

justifying an enlargement, not a contraction, of inland waters. The Court 

recognized that logic for waters landward of the island chain but concluded 

that “just as the ‘presence of islands at the mouth of an indentation tends 

to link it more closely to the mainland,’ so also do the islands tend to 

separate the waters within from those without the entrances to the bay. 

Even waters which would be considered within the bay therefore 

‘landlocked’ in the absence of the islands are physically excluded from the 

indentation if they lie seaward of the mouths between the islands.” Id. at 

58. It ruled that “where islands intersected by a direct closing line between 

the mainland headlands create multiple mouths to a bay, the bay should be 

closed by lines between the natural entrance points on the islands, even if 

those points are landward of the direct line between the mainland entrance 

points.” Id. at 60.96 

ISLANDS AS HEADLANDS OF BAYS. Bays are indentations into the 

mainland. As a general proposition, therefore, their headlands will be 

projections from the mainland. Headland selection was an important issue 

in the Louisiana case and the United States took the position that islands 

96. The same can now be said for islands which form multiple mouths to a bay because they screen a large 

portion of its width even if they are not intersected by the line between mainland headlands. 
64 Shore and Sea Boundaries 

could not form the headlands of bays. But again Louisiana’s geography 

varies from the norm. The Supreme Court has described the Louisiana coast 

as “marshy, insubstantial, riddled with canals and other waterways, and in 

places consists of numerous small clumps of land which are entirely 

surrounded by water and therefore technically islands.” Id. at 63. In other 

words, in at least the delta areas, the mainland is islands. If an area of land 

surrounded by water at high tide (i.e., an island) cannot form the headland 

of a bay there are no bays on the Louisiana coast. That conclusion seems 

counterintuitive. 

In fact the Supreme Court had already determined that some of this 

marsh land should be considered mainland. In Louisiana v. Mississippi, a 

case about those states’ common boundary, the Court said “Mississippi 

denies that the peninsula of St. Bernard and Louisiana Marshes constitute a 

peninsula in the true sense of the word, but insists that they constitute an 

archipelago of islands. Certainly there are in the body of the Louisiana 

Marshes or St. Bernard peninsula portions of sea marsh which might 

technically be called islands, because they are land entirely surrounded by 

water, but they are not true islands.” Louisiana v. Mississippi, 202 U.S. 1, 45 

(1906). It went on to treat the peninsula as mainland. 

Much of the Louisiana coast is similar. In fact, the federal government 

had admitted that. 394 U.S. at 63. What is more, three acknowledged 

federal experts had assumed as much and sought to articulate principles for 

dealing with the situation.97 

With that history the Court had no trouble concluding that technical 

islands could form headlands in limited circumstances. It determined that 

a particular island’s status would depend on such things as “size, distance 

from the mainland, depth and utility of intervening waters, shape, and 

relationship to the configuration or curvature of the coast.” Id. at 66. It left 

to its special master, in the first instance, “in the light of these and any other 

relevant criteria and any evidence he finds it helpful to consider, whether 

the islands which Louisiana has designated as headlands of bays are so 

integrally related to the mainland that they are realistically parts of the 

‘coast’ within the meaning of the Convention . . . .” Id. We will look at the 

master’s application of those criteria momentarily. 

Although the Court reminded us that “the general understanding has 

been – and under the Convention certainly remains – that bays are 

indentations in the mainland, and that islands off the shore are not 

headlands . . .,” id. at 62 [emphasis in original], a formation is not 

precluded from serving as the headland of a bay solely by virtue of its being 

surrounded by water at high tide. 

97. See: Boggs, Delimitation of Seaward Areas Under National Jurisdiction, 45 Am. J. Int’l L. 240, 258 (1951); 

Pearcy, Geographical Aspects of the Law of the Sea, 49 Annals of Assn. Of American Geographers, No. 1, p. 1 at 9 

(1959); and Memorandum of April 18, 1961, from the Director, Coast and Geodetic Survey to the Solicitor 

General, excerpted in 1 Shalowitz, Shore and Sea Boundaries 161 n.125 (1962). 

Part One 65 

FRINGING ISLANDS. The Louisiana mainland is, in many places, 

fringed by barrier islands that roughly parallel the coast. Although 

conceding that none of these islands is so closely associated with the 

mainland as to be considered part of it, the state contended that the waters 

between the islands and mainland should be treated as inland for three 

reasons. First, Louisiana argued that the islands form the seaward perimeter 

of Article 7 juridical bays. Second, it urged that the federal government 

should be required to construct straight baselines around the islands as is 

permitted by Article 4. Finally, it suggested that pre-Convention principles 

should be used to establish inland water status.98 

The United States argued that under the Convention’s principles, as 

adopted by the Court for these purposes, fringing islands would create 

inland water only under Article 4. And, as the Court had said in California, 

the states could not impose that method on the federal government. 

Taking each of the state’s options in turn, the Court explained first that 

Article 7 is inapplicable. Its inland waters, described as indentations into 

the coast, could only be formed by mainland (keeping in mind the 

exception through which certain islands would be treated as mainland). 

Louisiana conceded that the formations at issue here did not qualify. 

The Convention, it pointed out, dealt with such formations but only in 

Article 4. Again reviewing Convention history, the Court explained that 

following the Anglo-Norwegian Fisheries Case99 “attempts were made to draft 

concrete rules for the uniform treatment of such island fringes, and both the 

International Law Commission (ILC) and the 1958 Geneva Conference 

discussed the problem at length. There was, however, too little technical 

information or consensus among nations on that and related subjects to 

allow the formulation of uniform rules. It was agreed, therefore, that . . . 

each nation was left free to draw straight baselines along suitable insular 

configurations if it so desired.” Id. at 69-70. 

According to the Court “the deliberate decision was that such island 

formations are not to be treated differently from any other islands unless 

the coastal nation decides to draw straight baselines.100 Thus, Article 4 

straight baselines do not appear by operation of law. Rather, they are an 

optional delimitation method, along a qualifying coast, and in the United 

States the federal government holds that option. 

98. Caillou Bay, west of the Mississippi River delta provides a good example for each of the state’s 

proposals. The “bay” is formed by the mainland marshes on the north and on the south by the western reaches 

of the Isles Dernieres chain. If the Isles Dernieres were not islands, but a peninsula of the mainland, Caillou 

Bay would qualify under Article 7. As is, the Isles Dernieres “fringe the coast in its immediate vicinity,” 

qualifying them for Article 4 straight baselines. And, under pre-Convention principles sometimes employed by 

the United States, Caillou Bay might have been treated as inland. In fact, Caillou Bay was enclosed by a coast 

line proposed by the federal government when it assumed that principles in place in 1953 would be employed 

for Submerged Lands Act purposes. 

99. United Kingdom v. Norway, [1951] I.C.J. 116. 

100. Without straight baselines “the territorial sea of an island is measured in accordance with the 

provisions of these articles.” Article 10(2). That is, islands will have belts of territorial seas around them. 
66 Shore and Sea Boundaries 

The Court dealt with Louisiana’s pre-Convention thesis in a footnote. 

Id. at 73 n.97. It noted that at an earlier stage of the litigation the federal 

government had conceded that Louisiana’s island fringes enclosed inland 

waters. The Court later announced that the Convention’s principles would 

be used for Submerged Lands Act boundary delimitation and opined that 

the federal government was not bound by the concession based on a 

misconception of what law would apply. Id. 

However, the Court left the door open on the issue, giving the states a 

limited opportunity to capitalize on pre-Convention boundary delimitation 

principles. In that regard it said “it might be argued that the United States’ 

concession reflected its firm and continuing international policy to enclose 

inland waters within island fringes . . . . If that had been the consistent 

official international stance of the Government, it arguably could not 

abandon that stance solely to gain advantage in a lawsuit to the detriment 

of Louisiana.” Id. at 74 n.97. Quoting from its California decision it said “‘a 

contraction of a State’s recognized territory imposed by the Federal 

Government in the name of foreign policy would be highly questionable.’ 

[United States v. California, 381 U.S. 139, 168] We do not intend to preclude 

Louisiana from arguing before the Special Master that, until this stage of the 

lawsuit, the United States had actually drawn its international boundaries in 

accordance with the principles and methods embodied in Article 4 of the 

Convention on the Territorial Sea and the Contiguous Zone.” 394 U.S. at 

74 n.97. 

Louisiana accepted the Court’s invitation and made that argument 

before the special master, as have other states since. None has been 

successful.101 

HISTORIC INLAND WATERS. Louisiana argued before the Court that 

all of the waters that it was claiming in the action qualified as “historic bays” 

and need not conform to the principles of the Convention to achieve inland 

water status. Historic waters questions are always fact bound and the Court 

left to its special master “the task of determining in the first instance 

whether any of the waters off the Louisiana coast are historic bays.” Id. at 

75. It did however expand on guidance previously available. 

For example, it made clear that Louisiana was free to rely on state 

assertions of jurisdiction in support of its claim, just as the United States 

101. In an interesting conclusion to the point the Court adhered to its position that “the selection of this 

optional method of establishing boundaries should be left to the branches of Government responsible for the 

formulation and implementation of foreign policy.” Id. at 72-73. Counsel in subsequent cases have 

occasionally (and inaccurately, we believe) suggested that but for the tidelands litigation the United States 

would have long since adopted straight baselines. The Court’s next sentence suggests that even if that were true 

it would be irrelevant. It finished the thought by declaring that “it would be inappropriate for this Court to 

review or overturn the considered decision of the United States, albeit partially motivated by a domestic 

concern, not to extend its borders to the furthest extent consonant with international law.” Id. at 73. 

Part One 67 

could if it were making the claim. It explained that “the only fair way to 

apply the Convention’s recognition of historic bays to this case, then, is to 

treat the claim of historic waters as if it were being made by the national 

sovereign and opposed by another nation. To the extent that the United 

States could rely on state activities in advancing such a claim, they are 

relevant to the determination of the issue in this case.” Id. at 77-78. That 

question had been left unanswered in the California case. 

The Court also reiterated its positions from California that in the face of 

a federal disclaimer of historic title the state’s evidence would have to be 

“clear beyond doubt.” Id. at 77. 

With those guidelines the Court left the historic waters questions to its 

special master. 

The Special Master Proceedings 

The Supreme Court soon appointed Mr. Walter P. Armstrong, Jr., of 

Memphis, Tennessee, as its special master “to make a preliminary 

determination consistent with the opinion of the Court.” United States v. 

Louisiana, 395 U.S. 901 (1969). The parties prepared a joint Pretrial 

Statement that set out the issues that they understood to be before the 

special master.102 There followed seven weeks of trial over a seven-month 

period. Forty-six volumes of transcript resulted and 775 exhibits were 

introduced. 

The special master divided his Report to the Court by legal issues, 

including straight baselines, historic bays, and juridical bays. United States 

v. Louisiana, Report of the Special Master of July 31, 1974. 

STRAIGHT BASELINES. The Supreme Court had already said much 

about Louisiana’s straight baseline claim in the portion of its 1969 decision 

denominated “Fringes of Islands.” Louisiana Boundary Case, 394 U.S. 11, 66-

73 (1969). It seems to have come close in that discussion to denying all 

straight baseline claims, but not quite. As noted above, it appended a 

footnote that read “we do not intend to preclude Louisiana from arguing 

before the Special Master that, until this stage of the lawsuit, the United 

States had actually drawn its international boundaries in accordance with 

the principles and methods embodied in Article 4 of the Convention . . . .” 

Id. at 74 n.97. Louisiana accepted that invitation.103 

102. The Statement is attached to the Special Master’s Report of July 31, 1974. See: Reed, Koester and 

Briscoe, supra, at 241. A similar Statement of Issues was produced as part of the special master proceedings in 

United States v. Alaska, this time including a brief summary of each party’s position on each issue. These 

documents added to the efficiency of both trials. 

103. Article 4(1) of the Convention provides that “[i]n localities where the coastline is deeply indented 

and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight 

baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the 

territorial sea is measured.” Subsequent paragraphs of Article 4 provide guidance for the construction of 

straight baselines. 
68 Shore and Sea Boundaries 

Before the special master, Louisiana contended that no fewer than five 

sets of federal lines along the Louisiana coast, all drawn prior to the 1958 

Convention, were “straight baselines.” The United States denied that any 

had been constructed for that purpose and the special master considered 

each separately. 

The Coast Guard Inland Water Line. The Supreme Court had already 

dealt, at some length, with Louisiana’s argument that the Coast Guard’s line 

for dividing inland rules of the road from international rules constituted the 

state’s “coast line.” 394 U.S. at 17-35. It concluded that neither Congress, 

in authorizing the line, nor the executive branch, in constructing it, 

intended the “Inland Water Line” to be a territorial boundary. “While the 

Submerged Lands Act established boundaries between the lands of the 

States and the Nation, Congress’ only concern in the 1895 Act was with the 

problem of navigation in waters close to this Nation’s shores. There is no 

evidence in the legislative history that it was the purpose of Congress in 

1953 to tie the meaning of the phrase ‘inland waters’ to the 1895 statute.” 

Id. at 19. 

Nevertheless, Louisiana persisted and put the same issue before the 

master. He concluded that the Court’s prior determination “would appear 

to conclude the matter insofar as the Special Master is concerned, as only 

those issues not decided by the Court itself are referred to him for 

consideration.” Report at 8. But he added “however, lest there be any doubt 

it is now specifically held that the Inland Water Line does not constitute a 

system of straight baselines within the meaning of Article 4 of the Geneva 

Convention . . . .” Id. at 9. 

The Chapman Line. Louisiana’s second straight baseline example was a 

line drawn by the federal government not for international purposes but as 

a proposed coast line for implementing the Court’s 1950 decision in the 

case, and adopted in 1956 as a basis for allocating revenues and 

administrative responsibility for offshore leases during the ongoing 

litigation.104 Perhaps more important is the fact that the 1956 Interim 

Agreement specifically provided that “no inference or conclusion of fact or 

law from the said use of the so-called ‘Chapman-Line’ or any other 

boundary of said zones is to be drawn to the benefit or prejudice of any 

party . . . .” Quoted at 394 U.S. at 73-74 n. 97. A 1971 Stipulation between 

the parties, through which the United States conceded Louisiana title to 

certain waters within the Chapman Line, also provided that “Louisiana 

recognizes . . . the United States’ position that these are not wholly inland 

104. It is important to remember the Chapman Line, named after the then secretary of the interior, was 

developed prior to the Supreme Court’s announcement in the California case that principles of the 1958 

Convention would be employed for inland water determinations under the Submerged Lands Act. For a 

thorough discussion of the Chapman Line see 1 Shalowitz, supra, at 108-112. 

Part One 69 

waters, and agrees that Louisiana does not and will not base its arguments 

regarding the inland water status of these or any other water in this or any 

future litigation between it and the United States upon this stipulation, 

upon the action of the United States in fixing the Chapman Line in this 

area or upon prior concessions regarding this area made by the United 

States . . . .”105 

The master concluded that “in view of the foregoing, it clearly appears 

that the Chapman Line does not meet the requirements of Article 4 of the 

Geneva Convention for a system of straight baselines, and it is now 

specifically so held.” Report at 10. 

The Louisiana v. Mississippi Chart. Louisiana’s third straight baseline 

claim was based upon a chart produced by the Supreme Court as an 

illustration to its decision in Louisiana v. Mississippi, 202 U.S. 1 (1906). The 

master pointed out that the opinion included three different versions of the 

line. Its purpose was to illustrate Louisiana’s eastern boundary, not its 

inland water or offshore limits. It was used by the judicial branch, not by a 

branch responsible for foreign affairs. And finally, it was not a straight line 

at all but “an attempt to follow the coastline at a distance of one marine 

league.” Report at 10. To top it off, in Louisiana v. Mississippi, the Supreme 

Court had clearly stated that it was not dealing with “questions as to the 

breadth of the maritime belt” or “the extent of the sway of the riparian 

States” offshore. 202 U.S. at 52. The master rejected the Supreme Court’s 

line as evidence of an Article 4 straight baseline. 

The Census Boundaries. In 1937 the Department of Commerce engaged 

in an exercise to measure the area of the United States and its political 

subdivisions for purposes of the 1940 census. As part of that process it 

developed its own system of delimiting water bodies. Proudfoot, 

Measurement of Geographic Area, U.S. Department of Commerce (1946). 

Louisiana equated that system to a straight baseline system.106 The master 

disagreed, saying “this determination was made . . . many years before the 

adoption of the Geneva Convention, for purposes totally unconnected with 

it; and the results were certainly never clearly indicated on charts which were 

given due publicity to the nations of the world. It therefore follows that 

whatever their validity may have been for internal purposes, the census line 

established in 1937 did not constitute a system of straight baselines within 

the meaning of the Geneva Convention . . . .” Report at 11. 

Bird Sanctuaries. President Theodore Roosevelt determined that seabirds 

needed protection along the Louisiana coast. To provide that protection he 

105. Stipulation of January 21, 1971, signed by Solicitor General Erwin N. Griswold and Attorney General 

Jack P.F. Gremillion. Reproduced by the Special Master at pages 63-66 of his Report of July 31, 1974. 

106. Shalowitz cites it as an application of the wholly unrelated semicircle method. 1 Shalowitz, supra, at 

40-41. 
70 Shore and Sea Boundaries 

established bird sanctuaries at the Tern Islands and Shell Keys. As was his 

tradition, the president took maps of the areas, drew circles on them and 

described the sanctuaries as “all small islets, commonly called mudlumps in 

or near the mouths of the Mississippi River, Louisiana, located within the 

area segregated and shown upon the diagram hereto attached and made 

part of this order.” [Tern Islands.] And, “these islets, located within the area 

segregated and shown upon the diagram hereto attached and made a part 

of this order.” [Shell Keys.] 

Louisiana argued that the president’s lines were straight baselines, 

setting the limits of the United States’ inland water claims “which are now 

entitled to be recognized under the Geneva Convention.” Report at 11. The 

master thought otherwise, concluding that “even a cursory glance at these 

orders and the diagrams attached to them, will, however, serve to dissipate 

this impression. In neither case is there a system of straight lines drawn 

from point to point, but merely a roughly drawn circular line enclosing an 

area in which there is both land and water, the line having reference to no 

particular points of land whatsoever. The purpose is obviously not to 

establish a boundary between inland and territorial waters, but to establish 

a limit within which bird life will be protected to the extent established by 

the order itself.” Report at 11-12. 

The state sought support in a prior Supreme Court decision that 

concluded that an Indian reservation, whose boundaries might have been 

read to include only uplands, must be understood to include adjacent 

waters because the tribe involved was dependent on fishing. Alaska Pacific 

Fisheries v. United States, 248 U.S. 78 (1918). Louisiana argued that the 

seabirds being protected here are just as dependent on the adjacent waters 

which, therefore, must have been included within the reservations. 

The master pointed out that territorial waters around the islets were 

adequate to provide the protection and that there was, therefore, no need to 

assume inland water status. He rejected the state’s claim. 

None of the state’s straight baseline examples indicated that “the United 

States had actually drawn its international boundaries in accordance with 

the principles and methods embodied in Article 4 of the Convention.” The 

master went on to the next issue. 

HISTORIC BAYS. Louisiana claimed that certain portions of its coastal 

waters qualified as historic inland waters. Because historic water 

determinations are largely factual, the Court set out applicable principles 

but left the primary analysis to its master. 394 U.S. at 75. 

The Convention says nothing about how historic waters are to be 

proved, only that the usual rules of Article 7 are not applicable to them. So 

the Court and its masters have relied upon the United Nations study 

entitled Juridical Regime of Historic Waters, Including Historic Bays, [1962] 2 

Part One 71 

Y.B. Int’l L. Comm’n 1, U.N. Doc. A/CN.4/143 (1962). That study sets out 

three factors to be considered in determining historic water status: (1) 

exercise of authority over the area, (2) the continuity of that exercise, and 

(3) the attitude of foreign states. Id. at 13.107 

The Supreme Court had twice said that where the federal government 

had disclaimed historic title the states would have to prove title by evidence 

that is “clear beyond doubt.” United States v. California, 381 U.S. 139, 175 

(1965) and United States v. Louisiana, 394 U.S. 11, 77 (1969). It had also 

determined that evidence of state exercises of authority, not just federal, 

could be used to prove the claim. 

Special Master Armstrong evaluated the state’s evidence in light of these 

principles. To begin, he found that the United States had disclaimed the 

historic title urged by Louisiana. As evidence he pointed to the federal 

position in this litigation, a letter from the secretary of state denying any 

historic waters claim along the Louisiana coast, and the publication of 

official federal charts that depict the United States’ maritime claims and do 

not include any historic waters off Louisiana.108 

He then turned to a review of Louisiana’s evidence. The state showed 

that it had issued oyster and mineral leases and conducted pollution control 

activities in the areas claimed. But the master pointed out that each of these 

was within 3 miles of the shoreline. Since international law has long 

recognized the right of a coastal state to conduct such activities in its 

territorial sea, Louisiana’s actions did not put foreign governments on 

notice of an inland water claim. Report at 19-21. The exercise of authority 

must be consistent only with the claim being asserted. 

A state witness also testified that in 1946 or 1947 he had arrested three 

Mexicans for fishing about 4.3 miles from land in East Bay. There was no 

documentary evidence of the arrest or any indication that the Mexican 

government ever knew of, or acquiesced in, the arrest. Report at 20. The 

master concluded that “it can hardly be said that this isolated incident 

meets the tests set forth earlier for establishing sovereignty sufficient to 

support a claim to historic waters. Certainly no continuity is indicated, nor 

any acquiescence by a foreign government.” Id. at 20-21. From all of the 

evidence the master concluded that “there is no basis for Louisiana’s claim 

of historic inland waters extending beyond the limits of its coastline as 

107. The subject of historic waters, and a separate discussion of each of the historic claims in tidelands 

cases, is found below. 

108. These were the first edition of charts produced by the interagency “Baseline” or “Coastline” 

Committee. The Committee has continued its work since its inception in 1970 and its official federal position 

as to the location of the United States’ maritime boundaries is now published on the standard National Ocean 

Service charts of our coast. As the special master pointed out in Louisiana, “these maps are available for sale 

to the general public and have been distributed to foreign governments in response to requests to the United 

States Department of State for documents delimiting the boundaries of the United States.” Report at 17. 
72 Shore and Sea Boundaries 

determined by Section 2(c) of the Submerged Lands Act.” Id. at 21. “Far 

from being clear beyond doubt, the evidence here adduced resembles that 

introduced in the California case, which was held to be questionable, and 

therefore insufficient to support a finding of historic waters in the face of a 

contrary declaration of the United States.” Id. at 22. 

THE ACTUAL LOW-WATER LINE. Questions about the true location of 

the “ordinary low-water line” are likely to appear in any tidelands 

controversy. Special Master Armstrong approached his task assuming that 

large-scale nautical charts accurately depict the low-water line. Report at 25 

and 44. Although he indicated that exceptions would be made only where 

“the departure from the large-scale charts . . . is so substantial as to affect 

materially the location of the coastline,” Report at 25, he did not exclude 

any evidence of inaccuracies, no matter how slight, and any proven 

correction was included in the coast line described in the Court’s 

final decree. 

The lesson for future litigants is that the charted line will probably be 

accepted as the prima facie low-water line but any party will be allowed to 

prove that it has actually moved.109 

JURIDICAL BAYS. Much of the Louisiana coast is composed of 

indentations which qualify under Article 7 as juridical bays. Usually the 

parties agreed on that much. They typically did not agree, however, on the 

locations of the mouths of those bays, that is, where inland waters ended 

and the territorial sea began. The special master applied Article 7’s 

principles to the geography and made those determinations. 

Although the Master’s Report deals with each bay separately, working 

from east to west as the parties had framed their joint statement of issues, 

we think it more useful for our purposes here to organize the discussion 

around the legal questions he encountered and resolved. Most, if not all, of 

his work is directly applicable to coast lines elsewhere. 

Islands v. Mainland. After the Supreme Court concluded that features 

that meet the Convention’s definition of “island” may nevertheless be 

assimilated to the mainland and serve as headlands to bays, the special 

master was faced with a number of areas in which that question arose. Most 

common were the “mudlumps” found off the Mississippi delta. Typically 

these features appear just seaward of the jetties that form the mouths of the 

river’s distributaries. These jetties frequently form the sides of indentations 

into the mainland. The United States contended that seaward tips of the 

jetties formed the headlands, and natural entrance points, to the 

indentations. The state took the position that the more seaward mudlumps, 

109. Again we emphasize that we are not suggesting that the chart, as printed, contained errors. Rather 

the Court recognizes that with erosion and accretion no chart is likely to remain accurate forever. 

Part One 73 

though technically islands, should be assimilated to the mainland and serve 

as headlands for bay closing lines.110 

The special master reviewed each of the examples in light of the 

Supreme Court’s assimilation criteria, set out at 394 U.S. at 66, and 

concluded that mudlumps are too far removed from the actual mainland to 

be considered part of it. In the process he ruled that all five of the Court’s 

criteria must be met to find assimilation to the mainland. Report at 3 

and 39. 

The master did recognize Cow Horn Island, along the eastern shore of 

East Bay, as assimilated to the mainland and therefore a proper headland for 

a “bay” within East Bay. Actually, the parties agreed on its status, while it 

existed. However, Cow Horn Island also presented a different problem. It 

was depicted on nautical charts from 1928 until 1969, after which it 

apparently slumped below even the low-water datum. The special master 

ruled that those charts provided the only reliable evidence of its elevation. 

While it existed, the master found that Cow Horn Island formed the 

headland of a bay within East Bay, which met all of Article 7’s requirements. 

Upon its disappearance, however, no alternative headland existed in 

the vicinity. 

Louisiana argued that if the Cow Horn Island closing line existed until 

1969 the state “obtained certain vested rights in the area landward of that 

line of which it cannot now be dispossessed.” Report at 34. The master 

disagreed, reasoning that “if this were the case, its shoreline would be fixed 

at the furthest extent to which it ever projected, which would be contrary to 

the concept of an ambulatory shoreline.” Id. In short, when the Supreme 

Court referred to an ambulatory coast line, it meant inland water closing 

lines as well as the actual low-water line.111 

The special master made one other important determination concerning 

island assimilation. The Supreme Court’s criteria for island assimilation 

110. In some instances the offshore features were actually low-tide elevations. For assimilation purposes 

the parties did not distinguish between the two. It seems that if an island is properly assimilated to the 

mainland, so too is a low-tide elevation. Because a bay’s entrance point is on the low-water line in any case, 

there is no immediately obvious reason for treating them differently. 

111. The master commented on one other formation in the context of “islands to be assimilated to 

mainland.” With regard to the western Isles Dernieres, he concluded that “the Special Master would upon the 

evidence presented before him be inclined to hold that based upon their size, proximity, configuration, 

orientation and nature these islands would constitute an extension of the mainland . . . .” Report at 50-51. 

Nevertheless, he found that that option had been foreclosed by the Supreme Court. In its discussion of the 

same area the Court had said “Louisiana does not contend that any of the islands in question is so closely 

aligned with the mainland as to be deemed a part of it, and we agree that none of the islands would fit that 

description.” 394 U.S. 11, 67 n.88. Future litigants who cite to Mr. Armstrong’s Isles Dernieres example should 

take note of the fact that he was influenced by a holding of the special master in United States v. Florida, Number 

52 Original, concerning the relationship of the Florida Keys to the mainland. The United States excepted to 

that ruling, the matter was returned to the master for further consideration, and Florida stipulated that the Keys 

are not part of the mainland. Even more compelling, the Supreme Court had another look at the matter on 

Louisiana’s exceptions in this case. It did not change its previously announced conclusion as to the Isles 

Dernieres. 
74 Shore and Sea Boundaries 

involve the island’s relationship to the “mainland.” The federal government 

took that to mean the nearest upland. Louisiana was more free thinking on 

the issue. It urged that since inland waters are, in a sense, part of the 

mainland (that is, the coastal state asserts similar jurisdiction over them), 

islands in the vicinity of an acknowledged inland water line should be 

assimilated to the mainland despite the fact that there may be no land 

nearby. Louisiana’s theory would have permitted the acknowledged closing 

line to be extended seaward to the nearby island, and to leapfrog even 

farther seaward if additional islands might be assimilated to the original 

island or the closing line drawn to it. 

The master rejected the idea reasoning that “while for some purposes 

inland waters may be considered a part of the mainland, they are 

nevertheless waters and not land, and therefore land bodies lying adjacent 

to them are not assimilable to them as such, but retain their characteristics 

as islands. It seems apparent that when the Court used the term ‘mainland,’ 

it used it to refer to an existing body of land and not to inland waters.” 

Report at 42.112 

The Semicircle Test. The Court provided useful guidance for determining 

when the area of adjacent water bodies might be included to test whether a 

particular indentation meets the semicircle requirements of Article 7. As a 

consequence there were fewer “area” questions before the master than 

might otherwise have been the case. The parties were unable, however, to 

agree on the significance, if any, of rivers that flow into the indentation 

being tested. Louisiana urged that “if a river does not flow directly into the 

sea but into a bay, a straight line should not be drawn across its mouth but 

instead the low-water mark around the shore of the bay should be followed 

up into the tributary waters.” That, of course, would produce a larger water 

area and increase the likelihood that the indentation being measured would 

meet the semicircle test. 

The United States contended that tributary rivers should not be included 

in the area measurement of a would-be bay. The master agreed. He 

recommended that lines be drawn across the mouths of rivers as they 

entered bays and their waters be excluded from the bay measurement. 

Report at 31. 

Entrance Points. In a number of instances the parties agreed that an 

indentation met the requirements of Article 7 and was, therefore, inland 

waters, yet could not agree on the location of a water body’s closing line. 

112. To confuse the question, the same special master later faced what appears to be the identical issue in 

the Mississippi Sound case and reached a different result. There he recommended that Dauphin Island be 

treated as mainland because it comes in contact with the inland waters of Mobile Bay. United States v. Louisiana 

(Alabama and Mississippi Boundary Cases), Report of April 9, 1984, at 18. We make no effort to explain the 

difference. The United States took strong exception to the recommendation in the Alabama and Mississippi 

Boundary Cases, but the Supreme Court ruled on other grounds. 470 U.S. 93 (1985). 

Part One 75 

The Convention provides only that the line connects “the low-water marks 

of its natural entrance points.” Article 7(3). 

The United States understood this phrase to describe the point at which 

the coast line changes direction such that the shore in one direction faces 

more on the open sea and in the other direction more on the protected 

waters. A number of methods have been suggested for locating entrance 

points. But the preferred method, which seemed applicable to all contested 

indentations along the Louisiana coast, is known as the 45-degree test. The 

government had constructed proposed closing lines using that test. They 

were explained through the testimony of the State Department geographer, 

Dr. Robert Hodgson, who had devised it.113 Louisiana selected more 

seaward entrance points, resulting in more seaward closing lines. 

The master recommended the federal lines. Although the 45-degree test 

is not mentioned in his Report, or the Supreme Court decision accepting his 

recommendations, as the basis for the recommended closing lines, it was 

consistently employed in their construction. The eventual Supreme Court 

decree describes closing lines that reflect the test’s application and can, 

presumably, be cited as an example of the Court’s approval of the 45-

degree test.114 

OVERLARGE BAYS. Article 7 of the Convention limits the length of a 

bay closing line to 24 nautical miles. However, it provides that where a bay 

meets all other requirements of the Article “a straight baseline of twentyfour miles shall be drawn within the bay in such a manner as to enclose the 

maximum area of water that is possible with a line of that length.” 

Article 7(5). 

Louisiana contended that its coast line includes two such “overlarge” 

bays. The first is referred to in the litigation as “Ascension Bay,” although it 

is rarely named on nautical charts or maps of the Louisiana coast.115 (Figure 

11) It is the large water area just west of the Mississippi delta and its natural 

entrance points are said to be the eastern tip of Belle Pass jetty on the west 

and the seaward tip of the east jetty at Southwest Pass on the east. A line 

113. The test is employed by locating the seawardmost potential headlands and constructing a closing line 

between them, connecting those headlands with the next landward potential headland on that side and 

measuring the angle between the two lines. If both angles are more than 45 degrees all enclosed waters are 

landlocked. If either angle is less than 45 degrees the intervening shoreline faces more on the open sea than 

enclosed water. In that case the original closing line is rejected, another is constructed using the more landward 

headland, and the process is repeated until angles on both sides of the indentation are more than 45 degrees. 

See Figure 57 infra. 

114. The test was later applied in seeking a closing line in the area of Long Island Sound. United States v. 

Maine (Rhode Island, New York), Report of the Special Master, October Term, 1983, at 50 n.39. It was referred 

to by the Supreme Court, with approval, when it adopted the recommendations of that Report. Rhode Island 

and New York Boundary Case, 469 U.S. 504 (1985). 

115. A feature need not, of course, be named a “bay” to qualify under Article 7, nor does the fact that it is 

so named add any weight to a bay claim. 
76 Shore and Sea Boundaries 

Figure 11. Ascension Bay, Louisiana, an overlarge bay. 

between the points exceeds 24 miles so it cannot be closed en toto. The state 

contended, however, that in all other respects it meets the requirements of 

Article 7. 

The Supreme Court had already ruled that Ascension Bay meets the 

semicircle test. 394 U.S. 11, 52-53. The state argued that it is also “a wellmarked indentation,” containing “landlocked waters,” and “more than a 

mere curvature of the coast” (the primary requirements of Article 7). It 

introduced examples of accepted juridical bays, both in this country and 

abroad, whose configurations are similar to Ascension Bay. The United 

States had to acknowledge the similarities but contended that 

“landlockedness” could not be determined by shape alone and that as bays 

increase in size their headlands should have to “pinch” in toward each other 

more and more to create landlocked waters. 

The master was apparently unmoved by the suggestion. Ruling for the 

state he noted that Ascension Bay “constitutes an over-large bay within the 

meaning of Article 7 of the Convention on the Territorial Sea and the 

Contiguous Zone. All of the evidence in the record indicates that it does. 

Certainly its waters are landlocked, or, as sometimes described Inter Fauces 

Terrai, with well marked natural entrance points. This is supported by the 

ratio of its depth of penetration to the width of its mouth, for it is almost 

perfectly semicircular in shape, the classic form of a bay. In this respect, it 

bears a startling resemblance to Monterey Bay, which was held to be a true 

Part One 77 

bay in the California case.” Report at 45. The United States did not take 

exception to that recommendation. The parties were able to agree on the 

24-mile fallback line and it was incorporated into the Court’s final coast line 

description.116 

Louisiana’s second overlarge bay claim arose in Atchafalaya Bay. The 

United States acknowledged the inland water status of that water body as 

bounded by a line from Point Au Fer on the east to South Point on Marsh 

Island on the west, as the Court had already held. 394 U.S. at 40. That line 

is less than 24 miles and encloses an indentation that meets all 

requirements of Article 7. But the state wanted more. It argued that the 

Shell Keys south of Marsh Island and low-tide elevations west of Point Au 

Fer should be considered part of the mainland and headlands to an 

overlarge bay that includes the area already considered by the Court and 

additional waters to the south. Alternatively, the state contended that an 

overlarge bay is formed by the federal entrance point on Point Au Fer and 

Mound Point on Marsh Island. Both of the state’s alternatives produced 

lines of more than 24 miles but a 24-mile fallback line could have been 

constructed that was seaward of the line conceded by the United States. 

The special master recommended adoption of the federal position. He 

determined, with respect to Louisiana’s primary theory, that “the size and 

location of the elevations [i.e., Shell Keys and low-tide elevations west of 

Point Au Fer] makes it impossible realistically to view them as extensions of 

the mainland.” And, as to the alternate, “the relation of Mound Point to the 

coast is such that a line drawn to it would include waters that cannot be 

viewed as ‘landlocked.’ The natural entrance to Atchafalaya Bay on the west 

is clearly South Point.” Report at 52-53. 

The master submitted his Report to the Court, the parties filed 

exceptions and, in a one-page order, the Court adopted the master’s 

recommendations without further comment. Louisiana Boundary Case, 420 

U.S. 529 (1975). Between the Court and its master all Louisiana coast line 

issues were resolved. Decrees describing the coast line and 3-mile 

projection were prepared and entered. United States v. Louisiana, 422 U.S. 

13 (1975) and 452 U.S. 726 (1981). Thereafter, complicated accountings 

were exchanged and oil and gas revenues collected during the life of the 

litigation were distributed between the parties.117 

116. That line now appears on the National Ocean Service’s large-scale chart of the area. Because the 

charts contain no explanation of the basis for closing lines that they depict (and there’s no way that they could) 

some users have mistakenly assumed that this line represents the mouth of an indentation that qualifies as a 

juridical bay in its own right. It does not. 

117. Because of the rule that coast lines are ambulatory, the entire process might have been repeated some 

time thereafter. However, largely due to the efforts of Louisiana’s congressional delegation, the Submerged 

Lands Act was amended in 1986 to provide that any Submerged Lands Act boundary described in a Supreme 

Court decree would thereafter become fixed. (100 Stat. 151, amending 43 U.S.C. 1301[b]). The Supreme Court 

had suggested that course as a possibility in the Louisiana case when the state expressed concern about 

ambulatory boundaries. United States v. Louisiana, 394 U.S. 11, 34 (1969). Louisiana now has a fixed 

Submerged Lands Act boundary. 452 U.S. 726 (1981). 
78 Shore and Sea Boundaries 

The Alabama and Mississippi Boundary Cases 

In its 1960 decision in United States v. Louisiana, et al., the Supreme 

Court denied Alabama’s and Mississippi’s claims to a 9-nautical mile 

historic boundary in the Gulf of Mexico. 363 U.S. 1. At the same time it 

held that they were entitled, under the Submerged Lands Act, to grants of 3 

miles from their coast lines, id. at 79-82, but made no determination as to 

the location of that coast line. Id. at 82 nn.135 and 139. At the time, the 

parties thought that they would be able to agree on a coast line description 

but that was not to be. 

In 1979 and 1980 the two states filed motions for a supplemental 

decree and the United States filed cross motions. The matter was referred to 

Special Master Walter P. Armstrong, Jr., who had presided over the extensive 

trial of Louisiana’s coast line. The master was presented with one overriding 

issue, whether the water body known as Mississippi Sound is inland water 

or a combination of territorial seas and high seas. 

Mississippi Sound, as the Supreme Court described it, is “a body of 

water immediately south of the mainland of the two States. It extends from 

Lake Borgne on the west to Mobile Bay at the east, and is bounded on the 

south by a line of barrier islands . . . . The Sound is approximately 80 miles 

long and 10 miles wide.” Alabama and Mississippi Boundary Cases, 470 U.S. 

93, 96 (1985). (Figure 12) 

The United States argued that there was no basis for considering 

Mississippi Sound to be inland water and claimed that the states’ 

jurisdiction extended 3 miles seaward from the mainland and 3 miles 

around each island. Because the Sound is as much as 10 miles wide in 

places, that left enclaves of high seas in its center. These, it said, were under 

federal jurisdiction. 

Alabama and Mississippi raised three bases for their contention that the 

Sound is entirely inland waters. First, they asserted that “by its action 

(although not explicitly) the United States has in fact adopted . . . [Article 

Figure 12. Mississippi Sound off the coasts of Alabama and Mississippi. 

(Based on NOAA Chart 11006) 

Part One 79 

4] straight baselines, which would include Mississippi Sound as inland 

waters.” Alabama and Mississippi Boundary Cases, Report of the Special 

Master of April 9, 1984, at 5. Next, the states argued that Mississippi Sound 

is a juridical bay under Article 7 of the Convention. And finally, they 

contended that it has been claimed as a historic bay. 

Straight Baselines 

There is no question that Alabama and Mississippi have “a fringe of 

islands along the coast” such that Article 4 straight baselines could be 

employed, making Mississippi Sound inland waters. The states did not 

contend that the United States had drawn such lines but that it had 

“traditionally claimed as inland waters sounds and straits lying behind 

islands where none of the entrances between islands or islands and the 

mainland exceeds ten miles in width, and that this amounts to the adoption 

of straight baselines.” Report at 5. 

Only 10 years before Mr. Armstrong had rejected Louisiana’s similar 

straight baseline claim, which had been supported by a proposed federal 

coast line based upon the 10-mile rule.118 The Supreme Court had adopted 

his recommendations on that and all other issues in the Louisiana case. 420 

U.S. 529 (1975). 

Relying on his previous analysis, and language from the Court in United 

States v. California, the master determined that “the adoption of the 24-mile 

closing line together with the semi-circle test in place of the ten mile rule 

represents the present position of the United States and that this has 

resulted in no contraction of the recognized territory of the States of 

Alabama and Mississippi for reasons that will hereafter appear, and that 

therefore Article 4 of the Convention does not apply.” Report at 7.119 

Despite the master’s understanding that the United States had employed the 

10-mile rule for as much as 58 years, he concluded that “the United States 

has not in fact adopted the straight baseline method authorized by Article 4 

. . . .” Id. 

He went on to evaluate the parties’ juridical bay contentions. 

118. The so-called Chapman Line was created at a time when the federal government assumed that the 

United States’ international practice in 1953, upon passage of the Submerged Lands Act, would be applied to 

define the term “inland waters” as used in that statute. Of course the Supreme Court adopted, instead, the 

much more comprehensive definitions of the 1958 Geneva Convention on the Territorial Sea and the 

Contiguous Zone and the Chapman Line became irrelevant for coast line delimitation purposes. 

119. The Supreme Court passage referred to by the master reads “we conclude that the choice under the 

Convention to use the straight-baseline method . . . is one that rests with the Federal Government, and not with 

the individual States.” United States v. California, 381 U.S. 139, 168 (1965). Interestingly the master and, upon 

later review, the Supreme Court gave some weight to the 10-mile rule in their historic waters analyses. Their 

comments that the “rule” was employed by the federal government from 1903 until 1961 became the basis for 

Alaska’s straight baseline claim soon thereafter. 
80 Shore and Sea Boundaries 

Juridical Bays 

Alabama and Mississippi took the position that Mississippi Sound 

meets all of the requirements of Article 7 and is therefore inland water 

without straight baselines or historic assertions of jurisdiction. The special 

master agreed. Curiously, his determination is founded on a legal 

conclusion that appears to directly contradict his decision on the same 

question in the Louisiana Boundary Case. That issue is whether an island can 

be assimilated to the mainland through its relationship to admitted inland 

waters despite the absence of actual uplands in the vicinity. 

The formation in question is Dauphin Island, which lies in the mouth 

of Mobile Bay at the far eastern end of Mississippi Sound. The master 

concluded that Dauphin Island “constitutes an extension of the mainland.” 

We will consider his bases for that conclusion below. But first we look at its 

consequences. 

Having concluded that Dauphin Island is in fact mainland, the master 

considered the specific requirements of Article 7. To determine whether the 

Sound is a “well marked indentation containing land locked waters” he 

looked for clearly distinguishable natural entrance points, which he found 

at Isle au Pitre and Dauphin Island. Report at 19. The parties had agreed 

that the Sound meets the semicircle test and the states argued that that fact 

alone resolved the “landlocked waters” issue in its favor. The master 

disagreed, pointing to the Court’s ruling in the Louisiana Boundary Case that 

satisfaction of that test, by itself, does not ipso facto assure juridical bay 

status. 394 U.S. at 54. So the master applied two other tests. First he 

compared the total length of the Sound’s multiple mouths, approximately 

24 miles, to the maximum width of the Sound (the depth of penetration, in 

the language of Article 7) and calculated a ratio of “.4167 to 1.” This, he 

concluded, “is enough to constitute more than a mere curvature of the 

coast.” Report at 20.120 

Second, he looked to the work of Hodgson and Alexander. They had 

opined that “if a group of islands relate to the mouth of a bay so as to 

exceed in length more than 50% of the length of the bay closing line, the 

islands screen the mouth of the bay and form the natural limit for landlocked waters.”121 Again treating Dauphin Island as part of the mainland, 

and using it as the eastern headland of Mississippi Sound, the master found 

120. The conclusion is interesting in that one would expect to require a ratio of at least .5:1, the ratio of 

a semicircle which is a minimum area requirement. We note, also, that the 24-mile component of the fraction 

is based upon the master’s prior conclusion that Dauphin Island is to be treated as mainland. Absent that 

assumption the ratio would be even less and the closing line would exceed the Convention’s maximum length. 

121. Hodgson and Alexander, Towards an Objective Analysis of Special Circumstances, Occasional Paper No. 

13, Law of the Sea Institute, Univ. of Rhode Island, 1972, at 20. 

Part One 81 

that the barrier islands accounted for more than 50 percent of the distance 

between the mainland headlands. 

The master seems to have determined that Hodgson and Alexander 

support his conclusion. The connection is tenuous, if it exists at all. These 

renowned geographers were not, in the passage relied upon, setting out a 

test for determining whether a juridical bay exists. Rather, they were 

concerned with how to locate the mouths of an already established Article 

7 bay. The Supreme Court had already said that islands may form multiple 

mouths to a bay and if “a string of islands covers a large percentage of the 

distance between the mainland entrance points, the openings between the 

islands are distinct mouths outside of which the waters cannot sensibly be 

called ‘inland.’” Louisiana Boundary Case, 394 U.S. at 58. 

Drs. Hodgson and Alexander were proposing an objective test for 

determining when islands cover “a large percentage of the distance between 

the mainland entrance points.” The United States has always taken the 

position, and the Court has agreed, that under the Convention a bay is an 

indentation into the mainland. Yet the master seems to use the Hodgson 

and Alexander test to determine whether landlocked waters exist in the first 

instance, not merely whether islands form multiple mouths to an 

indentation into the mainland. 

After applying these tests the master purported to find support in a 1961 

memorandum from the Director, Coast and Geodetic Survey, Department 

of Commerce. He suggested that the memo “appears to have some bearing 

on this issue, stating at least by inference that where islands form a portico 

to the mainland and are so situated that the waters between them and the 

mainland are sufficiently enclosed to constitute inland waters, the coast line 

should embrace those islands. The barrier islands [off Alabama and 

Mississippi] do form such a portico . . . .” Report at 21. 

The master referred to the memo as having been “approved by the Court 

in another context.” Id. He did not mention that the context had been a 

consideration of what islands might be assimilated to the mainland, not 

whether a bay could be formed by islands. Louisiana Boundary Case, 394 

U.S. at 65-66 n.85. Nor did he mention that the memorandum had been 

written four years before the Supreme Court’s adoption of the Convention’s 

definitions to define the Submerged Lands Act’s coast line. When the Court 

“approved” the memorandum in 1969 it had long since rejected the idea 

that, under the Convention, islands that merely form a “portico to 

the mainland” create inland waters, except through the application of 

straight baselines. 

So we return to the master’s analysis of Dauphin Island, the conclusion 

upon which all of the master’s juridical bay conclusions depend. In fact, the 

foregoing discussion of Article 7 criteria is superfluous if the master is wrong 
82 Shore and Sea Boundaries 

as to the assimilation of Dauphin Island to the mainland. If Dauphin 

Island is an island, the gap between it and the actual mainland headland at 

Mobile Point brings the total of all closing lines, or mouths to the Sound, 

to more than 24 miles. The maximum allowed by Article 7(4) is exceeded. 

At most a 24-mile fallback line within the Sound is allowed. Dauphin 

Island’s “mainland” status is the foundation of the Article 7 reasoning. 

Recognizing Dauphin Island’s critical role, the master considered four 

bases upon which it might be considered part of the mainland. First he 

looked at its proximity to the mainland. The parties had stipulated that the 

water gap between Dauphin Island and the nearest mainland-upland, at 

Cedar Point, is 1.6 nautical miles. “While this is substantially less than the 

distance of any of the other barrier islands from the mainland, still it is 

considerably more than that of Isle au Pitre therefrom, and, I believe, more 

than was contemplated by the Court in . . . United States v. Louisiana, supra.” 

Report at 13, referring to 394 U.S. at 66. “In the other respects referred to 

in that language, Dauphin Island differs little if any from the other barrier 

islands.” Report at 13.122 

Next the master observed that Dauphin Island can be distinguished 

from the remainder of the barrier chain in that it is more densely populated. 

However, he concluded that “the degree of development of the island for 

human habitation and use seems to have no bearing upon the issue 

whatever. Many highly developed islands remain true islands and do not by 

being so developed become extensions of the mainland.” Report at 13. 

Third, he considered the fact that Dauphin Island is actually connected 

to the mainland by a bridge. There is no doubt that such a connection joins 

the two factually. But legally, the United States argued, it has no relevance. 

As precedent the government pointed to United States v. Florida, Number 52 

Original, in which the Florida Keys were not treated as mainland despite 

their connection by causeways and bridges. The master agreed, saying “the 

latter view seems to me to be sound, and I therefore find that the mere fact 

that it is connected to the mainland by a bridge or other artificial structure 

does not standing alone make Dauphin Island a part of the mainland.” 

Report at 13. This brought the master to the consideration upon which he 

based his determination as to Dauphin Island. 

“The fourth and final distinction” he said “between Dauphin Island and 

the other barrier islands appears to be unique and significant. Dauphin 

Island is directly in the mouth of Mobile Bay, which is admittedly a juridical 

bay.” Report at 14. In fact, he pointed out, the federal government’s 

122. The master had already noted that the other islands were “apparently conceded” not to be extensions 

of the mainland. Report at 12. The United States would agree that it is this water gap, and/or that between 

Mobile Point and Dauphin Island, to which the Supreme Court’s criteria should have been applied, rather than 

the closing line across the mouth of Mobile Bay, a point which we discuss below. 

Part One 83 

Baseline Committee had drawn the Mobile Bay closing line from Mobile 

Point on the east, to Dauphin Island and Little Dauphin Island, and then 

back to the mainland at Cedar Point. The master was not suggesting that 

the federal government had treated Dauphin Island as an extension of the 

mainland, which it had not, but that the United States had acknowledged 

that the island formed multiple mouths to Mobile Bay and, therefore, that 

“Dauphin Island at least touches upon . . . inland waters of the state of 

Alabama.” Report at 14. That is clearly true. 

But then came the jump that allowed all other pieces of the puzzle to 

fall into place. The master concluded that “there seems to be no doubt that 

under the Geneva Convention internal waters are to be subsumed under the 

general category of mainland. If this is correct, then Dauphin Island, as it 

adjoins the mainland, is clearly an extension thereof; in effect, a peninsula 

extending westwardly therefrom . . . .” Id. He then discussed the authorities 

quoted by the Supreme Court, and the Court’s own criteria for island 

assimilation. 

He quoted Boggs, as had the Court, who acknowledged that “some 

islands must be treated as if they were part of the mainland. The size of the 

island, however, cannot in itself serve as a criterion, as it must be considered 

in relationship to its shape, orientation and distance from the mainland.”123 

Pearcy was also quoted as saying “islands close to the shore may create some 

unique problems. They may be near, separated from the mainland by so 

little water that for all practical purposes the coast of the island is identified 

as that of the mainland.”124 

The 1961 Coast and Geodetic Survey memorandum mentioned above 

suggested that “the coast line should not depart from the mainland to 

embrace offshore islands, except where such islands either form a portico to 

the mainland and are so situated that the waters between them and the 

mainland are sufficiently enclosed to constitute inland waters, or they form 

an integral part of the land form.” Report at 15.125 

And Shalowitz was quoted as having said “with regard to determining 

which islands are part of a land form and which are not, no precise standard 

is possible. Each case must be individually considered within the 

framework of the principal rule.” Id. 

After quoting these authorities the special master concluded that “it 

would appear as a general rule derived from Article 7 Section 3 of the 

123. Boggs, Delimitation of Seaward Areas Under National Jurisdiction, 45 Am. J. Int’l L. 240, 258 (1951). 

Quoted by the Supreme Court at 394 U.S. at 65 n.85. 

124. Pearcy, Geographical Aspects of the Law of the Sea, 49 Annals of Assn. Of American Geographers No. 1, 

p. 1, at 9 (1959). Quoted by the Supreme Court at 394 U.S. at 65 n.85. 

125. Memorandum of April 18, 1961, excerpted in 1 Shalowitz, supra, at 161, n.125. 
84 Shore and Sea Boundaries 

Geneva Convention and the Court’s interpretation thereof in United States v. 

Louisiana, supra, (394 U.S. at p. 55) that where islands lie within the mouth 

of a bay they are to be considered as part of the mainland for all purposes.” 

Report at 16. We respectfully suggest that neither the authorities relied 

upon, the Supreme Court, nor the Convention supports that assertion. 

There is no suggestion that when Boggs referred to “mainland” he 

intended to encompass inland waters. Nor, apparently, did Pearcy. He 

spoke of islands close to the “shore.” The Convention does not equate 

“shore” with “coast line,” much less “inland waters.” Shalowitz does equate 

“shore” with “tidelands” and defines the latter as “the land that is covered 

and uncovered by the daily rise and fall of the tide. More specifically, it is 

the zone between the mean high-water line and the mean low-water line 

along a coast, and is commonly known as the ‘shore’ or ‘beach.’” 1 

Shalowitz, supra, at 318. 

If any doubt remained, Shalowitz referred to the relationship between 

islands and the land form, not the mainland, id. at 162, and conveniently 

included a diagram that emphasizes the relationship between the islands 

and nearby uplands, not inland waters. The master does not contend that 

the Convention or Court has subsumed internal waters under the general 

category of “land form.” The better reading of the authorities cited would 

seem to be that they had in mind the relationship between islands and 

other uplands, not inland waters. The Supreme Court certainly did not 

suggest otherwise. 

The Supreme Court’s treatment of the issue seems to show even more 

clearly that it does not equate inland waters with mainland. The master 

cites a single passage in the Louisiana decision. In so doing he attributes to 

the Supreme Court a conclusion that “where islands lie within the mouth 

of a bay they are to be considered part of the mainland [emphasis added] for 

all purposes [emphasis in Master’s Report].” Report at 16, citing to 394 U.S. 

at 55. In fact, the Court said “while the only stated relevance of such islands 

is to the semicircle test, it is clear that the lines across the various mouths are 

to be the baselines for all purposes [emphasis added].” 

The Court was not, in this passage, considering the status of islands. It 

was dealing with the multiple mouths of a bay that are created by islands in 

its entrance. Two points were at issue: how closing lines should be drawn 

to islands and whether any segment of multiple closing lines could lie 

landward of a direct line between the mainland headlands.126 In resolving 

126. Louisiana, in an effort to push inland waters as far seaward as possible, contended that closing lines 

should be drawn to the seaward points on islands, not natural entrance points that served to enclose 

landlocked waters, and that no portion of such lines should lie landward of a line connecting mainland 

headlands. 

Part One 85 

these issues in favor of the United States the Court never hinted that islands 

within the mouth of a bay are to be treated as mainland.127 

To the contrary, the Court clearly distinguished between islands and 

mainland throughout that discussion. In stating the second issue for 

resolution it asked “should the lines be drawn landward of a direct line 

between the entrance points on the mainland?” Id. at 55. If islands were 

included within its reference to mainland there would have been no issue. 

In determining that termini on islands would be located using the same 

principles as are employed for mainland entrance points, the Court said 

“there is no suggestion in the Convention that a mouth caused by islands is 

to be located in a manner any different from a mouth between points on 

the mainland . . . .” Id. at 56. Again, islands were distinguished from 

mainland. 

In dealing with a particular example, the Court explained that “the 

‘natural entrance points’ may, and in some instances . . . do, coincide with 

the outermost edges of islands. But there is no automatic correlation, and 

the headlands must be selected according to the same principles that govern 

the location of entrance points on the mainland.” Id. Later the Court 

referred to “an island which is intersected by a direct mainland-to-mainland 

closing line.” Id. at 59. The discussion relied upon by the master never 

suggested that islands in the mouth of a bay are to be considered as part of 

the mainland. 

Another section of the Court’s Louisiana decision makes equally clear 

that the Court does not consider islands in the mouth of a bay to be part of 

the mainland. The Barataria-Caminada Bay complex, just west of the 

Mississippi delta, qualifies as inland waters under Article 7 and is fronted by 

barrier islands. Under the master’s reasoning the islands would be 

mainland because they adjoin those inland waters. But Louisiana argued 

that an even more seaward area, which it denominated “Ascension Bay,” 

qualified as an overlarge bay. To qualify, Ascension Bay had to be shown to 

meet the semicircle test. The Court ruled that it did, by including the area 

of Barataria-Caminada. That could be done, it reasoned, because “those 

inner bays are separated from the larger ‘Ascension Bay’ only by the string of 

islands across their entrances [emphasis added].” 394 U.S. at 52. It 

concluded that under the Convention those islands were to be treated as 

water area. Id. at 53. If the islands had been treated as mainland, Ascension 

Bay would not have qualified.128 

127. The only explanation that we can see for this misinterpretation of the Court’s position is that it did 

conclude that headlands on islands would be located in the same fashion as they are on the mainland. 

128. The same master who heard the Mississippi Sound case must have agreed with the Court’s 

understanding. He recommended, despite federal objections on other grounds, that Ascension Bay is an 

overlarge bay. United States v. Louisiana, Report of the Special Master of July 31, 1974, at 45-46. 
86 Shore and Sea Boundaries 

Nor does the Convention provide any support for the master’s 

conclusion. If, as the master reasons, any island that touches inland water 

becomes, as a matter of law, part of the mainland, the final sentence of 

Article 7(3) becomes meaningless. It provides that, for purposes of the 

semicircle test, “islands within an indentation shall be included as if they 

were part of the water area of the indentation.” The provision was included 

to assure that islands within an indentation would not reduce its chances of 

meeting the semicircle test. The master’s reasoning would produce a 

directly contrary result. Islands within the inland waters of a bay would be 

treated as mainland and not available for water measurement. Article 7(3) 

clearly does not treat islands within inland water as part of the mainland. 

Having concluded that the Convention and the Court treat inland 

waters as part of the mainland, the master went through what would seem 

to be a pro forma exercise of applying the Court’s five tests for island 

assimilation: size, distance from the mainland, depth and utility of 

intervening waters, shape and relationship to the configuration of the 

mainland. Given the premise that Dauphin Island is in direct contact with 

the “mainland” (i.e., inland waters) it would seem impossible to fail the 

tests. Its size would seem to be irrelevant; a peninsula extending from the 

mainland, as the master described it, would be part of the mainland 

whatever its size. Dauphin Island, by the master’s definition, was within no 

distance of the mainland. Nor were there “intervening waters” between it 

and Mobile Bay. The master pointed out, as to shape, that it appears to be 

an elongation of Mobile Point and “the two appear to have been connected 

in the Holocene era.” Report at 17. The significance of the island’s relation 

to Mobile Point is not immediately obvious. The adjacent inland waters are 

the “mainland” to which it is said to be assimilated. Because they abut one 

another, shape would not seem to be a factor. Finally, the master decided 

that “the configuration of Dauphin Island follows the curvature of the 

shoreline, with the exception of the projection of Cedar Point.” Id. Again, 

reference to the true mainland seems irrelevant given the presumption that 

got us to this point, that is that inland waters are the “mainland.” Dauphin 

Island and the adjacent inland waters of Mobile have identical 

configurations. 

But none of these concerns creates the “curiosity” referred to in the 

beginning of our discussion. That comes about when one compares the 

master’s positions on this issue in the Louisiana Boundary Case. 

Like Alabama and Mississippi, Louisiana has numerous islands 

scattered along its coast. In many cases it argued that those islands should 

be assimilated to the mainland. Often the United States agreed that an 

indentation into the mainland qualified as a juridical bay but opposed the 

state’s attempts to move a closing line seaward by assimilating offshore 

Part One 87 

islands to the mainland. According to Special Master Armstrong’s 

characterization of Louisiana’s position, with which we agree, Louisiana 

insisted that “once the closing line conceded by the United States is drawn, 

the waters within that closing line become inland waters and therefore 

constitute a part of the mainland, and that the relationship of the remaining 

islands to those inland waters therefore is in reality a relationship to the 

mainland which is sufficient to constitute them an extension thereof.” The 

position is identical to that espoused by Alabama and Mississippi and 

adopted by the master at Dauphin Island. But in the Louisiana Boundary 

Case he responded by holding that “while for some purposes inland waters 

may be considered a part of the mainland, they are nevertheless waters and 

not land, and therefore land bodies lying adjacent to them are not 

assimilable to them as such, but retain their characteristics as islands.” 

Report of July 31, 1974, at 43. It is clear that in so ruling the master 

considered himself to be following the Court’s lead. He stated that “it 

seems apparent that when in its opinion the Court used the term 

‘mainland,’ it used it to refer to an existing body of land and not to inland 

waters.” Id. at 42. 

Compare his conclusions in the Mississippi Sound case, beginning with 

“there seems to be no doubt that under the Geneva Convention internal 

waters are to be subsumed under the general category of mainland;” Report 

of April 9, 1984, at 14, “if my reasoning is correct, and inland waters are to 

be considered part of the mainland, then Dauphin Island is ‘near, separated 

from the mainland by so little water that for all practical purposes the coast 

of the island is identified as that of the mainland,’” and “it would appear as 

a general rule derived from the Court’s interpretation thereof in United States 

v. Louisiana, supra, (394 U.S. at p. 55) that where islands lie within the 

mouth of a bay they are to be considered as part of the mainland for all 

purposes.” Id. at 15-16. 

The apparent discrepancy was, of course, brought to the attention of the 

special master whose response was to note in his Report that “I am fully 

aware of the Court’s language in United States v. Louisiana, supra, which I 

previously interpreted as precluding such a holding in the case of islands in 

the Caillou Bay area. However, I believe that the factual situation here 

differs materially, basically because Dauphin Island lies in the mouth of 

Mobile Bay which is indisputably inland waters.” Id. at 18. 

The Caillou Bay example is certainly distinguishable. The question 

there was whether the western Isles Dernieres could form a bay where no 

indentation in the coast line existed but for the existence of those islands. 

But it was not in Caillou Bay that the special master faced the same issue 

that he dealt with 10 years later at Dauphin Island. It was his consideration 

of Redfish Bay that produced the language quoted above. A juridical bay 
88 Shore and Sea Boundaries 

existed within Redfish Bay, as it did in Mobile Bay, without the presence of 

islands. In both cases the states argued that those admitted bays should be 

treated as mainland for purposes of assimilating nearby islands. In 

Louisiana the master was clear — inland waters are not “mainland” for 

purposes of island assimilation. In Alabama and Mississippi he was just as 

clear — inland waters are mainland. 

In the Louisiana Boundary Case the Supreme Court adopted all of its 

master’s recommendations without comment, including the finding that 

inland waters are not “mainland” for this purpose. In the Alabama and 

Mississippi Boundary Cases the United States took strong exception to his 

opposite conclusion. 

Because the Court accepted the master’s third finding, that Mississippi 

Sound constitutes historic inland waters, it did not have to comment on his 

recommended ruling as to Dauphin Island. On two occasions, however, the 

Court made clear that it was not adopting the master’s recommendation or 

ruling on the juridical bay claim. First it said “we therefore need not, and 

do not, address the exceptions presented by . . . the United States that relate 

to the question of whether Mississippi Sound qualifies as a juridical bay 

under Article 7 of the Convention.” Alabama and Mississippi Boundary Cases, 

470 U.S. 93, 101 (1985). And later, “we repeat that we do not address the 

exceptions . . . of the United States that relate to the question whether 

Mississippi Sound qualifies as a juridical bay.” Id. at 115. 

With this, we turn to the issue upon which the Court did base its ruling 

favorable to the states. 

Historic Bay 

The states’ third, and successful, contention was that Mississippi Sound 

is historic inland waters. Historic waters are not defined in the Convention 

on the Territorial Sea and the Contiguous Zone, but are recognized as an 

exception to its principles for delimiting inland waters. Article 7(6) states 

that “the foregoing provisions shall not apply to so-called ‘historic’ bays.”129 

The Supreme Court had considered historic bay claims in prior 

tidelands cases and defined them as bays “over which a coastal nation has 

traditionally asserted and maintained dominion with the acquiescence of 

foreign nations.”130 It described three factors relevant to historic water 

129. The Supreme Court has never had to consider how “bay-like” a water body must be to qualify for 

consideration as a historic bay. However, in the Louisiana Boundary Case it noted that “under the terms of the 

Convention, historic bays need not conform to the normal geographic tests and therefore need not be true 

bays. How unlike a true bay a body of water can be and still qualify as a historic bay we need not decide, for 

all of the areas of the Mississippi River Delta which Louisiana claims to be historic inland waters are 

indentations sufficiently resembling bays that they would clearly qualify under Article 7(6) if historic title can 

be proved.” 394 U.S. at 75 n.100. Although the United States disputed that Mississippi Sound is a juridical 

bay, it did not deny that the Sound is sufficiently “bay-like” to be considered a historic bay if historic title could 

be proven. 

130. See: United States v. California, 381 U.S. 139, 172 (1965); United States v. Alaska, 422 U.S. 184, 189 

(1975); and Louisiana Boundary Case, 394 U.S. 11, 23 (1969). 

Part One 89 

determination, including: (1) exercise of authority by the claiming nation, 

(2) continuity of that exercise, and (3) the acquiescence of foreign nations. 

United States v. Alaska, 422 U.S. 184, 189 (1975) and Louisiana Boundary 

Case, 394 U.S. 11, 23-24 n.27 (1969). Put another way, “the coastal State 

must have effectively exercised sovereignty over the area continuously 

during a time sufficient to create a usage and to have done so under the 

general toleration of the community of States.” Juridical Regime of Historic 

Waters, Including Historic Bays 56, U.N. Doc. A/CN.4.143 (1962). 

Special Master Armstrong and the Court applied those criteria to 

Mississippi Sound, and looked also to an additional factor. As the Court 

said, “there is substantial agreement that a fourth factor to be taken into 

consideration is the vital interests of the coastal nation, including elements 

such as geographical configuration, economic interests, and the 

requirements of self-defense.” Alabama and Mississippi Boundary Cases, 470 

U.S. at 102.131 

The special master found that Mississippi Sound met all of these criteria 

and held it to be historic inland water. Alabama and Mississippi Boundary 

Cases, Report of the Special Master of April 9, 1984, at 54. The federal 

government took exception to that holding. 

Interestingly, the Supreme Court first considered the “fourth” factor, 

vital interests, before reviewing evidence of a claim, continuity and 

acquiescence. It traced federal interest in the sound from the early 19th 

century. Mississippi Sound was then recognized as “an inland waterway of 

importance for commerce, communications, and defense.” 470 U.S. at 103. 

As early as 1817 Congress considered improvements in the Sound “to afford 

the advantages of internal navigation and intercourse throughout the 

United States and its Territories.” Id. quoting H.R. Doc. No. 427, 14th 

Cong., 2nd Sess. (1817). “This project ultimately became the Intracoastal 

Waterway through Mississippi Sound.” Id. A White House Committee on 

Military Affairs referred to the Sound as “the little interior sea” in 1820. 

H.R. Rep. No. 51, 17thCong., 1st Sess., 7. By 1847 Ship Island, an island that 

helps to form the Sound, had been reserved for military purposes and by the 

start of the Civil War a 48-cannon fort had been constructed on the island. 

470 U.S. 104-105. 

In contrast, the Court pointed out, the Sound has been of little 

importance to foreign nations. “The Sound is shallow, ranging in depth 

generally from 1 to 18 feet except for artificially maintained channels . . . . 

Outside those channels, it is not readily navigable for oceangoing vessels. 

Furthermore, it is a cul de sac, and there is no reason for an oceangoing 

vessel to enter the Sound except to reach the Gulf ports.” Id. at 102-103. It 

131. In support of its statement the Court cited the Juridical Regime, at 38, 56-58; I Shalowitz, supra, at 

48-49 and the Fisheries Case (U.K. v. Norway), [1951] I.C.J. Rep.116, 142. 
90 Shore and Sea Boundaries 

concluded that “the historic importance of Mississippi Sound to vital 

interests of the United States, and the corresponding insignificance of the 

Sound to the interests of foreign nations, lend support to the view that 

Mississippi Sound constitutes inland waters.” Id. at 103.132 

The Court then applied the original factors for historic water status. 

It pointed to two specific examples of federal assertions of jurisdiction 

over the sound in the 1900s. First, however, it recited a federal policy of 

“enclosing as inland waters those areas between the mainland and off-lying 

islands that were so closely grouped that no entrance exceeded 10 

geographical miles.” Id. at 106. Citing to the special master’s findings, the 

Court found that the United States “confirmed this policy in a number of 

official communications” from 1951 to 1961. 470 U.S. at 106, n.9.133 

The master and the Supreme Court concluded that the 10-mile rule had 

been employed since the beginning of the 20th century and, according to the 

Court, “represented the publicly stated policy of the United States at least 

since the time of the Alaska Boundary Arbitration in 1903. There is no 

doubt,” it continued, “that foreign nations were aware that the United States 

had adopted this policy . . . . Nor is there any doubt that Mississippi Sound 

constitutes inland water under that view.” Id. at 107.134 

The United States argued that its adoption of principles for “juridical 

bay” delimitation, which had since been superceded, are not a “sufficiently 

specific claim to the Sound . . . to establish it as a historic bay.” Id. But the 

Court countered that in this case “the general principles in fact were coupled 

with specific assertions of the status of the Sound as inland waters.” 

132. The Court cited similar reasoning in United States Attorney General Edmund Randolph’s opinion 

that Delaware Bay is historic inland water. Randolph had said, among other things, that “these remarks may 

be enforced by asking, What nation can be injured in its rights by the Delaware being appropriated to the 

United States? And to what degree may not the United States be injured, on the contrary ground? It 

communicates with no foreign dominion; no foreign nation has ever before had a community of right in it, as 

if it were a main sea; under the former and present governments, the exclusive jurisdiction has been asserted.” 

Id. at 103 n.4, quoting 1 Op. Atty. Gen. 32, 37 (1793). [Since the adoption of 24-mile bay closing lines in the 

1958 Convention, Delaware Bay is also an Article 7 juridical bay.] 

133. These statements are found in a State Department response to the attorney general’s request for 

assistance in preparing a federal position for tidelands litigation, Report of the Special Master at 48; the United 

States’ position at the 1930 Hague Conference on the Codification of International Law, id. at 49-50; a second 

State Department letter, commenting on the Anglo-Norwegian Fisheries decision, id. at 51-52; State 

Department testimony before Congress on what would become the Submerged Lands Act, id. at 52; and Coast 

and Geodetic Survey comments to the Solicitor General. Id. 

134. The State of Alaska relied heavily on this holding in United States v. Alaska, No. 84 Original. 

Although it was not making a historic waters claim, Alaska contended that this “long standing policy” 

amounted to the United States’ adoption of a system of straight baselines which could not now be withdrawn 

to the state’s detriment. The federal government countered that regardless of Special Master Armstrong’s 

conclusion, and the Court’s comments, the United States had had no consistent policy of creating inland waters 

with 10-mile lines between islands from 1903 until adoption of the Convention on the Territorial Sea. Special 

Master Mann thoroughly reviewed United States foreign policy for that period and agreed with the federal 

position. United States v. Alaska, Report of the Special Master of March 1996, at 52-141. The Supreme Court 

agreed. 521 U.S. 1, 19 (1997). 

Part One 91 

The Court gave three examples. It noted that in 1906 the Supreme 

Court had resolved a boundary dispute between Louisiana and Mississippi 

in Lake Borgne and Mississippi Sound. Louisiana v. Mississippi, 202 U.S. 1 

(1906). In so doing the Court not only described the Sound as “an enclosed 

arm of the sea, wholly within the United States,” id. at 48, but the Court 

applied the “thalweg” doctrine to determine the exact location of the states’ 

common boundary. The doctrine, which defines a water boundary as the 

“deepest or most navigable channel” (as distinguished from a geographic 

equidistant line), is applicable to inland waters. And, despite the fact that 

the Court did not specifically hold that Mississippi Sound is inland waters, 

it said 85 years later that “the Court’s [1906] conclusion that the Sound is 

inland waters was essential to its ruling that the doctrine of thalweg was 

applicable.” 470 U.S. at 108. 

The federal government went on to argue in 1985 that it was not a party 

to the 1906 controversy and could not, therefore, be bound by the holding. 

The Court was not influenced, pointing out that “the significance of the 

holding for the present case . . . is not its effect as precedent in domestic law, 

but rather its effect on foreign nations that would be put on notice by the 

decision that the United States considered Mississippi Sound to be inland 

waters.” Id. 

The Court then cited a second federal expression of title to Mississippi 

Sound. In a 1958 brief filed in the original Louisiana case, the federal 

government stated that “we need not consider whether the language, 

‘including the islands’ etc., would of itself include the water area intervening 

between the islands and the mainland (although we believe it would not), 

because it happens that all the water so situated in Mississippi is in 

Mississippi Sound, which this Court has described as inland water. 

Louisiana v. Mississippi, 202 U.S. 1, 48.” 470 U.S. at 109. And the United 

States went on, in that brief, to concede that “the water between the islands 

and the Alabama mainland is inland water.” Id.135 The Supreme Court 

concluded that “if foreign nations retained any doubt after Louisiana v. 

Mississippi that the official policy of the United States was to recognize 

Mississippi Sound as inland waters, that doubt must have been eliminated 

by the unequivocal declaration of the inland water status of Mississippi 

Sound by the United States in an earlier phase of this very litigation.” Id. at 

108-109. 

135. Again the government argued that it should not be disadvantaged by the 1958 statement, which was 

based on the assumption that pre-Convention principles would be used to delimit a pre-Convention 

(Submerged Lands Act) boundary, especially because the Court had itself determined that the United States 

would not be bound by a similar concession along the Louisiana coast. See: Louisiana Boundary Case, 394 U.S. 

11, 73-74 n.97 (1969). But the Court handled this argument as it had the contention that the federal 

government should not be bound by the holding in Louisiana v. Mississippi, saying “the significance of the 

United States’ concession in 1958 is not that it had binding effect in domestic law, but that it represents a public 

acknowledgment of the official view that Mississippi Sound constitutes inland waters of the nation. 470 U.S. 

at 110. 
92 Shore and Sea Boundaries 

The federal government contended that a claim alone is not sufficient to 

establish historic title; that inland water status must be enforced for title to 

ripen. Thus, it argued, to establish historic inland waters there must be 

evidence that the claimant nation has prevented the innocent passage of 

foreign vessels. The Court seemed impatient with the contention, ruling 

that “this rigid view of the requirements for establishing historic inlandwater status is unrealistic and is supported neither by the Court’s precedents 

nor by writers on international law.” Id. at 113.136 

It found support in the United Nations’ study of historic waters, which 

provides that the required exercise of authority “does not, however, imply 

that the State necessarily must have undertaken concrete action to enforce 

its relevant laws and regulations within or with respect to the area claimed. 

It is not impossible that these laws and regulations were respected without 

the State having to resort to particular acts of enforcement. It is, however, 

essential that, to the extent that action on the part of the State and its organs 

was necessary to maintain authority over the area, such action was 

undertaken.” Juridical Regime, supra, at 43. Quoted at 470 U.S. at 114.137 

The Supreme Court includes no discussion of the second element of 

historic water status, “continuity,” in its decision in the case but its other 

holdings probably make that unnecessary. As noted, the Court held that its 

own 1906 ruling in Louisiana v. Mississippi, 202 U.S. 1, put the world on 

notice of a United States claim to the sound. That claim was presumably 

supported by what the Court then described as the publicly stated policy “of 

136. To that comment the Court appended a footnote to distinguish a prior decision. It said “In United 

States v. Alaska, 422 U.S. 184, 197 (1975), the Court noted that to establish historic title to a body of water as 

inland waters, ‘the exercise of sovereignty must have been, historically, an assertion of power to exclude all 

foreign vessels and navigation.’ It is clear, however, that a nation can assert power to exclude foreign navigation 

in ways other than by actual resort to the use of that power in specific instances.” 470 U.S. at 113 n.13. 

137. Having found two specific assertions of jurisdiction the Court never returned to the federal 

government’s concern that outdated juridical bay principles were being employed as support for historic waters 

claims. A related question arose in the Louisiana Boundary Case when headlands to a juridical bay within East 

Bay disappeared over time. As a result, the interior area no longer met the requirements of Article 7. The state 

argued that because the waters were once inland “it obtained certain vested rights in the area landward of that 

line of which it cannot now be dispossessed.” Louisiana Boundary Case, Report of the Special Master of July 31, 

1974, at 34. The master disagreed, reasoning that “if this were the case, its shoreline would be fixed at the 

furthest extent to which it ever projected, which would be contrary to the concept of an ambulatory shoreline.” 

Id. The Court adopted the master’s findings. Louisiana Boundary Case, 420 U.S. 529 (1975). 

A similar controversy arose recently in Alaska. Kotzebue Sound, near the northwest corner of the state, 

is an overlarge bay. For many years the 24-mile fallback line ran from Cape Espenberg to the vicinity of 

Kotzebue. Then erosion widened that gap to just more than 24 miles. The sound still met all other 

requirements of Article 7 but the federal Baseline Committee amended its charts. A more landward 24-mile 

fallback line within the Sound now depicts the seaward limit of its inland waters. 

Alaska unsuccessfully petitioned the Committee to return the closing line to its original location. The 

issue has not been litigated but it would seem to be covered by the Court’s statement that “any line drawn by 

application of the rules of the Convention on the Territorial Sea and the Contiguous Zone would be 

ambulatory and would vary with the frequent changes in the shoreline.” Louisiana Boundary Case, 394 U.S. 11, 

32 (1969). 

That is not quite the same as ruling that long-standing juridical bay status may not support a historic 

bay claim. That issue is yet to be litigated. 

Part One 93 

enclosing as inland waters those areas between the mainland and off-lying 

islands that were so closely grouped that no entrance exceeded 10 

geographical miles.” 470 U.S. at 106. The Court specifically held that the 

United States did not withdraw its claim until the first publication of the 

Baseline Committee charts in 1971. Id. at 111. 

The Court’s findings indicate that the United States’ claim continued for 

at least 68 years. The government did not contend that the span was 

insufficient to constitute a “usage.” 

The United States did argue that no evidence existed of foreign 

acquiescence in any claim to Mississippi Sound. The parties agreed that “no 

foreign government ever protested the United States’ claim.” Id. at 110. In 

United States v. Alaska, 422 U.S. 184 (1975), the Court ruled that a failure of 

foreign nations to object to a claim is not evidence of acquiescence unless it 

can be shown that they knew, or should have known, of the claim. 

Nevertheless, “there is substantial agreement,” it later said, “that when 

foreign governments do know or have reason to know of the effective and 

continual exercise of sovereignty over a maritime area, inaction or toleration 

on the part of the foreign governments is sufficient to permit a historic title 

to arise.” 470 U.S. at 110, citing Juridical Regime at 48-49. “Moreover, it is 

necessary to prove only open and public exercise of sovereignty, not actual 

knowledge by foreign governments.” 470 U.S. at 110. With respect to 

Mississippi Sound it reasoned “the United States publicly and 

unequivocally stated that it considered Mississippi Sound to be inland 

waters. We conclude that under these circumstances the failure of foreign 

governments to protest is sufficient proof of acquiescence or toleration 

necessary to historic title.” Id. at 110-111. 

Finally, the federal government argued that historic title to Mississippi 

Sound had been disclaimed by the United States. The 1971 Baseline 

Committee charts, which were distributed to foreign governments 

requesting information on the location of our maritime boundaries, 

showed the waters of Mississippi Sound to be territorial and high seas rather 

than inland. But, the Court said, the disclaimer came too late. It had 

previously warned that federal disclaimers would not be given dispositive 

weight in all circumstances, and that “a contraction of a State’s recognized 

territory imposed by the Federal Government in the name of foreign policy 

would be highly questionable.” United States v. California, 381 U.S. 139, 168 

(1965). The Court quoted with approval its master’s statement that the 

disclaimer here “would appear to be more in the nature of an attempt by the 

United States to prevent recognition of any pre-existing historic title which 

might already have ripened because of past events . . . .” Report at 47. It 

went on to conclude that “historic title to Mississippi Sound as inland 

waters had ripened prior to the United States’ . . . disclaimer of the inlandwater status of the Sound in 1971.” 470 U.S. at 112. 
94 Shore and Sea Boundaries 

In sum, the Supreme Court adopted Special Master Armstrong’s 

recommendation that Mississippi Sound is historic inland waters. The 

decision is notable as the only occasion upon which the Court accepted a 

state’s historic inland water claim.138 It had rejected similar claims from 

Alaska, California, Louisiana, Florida, and Massachusetts. 

United States v. Maine 

In 1947 the Supreme Court ruled that California entered the Union 

with no rights in the submerged lands seaward of its coast line. United States 

v. California, 332 U.S. 19 (1947). That decision was based specifically on 

the Court’s determination that the original 13 states had no such rights and 

California entered on an equal footing. But the original 13 states had not 

been a party to the California case and continued to claim rights under their 

royal charters even more than 3 miles offshore.139 In 1968 the federal 

government filed suit in the Supreme Court to establish its paramount right 

to areas seaward of the congressional 3-mile grant. 

The Court appointed the Honorable Albert B. Maris as special master. 

Judge Maris held extensive hearings. His Report and the Court’s subsequent 

decision adopting his recommendations are discussed above. To greatly 

summarize that discussion, the Court reaffirmed that it had meant what it 

said in California. That is, the original states entered the Union without 

offshore claims. Their rights in the sea are limited to the Submerged Lands 

Act grant of 3 nautical miles from the coast line. United States v. Maine, 420 

U.S. 515 (1975). 

The litigation, however, made no attempt to define the coast line and 

three of the original states have since sought to have portions of their coast 

lines established. 

The Massachusetts Boundary Case 

Massachusetts and the federal government could not agree on whether 

a number of water bodies are inland or, if inland, where their closing lines 

are located. In 1977 they asked the Supreme Court to resolve their 

differences. The Honorable Walter E. Hoffman was appointed special 

138. Massachusetts’ historic water claim to Vineyard Sound was upheld by Special Master Walter E. 

Hoffman but the United States did not take exception to that recommendation. The master recommended 

against historic water status for Nantucket Sound. The state excepted to that recommendation but the Court 

adopted it nevertheless. Massachusetts Boundary Case, 475 U.S. 89 (1986). 

139. Since the first California decision the Submerged Lands Act had been passed, giving each of the states 

bordering on the Atlantic a 3-mile belt of submerged lands and the natural resources therein. 43 U.S.C. 

1301 et seq. 

Part One 95 

master. He took evidence and heard arguments on the status of two areas, 

Vineyard and Nantucket Sounds.140 

Nantucket Sound lies south of Cape Cod and is formed by the Cape and 

the islands of Martha’s Vineyard and Nantucket. Vineyard Sound lies to its 

west and is formed by the Elizabeth Islands on the north and Martha’s 

Vineyard on the south. (Figure 13) The federal government claimed that 

neither body is inland waters and that the state’s Submerged Lands Act 

rights in each are to be measured 3 miles seaward of any island and the 

mainland. The state claimed that they are both inland and its coast line 

includes straight lines running from the outermost of the Elizabeth Islands 

to Martha’s Vineyard, then to Nantucket Island, and finally back to 

Monomoy Island on the southeast corner of Cape Cod.141 

Figure 13. Vineyard and Nantucket Sounds, south of Cape Cod, Massachusetts. 

(Based on NOAA Chart 13200) 

140. The parties had, in the meantime, agreed on closing lines at the mouths of Buzzards Bay and 

Massachusetts Bay. Those lines were incorporated in a supplemental decree of the Court. United States v. Maine, 

452 U.S. 429 (1981). 

141. Because Vineyard Sound is less than 6 miles wide it is entirely within the state’s Submerged Lands 

Act grant. At issue were only about 1000 acres of submerged lands seaward of Massachusetts’ claimed closing 

line at its western end. Nantucket Sound, however, has an entrance of more than 6 miles width on the east and 

a substantial core which is more than 3 nautical miles from any land. 
96 Shore and Sea Boundaries 

Massachusetts did not contend that either Sound is a juridical bay, 

under Article 7 of the Convention, nor enclosed by straight baselines, under 

Article 4. Rather, it claimed that the Sounds are inland under the “historic 

waters” exception to the usual requirements of Article 7, or are held under 

the closely related doctrine of “ancient title.” 

Historic title is discussed above with respect to the Alabama and 

Mississippi Boundary Cases and has been asserted in many other tidelands 

cases. As the Supreme Court has often announced, historic waters are those 

over which a coastal nation has “traditionally asserted and maintained 

dominion with the acquiescence of foreign nations.” United States v. 

California, 381 U.S. 139, 172 (1965). In evaluating historic waters claims 

the Court has applied criteria set out in the United Nations’ Juridical Regime 

of Historic Waters, 2 Y.B. Int’l Law Comm’n U.N. Doc. A/CN.4/143 (1962). 

But the Juridical Regime also recognizes the alternative doctrine of 

“ancient title.” As the special master stated, it can apply “only to the 

acquisition of territories which international law considers terra nullius, land 

currently having no sovereign but susceptible to sovereignty. [citing Juridical 

Regime at 12] Applied to waters normally considered to be high seas, a claim 

of ancient title means that a state must affirm ‘that the occupation took 

place before the freedom of the high seas became part of international law. 

In that case, the State would claim acquisition of the area by an occupation 

which took place long ago. Strictly speaking, the State would, however, not 

assert a historic title, but an ancient title based on occupation as an original 

mode of acquisition of territory.’” Massachusetts Boundary Case, Report of the 

Special Master of October Term 1984, at 25. Quoting Juridical Regime at 

paragraph 71. In other words, “effective occupation, from a time prior to 

the victory of the doctrine of freedom of the seas, suffices to establish a valid 

claim to a body of water under ancient title.” Report at 25-26. The master 

concluded that ancient title is an appropriate option to the traditional 

historic waters claim. Id. at 27. 

Massachusetts supported its claims with three arguments. First, it 

contended that Nantucket and Vineyard Sounds were inland water of the 

British Crown prior to independence and the state succeeded to that 

interest. Second, it said that the Sounds were central to the development of 

the colonial economies of Martha’s Vineyard and Nantucket Island. Finally, 

as to Vineyard Sound, it introduced early legislative assertions of sovereignty 

to which foreign nations did not object. 

The state’s contention that both Sounds were inland water (technically 

“county waters”) during British dominion prompted a thorough review of 

English law of the sea practice first by the parties and again by the special 

master in his Report to the Court. One question before the master was the 

nature of English claims to jurisdiction in 1664 and 1691, at the time of 

Part One 97 

Royal Charters conveying what is now Massachusetts. The analysis began 

with a discussion of British maritime claims, especially in the 17th century. 

It happens that interests in the sea were at a peak in the 17th century, 

with various maritime powers promoting jurisdictional theories that best 

reflected their particular interests. English law on the subject was in a state 

of flux. Prior to the ascendency of the Stuarts in 1603, England did not 

recognize property rights or jurisdictional claims beyond the coastline (or 

county waters). The Queen v. Keyn, [1876-77] L.R. 2 Exch. Div. 63, 67. 

But, under the Stuarts, Crown claims expanded. James I (1603-1625) 

claimed jurisdiction over what were denominated the “King’s Chambers,” 

areas of high seas adjacent to the English coast delimited by a series of 

straight lines connecting mainland headlands. Fulton, The Sovereignty of the 

Sea, (1911), at 120-122. Interestingly, the King’s Chambers were not a 

proprietary claim but the creation of a “neutral zone” in which foreign ships 

were prohibited from engaging in combat. However, a proprietary interest 

was claimed to high seas fishing grounds in the North Sea. Charles I (1625-

1649) added, for the first time, a claim to a maritime belt around the British 

Isles known as the “narrow” or “English” seas. Report at 29. 

A scholarly debate was conducted that influenced the development of 

the law of the sea well into the future. In 1609 Hugo Grotius (employed by 

the Dutch government) published his Mare Liberum (The Free [open] Sea). 

Grotius, whose interest it was to encourage a minimum of interference with 

navigation, contended that the seas are open to all. The English rebuttal 

came in 1635 in the form of John Selden’s Mare Clausum [The Closed Sea]. 

Charles I had requested the work to defend “the claims of the English 

Crown to sovereignty over the seas.” Id. at 30. 

However, the English position did not survive the 17th century. As 

Special Master Maris had found in the original United States v. Maine 

proceedings, and Judge Hoffman acknowledged, “with the fall of James II in 

1688, English law returned to the pre-Stuart pattern of full sovereignty coextensive with county boundaries . . . .” Report at 30.142 Because the Stuarts’ 

pretensions of proprietary rights in the high seas had been long abandoned 

by the American independence, they could provide no foundation for 

Massachusetts’ claim to waters beyond the boundaries of an English county. 

That fact prompted the question, what were the limits of an English 

county under the common law of the day?143 The easy answer is that 

counties included uplands to the coast and waters that were inter fauces 

142. By 1667 Sir Mathew Hale had published De Jure Maris [Of the Law of the Sea] which, while 

purporting to support the Stuart claims, clearly retreated from their more extreme positions. Report at 30. 

143. Waters under county jurisdiction, where common law was applied, had not expanded during the 

Stuarts’ reign. Their novel high seas proprietary claims extended beyond the counties and fell within the 

jurisdiction of the Admiralty courts. Report at 30. 
98 Shore and Sea Boundaries 

terrae.

144 But what waters met that requirement? Two eminent English 

authorities considered the question and two tests evolved. Both considered 

the distance between the two headlands that form the indentation. 

Lord Coke took the more restrictive view. He understood that waters lay 

within the county if a person “standing on one side of the land may see 

what is done on the other.” Coke, Fourth Institute, cap. 22, 140; quoted at 

Report at 44. The test is said to be supported by the logic that to perform 

his job the sheriff or coroner must be able to distinguish human activity. 

Lord Hale, on the other hand, interpreted the requirement more 

liberally. He wrote that “that arm of the sea, which lies within the fauces 

terrae, where a man may reasonably discern between shore and shore, is, or 

at least may be, within the body of a county.” M. Hale, De Jure Maris C.4; 

quoted at Report at 45. 

If Vineyard and Nantucket Sounds met the appropriate test, reasoned 

Massachusetts, they would have been included in the 1664 and 1691 

Charter grants and eventually devolved to the state at independence. But 

which test should be adopted for our purposes? Nantucket and Vineyard 

Sounds have mouths just wide enough that the choice of tests might make 

a difference. Massachusetts supported the more expansive Hale description, 

requiring only that one be able to see the opposing shore. That, it argued, 

was the accepted English rule when the charters were written.145 The federal 

government urged the Coke interpretation because it had been adopted by 

American courts.146 

The master opted for Hale’s more expansive version for purposes of 

interpreting the English charters, but recommended Coke’s test for noncharter-based claims. Whether the distinction made any difference in the 

end is difficult to tell. It certainly did not for Vineyard Sound. With a 

mouth of less than 6 nautical miles the special master found that it 

qualified under either test. There is no doubt that anyone can see the land 

forms from Gay Head on Martha’s Vineyard to the northern headland on 

Cuttyhunk Island. Report at 47. More questionable is the ability to 

recognize individuals and their activities. Neither of the state’s witnesses 

would go that far. Id. at 48. Nevertheless, the master concluded that the 

Coke test may have been slightly liberalized by Justice Story, when he 

emphasized the requirement to discern “objects” on the opposite shore, 

144. The term, “within the jaws of the land,” continues to have application today as a requirement of 

landlocked status for juridical bays under Article 7 of the Convention on the Territorial Sea and the Contiguous 

Zone. The tests about to be discussed have, however, no modern relevance. 

145. See, for example, The King v. Bruce, [1812] 2 Leach 1094, 168 E.R. 643. 

146. Most notable was the Supreme Judicial Court of Massachusetts’ holding that “all creeks, havens, and 

inlets lying within projecting headlands and islands, and all bays and arms of the sea lying within and between 

lands not so wide but that persons and objects on the one side can be discerned by the naked eye by persons 

on the opposite side, are taken to be within the body of the county.” Commonwealth v. Peters, 53 Mass. 387, 

392 (1847). 

Part One 99 

rather than individuals and their actions. United States v. Grush, 26 Fed.Cas. 

48, 52 (C.C. D.Mass. 1829) (No. 15,268). Together with evidence that the 

air would have been clearer in the 17th century and that Gay Head has 

eroded since then, the master determined that “an individual looking across 

the sound in 1664 or 1691 would have seen more and in greater detail than 

an individual of today.” Report at 49. And he concluded that 

“Massachusetts has established its claim to Vineyard Sound by ancient 

title.” Id. 

The entrance to Nantucket Sound is 9.2 nautical miles across and may 

have been even wider in the 17th century. Massachusetts did not claim that 

the Coke test would be met, but did produce evidence that at one time 

people could see from Cape Cod to Nantucket Island. From this the master 

concluded that the Hale test had been met but “because of the ambiguity of 

the evidence concerning the size of the eastern entrance to the sound during 

the colonial period, the Special Master cannot conclude that Massachusetts 

has proven this part of its case under the ‘clear beyond doubt’ standard of 

proof.” Report at 51. Only if the Court altered that standard would 

Nantucket Sound be inland water through “ancient title.” 

Next, the master turned to the extensive evidence of colonial reliance on 

the Sounds for economic development. Interests included fishing, whaling, 

shell fisheries, salt making, seaweed harvesting, and the production of 

energy from the tides. Report at 53-56. He concluded that “the basis of a 

historic claim may therefore be established by evidence of an effective and 

long-term exploitation of relatively small, shallow, and at least partially 

land-locked bodies of water. Nantucket Sound and Vineyard Sound meet 

these criteria. The Special Master therefore concludes that Massachusetts 

has introduced sufficient evidence to support a finding that the nature and 

extent of the colonists’ exploitation of the marine resources of the sounds 

was equivalent to a formal assumption of sovereignty over them.” Report 

at 58. 

But the master’s determinations on the first two of the state’s 

contentions did not end the matter. Federal and state legislation affected his 

ultimate recommendations. 

In 1859 Massachusetts set its maritime boundary at 1 marine league (3 

nautical miles) from its coast. Acts of 1859, Ch. 289. It also closed arms of 

the sea that had mouths of no more than 2 marine leagues. In 1881 the 

state legislature directed the Harbor and Land Commissioners to draw the 

1859 boundaries. Acts of 1881, Ch. 196. That was done. The 

Commissioners closed Vineyard Sound with a line similar to that urged by 

the state before the master.147 The parties stipulated that foreign powers 

147. Buzzards Bay was likewise closed. A Supreme Court decision, upholding Massachusetts’ right to 

regulate fishing in that bay, was cited by Massachusetts as ratification of the state’s similar claim to Vineyard 

Sound. Both closing lines were depicted on exhibits in the early case. Manchester v. Massachusetts, 139 U.S. 240 

(1891). 
100 Shore and Sea Boundaries 

would have known of the state claim to Vineyard Sound, and none 

protested. Report at 60. The master concluded that the 1881 legislation 

“operated as an effective assertion of Massachusetts sovereignty over 

Vineyard Sound and therefore created an independent basis for the present 

Massachusetts claim to the sound as historic inland waters.” Id. Nantucket 

Sound was not enclosed by the Commissioners. 

The master recommended that Massachusetts had established historic 

title to Vineyard Sound. He pointed to federal legislation that included “all 

of the waters and shores within the county of Duke’s” as part of a Customs 

District as early as 1789, 1 Stat. 29, and noted that Attorney General 

Randolph relied upon similar language in support of his claim to Delaware 

Bay. Report at 62. Sovereignty had been exercised continuously since 1789, 

both by the federal and state governments. Id. at 63. And, the international 

community had known of the assertion, and acquiesced, since 1789. Id. 

Nantucket Sound, he concluded, must be treated differently. The 

evidence, he said, showed that Nantucket Sound is the kind of water body 

that might have been treated as inter fauces terrae, but that alone was 

insufficient to prove an intent to do so. The legislation upon which he 

relied in recommending inland water status for Vineyard Sound worked 

against Massachusetts here. The federal customs district did not include the 

waters of Nantucket Sound. Nor was it claimed by the state itself in 1859 

or 1881. Thus, according to the master, “although Massachusetts could have 

asserted a claim to Nantucket Sound, it failed to do so. Therefore, whatever 

rights it may have had over Nantucket Sound during the colonial period 

lapsed . . . .” Report at 65. 

Although the United States disagreed with the special master’s findings 

as to Vineyard Sound, the 1,000 acres at issue there were considered de 

minimis and it did not take exception to the master’s recommendation. 

Massachusetts did take exception to the adverse recommendation in 

Nantucket Sound, but dropped its historic waters claim, choosing to rely 

solely on the “ancient title” theory. 

The Court thoroughly reviewed the evidence and arguments. It 

acknowledged that “ancient title” will only arise with discovery and 

occupation, fortified by long usage, prior to the emergence of the doctrine 

of freedom of the seas. United States v. Maine, (Massachusetts Boundary Case), 

475 U.S. 89, 96 (1986). That is, the title “must have been perfected no later 

than the latter half of the 18th century.” Id.148 

But the Court could not find the necessary “occupation.” “Our 

independent review leads us to conclude that the Commonwealth did not 

148. According to the Court, “we find it unnecessary to select a ‘critical date’ upon which the community 

of states would have rejected a British claim to Nantucket Sound. Because the colonists’ activities changed 

gradually in character and intensity over time, we need say only that effective ‘occupation’ must have ripened 

into ‘clear original title,’ ‘fortified by long usage,’ no later than the latter half of the 1700’s.” Id. at 97 n.11. 

Part One 101 

effectively ‘occupy’ Nantucket Sound so as to obtain ‘clear original title’ and 

fortify that title ‘by long usage’ before the seas were recognized to be free.” 

Id. Massachusetts’ evidence of occupation lay in the colonists’ reliance on 

its resources. Yet when the Court looked to international precedent it found 

significant distinctions. 

In the Fisheries Case (U.K. v. Nor.), [1951] I.C.J. 116, the International 

Court of Justice emphasized the Norwegian government’s exclusion of 

foreign fishermen from its inshore waters from at least 1618 until 1906. Id. 

at 99. Annakumaru Pillai v. Muthupayal presented similar facts. The Indian 

High Court ruled that chank beds, 5 miles offshore, “have always been taken 

to be the exclusive property of the sovereign, . . . the fishery operations 

connected therewith have always been carried on under State control and 

have formed a source of revenue to the exchequer.” 27 Indian L. R. 551 

(Madras 1903). The Chief Judge concluded that the practice, dating from 

the 6th century B.C., demonstrated “exclusive occupation.”149 Id. at 100. 

From these examples the Supreme Court concluded that occupation, for 

ancient title purposes, involves “not merely a right to exploit its resources, 

we believe that occupation requires, at a minimum, the existence of acts, 

attributable to the sovereign, manifesting an assertion of exclusive authority 

over the waters claimed.” United States v. Maine. Id. at 98.150 

The Court found the Massachusetts evidence to fall short in two 

particulars. First, it “does not prove occupation of the entirety of Nantucket 

Sound.” Id. at 101. In fact, most of the evidence was related to activities that 

“undoubtedly took place either within territorial waters or on dry land.” Id. 

Nor did it indicate a claim of “exclusive” rights to the Sound. Second, the 

evidence was not of a governmental claim. The Court commented that 

“even if Massachusetts had introduced evidence of intensive and exclusive 

exploitation of the entirety of Nantucket Sound, we would still be troubled 

by the lack of any linkage between these activities and the English Crown.” 

Id. at 102, citing United States v. Alaska, 422 U.S. 184, 190-191, 203 (1975). 

The Court went on to explain the importance of that “linkage,” saying, 

“unless we are to believe that the self-interested endeavors of every seafaring 

community suffices to establish ‘ancient title’ to the waters containing the 

fisheries and resources it exploits, without regard to continuity of usage or 

international acquiescence necessary to establish ‘historic title,’ solely 

because exploitation predated the freedom of the seas, then the 

149. The controversy arose when the defendant was accused of stealing chanks (a mollusk) from offshore 

beds leased to the plaintiff by the sovereign. See: Jessup, The Law of Territorial Waters and Maritime Jurisdiction, 

16 (1927). 

150. The Court offered additional examples of “claims to title based on exploitation of marine resources,” 

including “the pearl fisheries in Australia, Mexico, and Columbia, the oyster beds in the Bay of Granville and 

off the Irish Coast, and coral beds off the coasts of Algeria, Sardinia, and Sicily, and various grounds in which 

herring, among other fishes, are found.” Id. at 100, citing Fulton, supra, at 696-698. Each example involved 

“long standing state regulation.” 
102 Shore and Sea Boundaries 

Commonwealth’s claim cannot be recognized. Accordingly, we find that the 

colonists of Nantucket Sound did not effectively occupy that body of water; 

as a consequence, Great Britain did not obtain title which could devolve 

upon Massachusetts.” Id. at 103. 

Finally, the Court explained that its conclusion “is corroborated by the 

Commonwealth’s consistent failure to assert dominion over Nantucket 

Sound since that time.” Id. It was referring to the Supreme Judicial Court 

of Massachusetts’ opinion adopting Lord Coke’s test for county waters, 

which would not have included Nantucket Sound, Commonwealth v. Peters, 

53 Mass. 387, 392 (1847); the 1859 legislation claiming a 3-mile maritime 

belt and inland waters with mouths of 6 miles or less; and the 1881 

legislation that led to official charts depicting Nantucket Sound as territorial 

sea and high seas, not inland water.151 

“It was not until 1971 that Massachusetts first asserted its claim to 

jurisdiction over Nantucket Sound. There is simply no evidence that the 

English Crown or its colonists had obtained ‘clear original title’ to the 

Sound in the 17th century, or that such title was ‘fortified by long usage.’ 

Without such evidence, we are surely not prepared to enlarge the exception 

in Article 7(6) of the Convention for historic bays to embrace a claim of 

‘ancient title’ like that advanced in this case.” Id. at 105. To that statement 

the Court appended a footnote that reads in part, “the validity of and any 

limits to the ‘ancient title’ theory are accordingly reserved for an appropriate 

case.” Id. at n.20. 

Although ancient title may remain a viable theory in tidelands cases, no 

other state has made the claim. 

The Rhode Island and New York Boundary Case 

Unlike any other tidelands action, the Rhode Island and New York 

Boundary Case was prompted by a judicial proceeding to which the federal 

government was not even a party. The State of Rhode Island required that 

every foreign vessel and every American vessel registered for foreign trade 

take on a Rhode Island pilot before crossing Block Island Sound. Rhode 

Island found its authority in a federal statute that gives the states power to 

regulate pilots in “bays, inlets, rivers, harbors, and ports of the United 

States.” 46 U.S.C. 211. Pilots licensed in Connecticut challenged Rhode 

Island’s requirement in federal district court. That court determined that the 

case turned on whether Block Island Sound is a “bay, inlet, river, harbor or 

port.” Warner v. Replinger, 397 F. Supp. 350, 351 (D.R.I. 1975). To make 

151. The Court quoted Sir Gerald Fitzmaurice’s separate opinion in Temple of Preah Vihear, saying “[i]t is 

a general principle of law . . . that a party’s attitude, state of mind or intentions at a later date can be regarded 

as good evidence – in relation to the same or a closely connected matter – of his attitude, state of mind or 

intentions at an earlier date also . . . .” [1961] I.C.J. Rep. 6, 61. 

Part One 103 

that determination it followed the process set out by the Supreme Court and 

its special masters in the tidelands cases, looking to the definitions in the 

Convention on the Territorial Sea and the Contiguous Zone. It concluded 

that Block Island Sound is a bay and, therefore, internal waters within 

Rhode Island. Id. at 355-356. The Connecticut pilots appealed but the 

federal appellate court upheld the decision. Warner v. Dunlap, 532 F. 2d 767 

(1st Cir. 1976). 

A petition for certiorari was filed with the United States Supreme Court 

but before it could be acted upon the federal government entered the fray. 

If the Warner case were allowed to proceed without federal participation 

national interests would be affected without federal involvement. First, the 

status of Block Island Sound would be determined and, second, Article 7 of 

the Convention would be interpreted in ways that would surely affect other 

coastal areas. 

The government had two options. It could participate in the existing 

suit at the Supreme Court level, probably as amicus curiae, or it could play a 

more substantive role by asserting its interests in a separate action.152 

The United States took the latter, and more affirmative, route. Rhode 

Island had been a party to United States v. Maine et al., Number 35 Original, 

in which the Atlantic states had sought, and been denied, rights well beyond 

the territorial sea. 420 U.S. 515 (1975). The Court made no determinations 

as to the limits of inland waters in that decision but retained jurisdiction to 

enter further decrees as appropriate. United States v. Maine, et al., 421 U.S. 

958 (1975). As the Supreme Court properly surmised “obviously in 

response to the ruling in the Rhode Island Pilotage Commission suit, and 

apparently in the thought that coastline determinations would best be 

made in this then-existing original action, the United States filed a motion 

for supplemental proceedings to determine the exact legal coastlines of 

Massachusetts and Rhode Island.” Rhode Island and New York Boundary Case, 

469 U.S. 504, 508 (1985).153 

Long Island and Block Island Sounds provided the battleground. The 

Sounds are formed on the north by the mainland of New York, Connecticut, 

and Rhode Island and on the south by Long Island and Block Island. 

(Figure 14) The states claimed that all waters landward of Long Island, a 

closing line connecting it to Block Island, and a closing line connecting 

152. Even if the government had done nothing, the Supreme Court would likely have invited its 

comments in the Rhode Island case (known as Ball v. Dunlap in the Supreme Court) as has been its tradition 

when it anticipates a federal interest in actions brought to it. 

153. The Honorable Walter E. Hoffman was appointed special master. Differences in the Rhode Island 

and Massachusetts issues caused him to sever the cases for trial. The Massachusetts case is discussed immediately 

above. Judge Hoffman notified each of the other parties to the original Maine case of his proceedings and 

invited them to express interests in participation, if any. Only New York opted to participate in the Rhode 

Island case. 
104 Shore and Sea Boundaries 

Figure 14. Long Island and Block Island Sounds. (Based on NOAA Chart 13003) 

Block Island to the Rhode Island mainland are inland. The federal 

government acknowledged that Long Island Sound is historic inland water 

but contended that Block Island Sound is territorial and high seas.154 

In proceedings before the special master the states based their inland 

water claims on two theories. First, they contended that the already 

recognized historic waters of Long Island Sound extended eastward to 

include Block Island Sound. Alternatively, they urged that the entire area 

qualified as a juridical bay. 

The historic waters claim was supported by three assertions of 

jurisdiction. The first involved fisheries enforcement. New York officials 

testified that they enforced state lobster regulations in Block Island Sound 

against residents and nonresidents. Rhode Island and New York Boundary 

Case, Report of the Special October Term 1983, at 12. The special master 

reviewed the Supreme Court’s consideration of fisheries evidence in United 

States v. Alaska, concerning a historic waters claim to Cook Inlet, and 

concluded that “with respect to the fishing regulations which treat residents 

and non-residents alike, since they afford foreign nationals the same rights 

as are enjoyed by Americans, their enforcement fails to establish the states’ 

historic claim as a matter of law. With respect to the regulations which 

154. Although the United States accepted Long Island Sound as inland, the states urged a more seaward 

limit of those inland waters than the government recognized. 

Part One 105 

discriminate between Americans and foreign nationals, the Special Master 

concludes that the evidence of enforcement fails to establish acquiescence 

by foreign states and thus does not support any historic claim. The evidence 

did not include a single incident involving a foreign vessel and thus there is 

no evidence that any foreign government was ever informed of the States’ 

claim of dominion.” Id. at 14. 

Next the states pointed to the pilotage statutes that prompted this phase 

of the litigation. New York and Rhode Island had legislation that required 

the use of their pilots within their respective corners of Block Island Sound. 

The requirement is clearly applicable to foreign vessels. Here the master 

turned to the Court’s language in United States v. Louisiana where, in 

response to that state’s reliance on the Coast Guard’s “inland rules” line, it 

said “it is universally agreed that the reasonable regulation of navigation is 

not alone a sufficient exercise of dominion to constitute a claim to historic 

inland waters. On the contrary, control of navigation has long been 

recognized as an incident of the coastal nation’s jurisdiction over the 

territorial sea.” Louisiana Boundary Case, 394 U.S. 11, 24-26 (1969) (citing 

Article 17 of the Convention). 

Applying this reasoning to the situation before him the master 

determined that “the Rhode Island and New York pilotage statutes and their 

enforcement does not support a claim that Block Island Sound should be 

considered historic internal waters.” Report at 16-17.155 

Finally, the states relied upon a boundary agreement that divided the 

waters of Block Island Sound between them and, on July 1, 1944, was 

approved by Congress. H.R.J. Res. 138, 58 Stat. 672 (1944). A map, 

depicting the boundary through the Sound, was also provided. Report, 

Appendix D. In addition, they introduced a letter from the legal adviser of 

the Department of State to the solicitor general that cited a similar 

agreement establishing the boundary between New York and Connecticut in 

Long Island Sound as evidence of a historic waters claim there. 

The master was not convinced. He emphasized that Congress approved 

the Rhode Island/New York boundary as “solely between two states . . . and 

not to be construed so as to impair or affect any rights of the United States.” 

Report at 19. What is more, he went on, the agreement alone “is insufficient 

to establish a historic claim as to Block Island Sound. The states presented 

no evidence of the exercise of any authority under this agreement.” And 

further, “even if the States’ evidence is accepted as demonstrating a proper 

exercise of authority, the evidence is still far from establishing clearly 

beyond doubt that the States exercised sovereignty over the waters of Block 

155. The terms “internal waters” and “inland waters” are used interchangeably in law of the sea contexts. 
106 Shore and Sea Boundaries 

Island Sound. Additionally, it cannot be inferred from any of the evidence 

that any foreign nation has ever had the opportunity to acquiesce to such an 

exercise of authority over Block Island Sound.” Report at 19.156 

As to the State Department comment on Long Island Sound, he noted 

that the letter did not say that the boundary agreement there was enough to 

establish historic title, only that historic title there had never been disputed, 

as evidenced, in part, by the boundary agreement. “The letter does not 

conclude the issue in this proceeding, nor does it significantly support the 

claim that Block Island Sound is a historic bay.” Report at 18 n.11. In sum, 

historic title, beyond that acknowledged by the United States, had not been 

proven. The states did not take exception to that finding. 469 U.S. at 504 

n.5. Thereafter, the states’ fortunes lay in their juridical bay contentions. 

Rhode Island and New York had three separate approaches for enclosing 

Long Island and Block Island Sounds under Article 7 and were successful on 

their primary theory that Long Island is legally part of the mainland under 

principles first announced in the Louisiana Boundary Case, 394 U.S. 11 

(1969).157 The Court had established that under the Convention, Article 7 

bays are indentations into the mainland and may not be formed by offshore 

islands that may not, realistically, be considered part of that “mainland.” 

However, the Court concluded that much of the marshland of the 

Mississippi River delta is “realistically” mainland, even though its uplands 

are often divided by a system of natural and man-made waterways.158 

The federal government argued that any exception to the Convention’s 

literal application should be limited to the highly unusual circumstances of 

the Louisiana coast, for which it had originally been adopted. The states 

argued to the contrary, contending that the criteria set out by the Court in 

the Louisiana decision should be applied to Long Island to determine 

whether it too is assimilated to the mainland. The master agreed that Long 

Island should at least be tested against the Court’s criteria and did so.159 

156. The requirement that evidence of historic title be “clear beyond doubt” is triggered by a federal 

disclaimer of historic title. See: United States v. California, 381 U.S. 139, 175 (1965). The master here noted that 

the federal Baseline (or Coastline) Committee had published a set of charts in 1971 which were consistent with 

its position here; that is they depicted Block Island Sound as territorial and high seas. This, he concluded, 

constituted a federal disclaimer of historic inland water title. Report at 11. 

157. The other options assumed that Long Island is an island but that it and Block Island “screen” 

indentations into the mainland. State Department geographers Robert Hodgson and Robert Smith testified that 

the mainland coastline in the area included no “well marked indentation.” Report at 25-26. The states’ 

witnesses generally agreed and the master rejected those alternative theories, saying “when Long Island is viewed 

strictly as an island there is no indentation into the coast that will satisfy the requirement of Article 7(2). The 

coast in this area is only a mere curvature. This conclusion eliminates two of the juridical bay theories offered 

by the States . . . .” Id. at 28. 

158. Technically these uplands would be islands under the Convention, Article 10(1) of which provides 

that “an island is a naturally formed area of land, surrounded by water, which is above water at high tide.” 

159. The Court had said that “while there is little objective guidance on this question to be found in 

international law, the question whether a particular island is to be treated as part of the mainland would depend 

on such factors as its size, its distance from the mainland, and the depth and utility of the intervening waters, 

the shape of the island, and its relationship to the configuration or curvature of the coast.” 394 U.S. at 66. 

Part One 107 

The federal government took the position that the proper focus of the 

assimilation issue is the area of water that separates Long Island from the 

actual mainland, the East River. Its witnesses emphasized that although 

narrow, the river is deep and has been a significant channel for commercial 

navigation since the early 1600s. Report at 40.160 The Supreme Court had 

included “the depth and utility of the intervening waters” as a criterion for 

island assimilation and the United States argued that the navigational 

importance of the East River precluded its being treated as land.161 What is 

more, they testified, the East River is not a “river” at all, but a tidal strait “fed 

by the tidal flow between Long Island and lower New York harbor.” Id.

162 

The states argued that navigable capacity today is irrelevant. Their 

evidence showed that prior to artificial improvements the East River was 

shallower, had a much faster current, and was considered to be extremely 

dangerous. Report at 43. They also pointed out that the river is not a route 

of international navigation. It does not provide a route of passage between 

areas of open sea. 

In addition, and over the federal government’s objections of relevance, 

the states emphasized the social, economic, political, and historic 

connections between Long Island and the conceded mainland.163 The facts 

can hardly be contested.164 Only their relevance to the matter at hand was 

open to question. 

The special master was convinced by the states’ position. He noted that 

the western end of Long Island “is separated from the mainland by only a 

narrow stretch of water. The island is closely related to the mainland 

geographically and physically, as well as socially and economically. After 

taking all of the factors into consideration, the Special Master concluded 

that Long Island can be treated as part of the mainland.” Report at 46. In 

emphasizing the narrow channel that separates the island from the 

mainland at their closest point, the master appears to track the Supreme 

160. For example, the channel was shown to have accommodated more than 77,000 commercial 

movements and 52 million tons of cargo in 1972 alone. Report at 40. 

161. The consequence of determining that an island is assimilated to the mainland is, of course, that the 

intervening waterway is mainland also. 

162. Drs. Hodgson and Smith, and Administrative Law Judge Hugh Dolan, all members of the federal 

government’s Baseline Committee when it considered these same questions, testified as to the significance of 

this factor in the Committee’s determination that Long Island should not be considered part of the mainland. 

Report at 40-43. 

163. For these purposes Manhattan is acknowledged to be part of the mainland, being separated from 

other portions of the mainland only by the Harlem River which is clearly a river. No one argued that 

Manhattan is legally an island. 

164. As the master summarized, “the western end of Long Island is part of New York City and the majority 

of New York City residents live on Long Island. On a daily basis there is an enormous movement of people 

from Long Island to the mainland and from the mainland to Long Island. Additionally, the western end of 

Long Island is physically connected to the mainland, either directly or indirectly through Manhattan or Staten 

Island, by twenty-six bridges and tunnels.” Report at 45. 
108 Shore and Sea Boundaries 

Court’s criteria for island assimilation. He reasoned that “Long Island 

Sound, without question, would be a juridical bay if the East River did not 

separate Long Island and the mainland. The fact that the East River is 

navigable and is a tidal strait, however, does not destroy the otherwise close 

relationship between Long Island and the mainland when all the factors are 

considered.” Report at 47.165 

But the master went on to explain his conclusion on bases that the 

federal government believed to go beyond the Court’s guidelines. Their 

essence was a concentration on the nature of Long Island Sound, the body 

that becomes a bay if assimilation is accepted, rather than on the East River, 

whose nature either joins or separates Long Island from the mainland. 

The master said that “two factors are of utmost importance to this 

conclusion. Long Island’s geographic alignment with the coast is first. Long 

Island and the coast are situated and shaped such that they enclose a large 

pocket of water, which closely resembles a bay. By viewing charts of the 

area, the bay-like appearance of the area is obvious and it becomes readily 

apparent that the enclosed water has many of the characteristics of a bay.” 

Report at 46. Although looking at a geographic relationship, the master was 

not limiting himself to the water body where a connection, if any, would be 

found, but was considering the body that might be a bay as a consequence 

of that linkage. The federal government understood the Court to suggest in 

the Louisiana decision that it was the point of assimilation that was to be 

tested by its criteria. 

And the master went another step in his consideration of the nature of 

Long Island Sound, rather than the East River. He said that “the geographic 

configuration of Long Island and the mainland forces the enclosed water to 

be used as one would expect a bay to be used. Ships do not pass through 

Long Island Sound and the East River unless they are headed for New York 

Harbor or ports on Long Island Sound.” Report at 46. Again the master 

focused on the Sound rather than the river in making his assimilation 

determination. 

In taking this approach the master was clearly considering the nature of 

Long Island Sound in determining whether Long Island is part of the 

mainland. The United States felt that the process improperly combined two 

questions in one. It contended that one first asks whether an offshore 

feature is properly assimilated to the mainland. That inquiry involves only 

an analysis of the waterway that may be treated legally as land (the East 

River in this case). If assimilation is found, the legal consequences are 

165. The master had previously explained that assuming Long Island’s assimilation to the mainland 

Article 7’s other criteria would be met. For example, Long Island Sound is then clearly a well-marked 

indentation whose water area meets the semicircle test. Those points were not contested. 

Part One 109 

considered; in this case the criteria of Article 7 would be applied and Long 

Island Sound would be determined to qualify as a juridical bay on its 

geographic criteria. 

Although the master’s analysis of the East River connection would seem 

to adequately justify his conclusion that Long Island may be assimilated to 

the mainland, his additional explanation leaves interesting questions as to 

how future controversies may be evaluated. 

Having made the assimilation determination, the special master was left 

to locate the mouth of the juridical bay. The federal government took the 

position that if Long Island is part of the mainland, a juridical bay exists 

whose closing line runs between Montauk Point on the island and Watch 

Hill Point, Rhode Island. This line would enclose all of Long Island Sound 

and the western reach of Block Island Sound. The United States argued that 

more seaward waters are not landlocked.166 The states, by contrast, urged a 

closing line that included all of Block Island Sound as inland water. It 

would have run from Montauk Point to Block Island and back to Point 

Judith, Rhode Island. 

Substantial evidence was introduced through experts for both sides on 

the proper means of determining what waters are landlocked and 

identifying proper headlands for juridical bays.167 After carefully 

considering all that was offered, including an extensive explanation of the 

basis for the Baseline Committee’s resolution of the issue, the master 

adopted the federal position. He concluded that “the waters east of 

Montauk Point and Watch Hill Point are exposed to the open sea on two 

sides and consequently are not predominantly surrounded by land or 

sheltered from the sea. Upon viewing charts of the area, there is no 

perception that these waters are part of the land rather than open sea. 

Conversely, the waters west of Montauk Point and Watch Hill Point satisfy 

all the criteria for being landlocked.” Report at 59-60. With particular 

regard to the states’ proposal to anchor closing lines on Block Island, he 

reasoned that “Block Island cannot be included in the closing line of the bay 

for several reasons. First, Block Island is located well outside the 

indentation which begins at the Montauk Point to Watch Hill Point line. 

Second, if the closing line included Block Island, there would be waters 

inside the closing line which are not landlocked. Third, the natural 

entrance or mouth to the indentation is along the Montauk Point to Watch 

Hill Point line and Block Island does not form the mouth to the bay or 

166. The United States had, of course, long recognized that Long Island Sound is historic inland water 

within the states’ jurisdiction. The juridical bay closing line proposed by the government was slightly seaward 

of the acknowledged limits of historic waters. 

167. The master provides a thorough summary and analysis of this evidence at pages 51-60 of his Report. 
110 Shore and Sea Boundaries 

cause the bay to have multiple mouths. Last, Block Island is too far seaward 

of any mainland-to-mainland closing line to consider altering the closing 

line to include Block Island.” Id. at 60. 

The United States took exception to the master’s decision that Long 

Island is assimilated to the mainland and the states took exception to the 

master’s recommended closing line. The Supreme Court adopted all of the 

master’s recommendations. In so doing it seems to have gone farther than 

it sometimes has in endorsing the master’s reasoning. The following are 

some examples of the Court’s comments that may have particular relevance 

to future litigation. 

First the Court reaffirmed its general rule that “islands may not normally 

be considered extensions of the mainland for purposes of creating the 

headlands of juridical bays.” Rhode Island and New York Boundary Case, 469 

U.S. 504, 519-520 (1985). But it rejected the federal position that any 

exception should be limited to the deltaic circumstances found in the 

Louisiana Boundary Case, saying that “given the variety of possible 

geographic configurations, we feel that the proper approach is to consider 

each case individually in determining whether an island should be 

assimilated to the mainland. Applying the ‘realistic approach,’ . . . we agree 

with the Special Master that Long Island, which indeed is unusual, presents 

the exceptional case of an island which should be treated as an extension of 

the mainland.” Id. at 517. 

The Court went on to analyze the relationship between Long Island and 

the mainland at the East River. Comparing that narrow and shallow 

opening to the enormity of Long Island, and Long Island Sound, it 

concluded that “the existence of one narrow opening to the sea does not 

make Long Island Sound or Block Island Sound any less a bay than it 

otherwise would be. Both the proximity of Long Island to the mainland, the 

shallowness and inutility of the intervening waters as they were constituted 

originally, and the fact that the East River is not an opening to the sea, 

suggest that Long Island be treated as an extension of the mainland.” Id. at 

519. It then discussed the use of Long Island Sound, but rather than giving 

that factor the significance to which it seems to have been allocated in the 

master’s reasoning, the Court described it as “buttressing” its earlier 

reasoning. Id. In all, the Court’s basis for adopting the master’s 

recommendation seems more closely tied to the federal understanding of its 

Louisiana criteria. That is, island assimilation issues will turn on the nature 

of the waterway that will have to be treated as mainland. 

The Court also adopted the master’s recommendation that Block Island 

does not form multiple mouths to a juridical bay. In so doing it made a 

number of determinations that will help in future controversies. First its 

reasoning makes clear that the first step in the process is to locate the 

Part One 111 

mainland headlands of the indentation in question. It concluded that but 

for Block Island the Montauk to Watch Hill line “clearly would be the 

closing line of the bay.” Id. at 521. Block Island, on the other hand, “is too 

removed from what would otherwise be the closing line of the bay to affect 

that line.” Id. at 524. Rejecting a state argument, it ruled that just because 

ocean traffic entering a bay has to avoid an offshore island, that island does 

not create multiple mouths to the bay. Id. at 525. It agreed with 

Commander Beazley that to be landlocked “there shall be land in all but 

one direction and also that it should be close enough at all points to 

provide [a seaman] shelter from all but that one direction.” Id.168 

The Court also cited, apparently with approval, objective tests endorsed 

by Beazley, Hodgson, and Alexander for locating headlands to juridical 

bays. Id. at 522 n.14. And it provided a useful description of how the 45-

degree test is applied. Id.

169 

The Court understood that “the States appear to be arguing not that an 

island near the mouth of a bay creates multiple mouths, but that an island 

well beyond what would otherwise be the mouth of the bay can cause the 

bay to have an entirely different mouth.” Id. at 524. And it reasoned that 

“as the Special Master and the members of the Baseline Committee 

concluded, the waters in the outer reaches of Block Island Sound in any 

practical sense are not usefully sheltered and isolated from the sea so as to 

constitute a bay or bay-like formation.” Id. at 526.170 

So the master’s recommendations were adopted. Long Island is 

assimilated to the mainland. As a result, Long Island Sound and a portion 

of Block Island Sound qualify as a juridical bay under Article 7 of the 

Convention. The inland waters of that bay extend to a line between 

Montauk Point on Long Island and Watch Hill Point in Rhode Island. Block 

Island is an island under Article 10. It is surrounded by a 3-mile belt of state 

submerged lands but has no effect on inland waters closing lines. 

168. Quoting Beazley, Maritime Limits and Baselines: A Guide to Their Delineation, The Hydrographic 

Society, Special Publication No. 2, p. 13 (1978) and citing to Hodgson & Alexander, Towards an Objective 

Analysis of Special Circumstances, Law of the Sea Institute, Occasional Paper No. 13, pp. 6 and 8 (1972). 

169. As the Court explained, “a number of objective tests have been formulated to assist in selecting the 

natural entrance points to a bay. The primary one is the 45-degree test. It requires that two opposing mainlandheadland points be selected and a closing line be drawn between them. Another line is then drawn from each 

selected headland to the next landward headland on the same side. If the resulting angle between the initially 

selected closing line and the line drawn to the inland headland is less than 45 degrees, a new inner headland 

is selected and the measurement is repeated until both mainland-headlands pass the test.” 469 U.S. at 522 

n.14. See Part II for full explanation of the 45-degree test. 

170. Both the master and the Court make a number of positive references to the work of the Baseline 

Committee. The foregoing statement is the most direct recognition of the Committee’s expertise. 
112 Shore and Sea Boundaries 

United States v. Florida 

The federal government had included Florida as a defendant in United 

States v. Maine, et al., Number 35 Original, the action against all states 

bordering on the Atlantic, and in United States v. Louisiana, et al., Number 9 

Original, involving all Gulf Coast states. Florida’s interests were severed 

from the Maine case early in those proceedings, largely because its claims 

were not based on European charters but on a congressionally approved 

state constitution. United States v. Maine et al., 403 U.S. 949 (1971). 

Unresolved issues also remained from its participation in the Gulf 

coast litigation. All remaining Florida questions were consolidated in this 

new Original action. The Honorable Albert B. Maris was appointed as 

special master.171 

With coasts on both the Atlantic Ocean and the Gulf of Mexico, the 

Florida litigation raised questions not previously confronted in tidelands 

litigation. First, the parties contested the proper means for determining 

Florida’s Submerged Lands Act boundary in the Atlantic. Second, they 

argued about the location of the state’s constitutional boundary in the Gulf 

of Mexico. And finally, they could not agree on the point at which the 

Atlantic and the Gulf come together.172 

Following the Civil War, Congress provided procedures by which 

secessionist states would be readmitted to representation in Congress.173 

Pursuant to those procedures Florida adopted a new constitution in 1868. 

That constitution contained, among other things, a state boundary 

description. By Act of June 25, 1868, 15 Stat. 73, Congress approved 

that constitution.174 

The parties agreed that the constitutional boundary lay, at least for some 

stretches, more than 3 miles offshore. Florida argued that its approval, in 

1868, amounted to an express or implied congressional grant that remained 

operative to the present. The United States contended that boundaries in 

171. Judge Maris was also special master in United States v. Maine, et al., Number 35 Original. 

172. The Florida action also raised two procedural issues not previously encountered in tidelands cases. 

First, the state filed a Counterclaim, contending that the Submerged Lands Act constituted an unconstitutional 

“taking” of preexisting state rights seaward of the 3-mile grant in the Atlantic. The federal government 

responded that the Act was simply a grant and if Florida had preexisting rights seaward the Act did not detract 

from them. The state also sought a jury trial on the issue. The special master recommended dismissal of the 

Counterclaim and denial of the jury demand. The Supreme Court adopted those recommendations. United 

States v. Florida, 404 U.S. 998 (1971). 

173. Acts of March 2, 1867, 14 Stat. 428, and March 23, 1867, 15 Stat. 2. 

174. The boundary along Florida’s Atlantic coast ran from the mouth of the St. Mary’s river “thence 

southeastwardly along the coast to the edge of the Gulf Stream; thence southwestwardly along the edge of the 

Gulf Stream and Florida Reefs to and including the Tortugas Islands . . . .” 

Part One 113 

the Atlantic had no relevance to the question before the master. The Court 

had considered state boundaries of California, Texas, and Louisiana and 

had determined in each instance that they did not encompass offshore 

seabed rights. 

The special master agreed with the federal position. He found no 

express or implied grant in congressional approval of the 1868 Florida 

constitution. Report at 8 and 11. Such boundaries, he concluded, are 

relevant only to determining the limits of the more expansive grant in the 

Gulf.175 

That determination brought the parties to their second point of 

disagreement, the constitutional boundary in the Gulf of Mexico. Here they 

agreed that the boundary has relevance to delimiting Florida’s Submerged 

Lands Act grant. Depending on its location, it might qualify the state for 9 

miles of submerged lands in the Gulf. But the parties did not agree on the 

location of that boundary. 

The 1868 constitutional boundary north of the Keys ran from the Dry 

Tortugas Islands “northeastwardly to a point three leagues from the 

mainland” and then followed the mainland, 3 leagues offshore, to the 

Alabama boundary. The state read this provision to describe a line running 

45 degrees east of north until it came within 9 miles of the mainland, in the 

vicinity of Cape Romano. The United States argued that the term 

“northeastwardly” does not necessarily refer to a constant bearing but might 

describe any line whose terminus lies to the north and east of its beginning 

point. (Figure 15) The government put on evidence of historic use of 

waters north of the Keys and contended that only the shallow waters 

paralleling the Keys, sometimes less than 9 miles offshore, were of interest 

to Floridians in the mid-1800s and were intended to be included in the 

constitutional boundary. 

But the master rejected both contentions. He concluded that the 

“northeastwardly” call described a line that follows the Keys at a distance of 

3 marine leagues. He said, “in the absence of anything to the contrary in 

the phrase ‘thence northeastwardly to a point three leagues from the 

mainland,’ I think it is permissible to infer that the northeastwardly line was 

175. Despite this conclusion the master, at the request of the parties, determined where the 1868 Atlantic 

boundary is located. Report at 21-24. The master pointed out that recent actions by the State of Florida buttress 

any conclusion that the state’s Submerged Lands Act grant is limited to 3 miles in the Atlantic. In 1955 the state 

adopted legislation “fixing and establishing the boundary of the State of Florida along the Atlantic Ocean and 

the Florida Straits.” That statute was prompted by the Submerged Lands Act’s invitation for states to “extend” 

their seaward boundaries to 3 nautical miles, and Florida specifically did so. Act of May 31, 1955, Laws of 

Florida, 1955, chap. 29744. On November 6, 1962, the state amended its constitutional boundary in a similar 

manner. As the master pointed out, even if he were wrong and Florida had had a more extensive boundary in 

1868, “the effect of the 1955 Act and the 1962 Constitutional amendment was to abandon the jurisdiction of 

the State” beyond the 3-mile line. Report at 17. 
114 Shore and Sea Boundaries 

Figure 15. Florida Bay. The state and federal positions differed as to the 

location of Florida's 1868 constitutional boundary. 

itself intended to run three leagues from the Dry Tortugas and the coast of 

the Keys . . . to a point three leagues from the mainland.” Report at 28.176 

The master had selected a line more closely aligned to that urged by the 

United States than by the state. But that does not mean that the federal side 

got the better of a compromise. The special master recommended a line 

that was at all times 9 miles offshore. Although the state’s proposal was 

significantly seaward of that line, the maximum grant available to it under 

the Submerged Lands Act was 9 nautical miles. Thus the state’s litigation 

position was overkill. It got the maximum possible grant throughout the 

Gulf of Mexico. 

Then came what was probably the most interesting point in contention– 

one that is unique to Florida’s situation. That is, where does the Atlantic 

end and the Gulf of Mexico begin? The question was critical, of course, 

because Florida would get three times as much submerged land in the Gulf 

as it did in the Atlantic. 

176. Again the state’s 1962 constitutional boundary amendment supported the master’s interpretation. 

In that action the 1868 language was amended to read “thence northeastwardly, three (3) leagues distant from 

the coast line, to a point three (3) leagues distant from the coast line of the mainland.” The state clearly was 

not, in 1962, claiming a line which ran 45 degrees, on a constant bearing, from the Dry Tortugas to 

Cape Romano. 

Part One 115 

Again the parties had differing views. They agreed that waters west of 

Cuba lay in the Gulf and that those north of the Bahamas are part of the 

Atlantic, but the Straits of Florida, which separate the Keys from islands of 

the Caribbean, formed the battleground. 

The state argued that the Florida Straits are part of the Gulf of Mexico 

and supported that argument with a theory that was new to tidelands 

litigation. Florida put on evidence that the three-dimensional “basin” that 

is identified with the Gulf of Mexico extends through the Straits of Florida 

to a line that runs east from Miami to the Bahamas. (Figure 16) State 

experts testified that if a marble were dropped on the seabed south of this 

line it would roll southwestward to the Gulf, but another dropped north of 

the line would roll to the Atlantic. Those experts believed that “it is the 

configuration of the sea bottom which determines the question.” Report 

at 19. 

Figure 16. Straits of Florida. Note the positions taken by the U.S. and Florida 

as to the limits of the Gulf of Mexico. 

The United States considered the Straits to be part of the Atlantic and 

emphasized the two-dimensional. The government proposed a line that 

follows the 83rd meridian of longitude from Cuba to the Dry Tortugas. This 

line, federal experts testified, represented the general view of geographers, 
116 Shore and Sea Boundaries 

cartographers, and historians. Seamen plying the straits from east to west 

were said to have considered themselves to be entering the Gulf when they 

crossed the 83rd meridian. What is more, that line had been adopted by the 

International Hydrographic Bureau as the entrance to the Gulf. Although 

not of legally binding significance, that organization’s position certainly 

gave weight to the federal argument. As the master acknowledged, the 

Bureau’s determinations are made “for the convenience of national 

hydrographic offices when compiling their sailing directions, notices to 

mariners, etc., so as to insure that all such publications headed with the 

name of an ocean or sea will deal with the same area.” Report at 19.177 

The master explained that, as presented to him, “the question seems to 

turn on whether we accept the views of geographers, cartographers, 

historians, and explorers who are primarily concerned with the surface of 

the sea, as the United States urges, or those of marine geologists who are 

primarily concerned with the topography of the sea floor, as Florida urges.” 

Report at 18. In the end he concluded that Congress would have been 

suggesting the federal approach when it referred to the Gulf and Atlantic in 

the Submerged Lands Act. Id. at 20. He recommended the 83rd meridian as 

the entrance to the Gulf of Mexico. Id. 

Having resolved these issues unique to Florida the master turned to 

three more traditional coast line questions. First was Florida’s allegation 

that “Florida Bay,” the immense water area east of the line from the Dry 

Tortugas to Cape Romano, is a juridical bay under Article 7. The master 

noted that Article 7 contains two criteria: the waters must be landlocked, 

and the closing line may not exceed 24 nautical miles. Report at 38. The 

waters of Florida Bay, as claimed by the state, are not landlocked, but open 

to the Straits of Florida through numerous channels that separate the Keys. 

Nor does Florida Bay conform to the Convention’s size requirement, having 

a mouth of approximately 100 miles. The master concluded that the area 

claimed by Florida is not an Article 7 bay. 178 Report at 38. 

Next, the master considered the state’s contention that Article 4 straight 

baselines should be adopted for its coast. Citing the Supreme Court’s 

decisions in California and Louisiana, holding that “the choice under the 

Convention to use the straight-base-line method for determining inland 

177. And here again, the federal position was supported by the action of Florida’s legislature. In its 

boundary Act of May 31, 1955 – drafted in specific response to the federal Submerged Lands Act – Florida 

described the Straits of Florida as “an arm of the Atlantic Ocean.” Although later repealed, Chapter 71-348, the 

master concluded that the 1955 description stood as “an expression of the understanding of the State at about 

the time of the enactment of the Submerged Lands Act.” Report at 20. 

178. Interestingly, and completely without any suggestion by the parties, the master viewed the very 

eastern end of Florida Bay separately, and concluded that it met the requirements of Article 7. That conclusion 

is discussed below. 

Part One 117 

waters . . . is one that rests with the Federal Government, and not with the 

individual States,” United States v. California, 381 U.S. 139, 168 (1965), as 

affirmed in United States v. Louisiana, 394 U.S. 11, 72-73 (1969), the master 

concluded that “the evidence in this case conclusively establishes that the 

United States has not adopted the straight baseline method with respect to 

the determination of the coastline of the State of Florida.” Report at 49. 

The low-water line and other inland water closing principles would be used. 

Finally, the master considered Florida’s claim that Florida Bay is historic 

inland water. The master reviewed the Supreme Court’s historic bay 

decisions in California and Louisiana and applied the criteria that the Court 

had employed from the United Nations’ Juridical Regime of Historic Waters, 

Including Historic Bays, [1962] 2 Y.B. Int’l L. Comm’n 1, to the evidence 

offered by the state. As he described the criteria, “there must be an open 

notorious and effective exercise of sovereign authority over the area not 

merely with respect to local citizens but as against foreign nationals as well; 

second, this authority must have been exercised for a considerable period of 

time; and, third, foreign states must have acquiesced in the exercise of this 

authority as against their nationals.” Report at 41. 

He then noted that the federal government had disclaimed historic title, 

both through its litigation position here and the publication and 

distribution of its position on the Baseline Committee charts. This, he 

concluded, compelled Florida to prove its case with evidence that is “clear 

beyond doubt.” Id. at 42. 

Florida offered its 1868 boundary, with the 45-degree line closing 

Florida Bay as evidence of a claim. But the master noted that he had already 

concluded that the boundary paralleled the Keys rather than enclosing 

Florida Bay. Id. Next, the state introduced evidence of historic fisheries 

enforcement in the “bay,” to which the federal government was said to have 

acquiesced. But the evidence did not establish exercises of authority beyond 

the already recognized territorial sea, and fell short of supporting a claim to 

the bay as a whole. Nor was there any evidence of enforcement action 

against a foreign national, or that a foreign government had reason to know 

of a claim so as to establish acquiescence. 

Mineral leases lying beyond the territorial sea were offered as evidence 

but they were entered from 1944 to 1951 and the master concluded that the 

shortness of time precluded the finding of a “usage sufficiently remote in 

time to meet the second criterion for historic inland waters.” Id. at 46. 

What is more, the master reasoned, by the mid-1940s the international 

community had accepted national claims to the continental shelf and such 

leases would not, by then, constitute “use adverse to foreign nations.” Id. 

The state’s evidence of historic title was found not to be “clear beyond 

doubt” and its claim was rejected. Id. 
118 Shore and Sea Boundaries 

Having dealt with all of the issues raised by the parties, the master made 

two recommendations on matters upon which no evidence or argument 

had been offered. He returned to the question of Florida Bay and concluded 

that its eastern reaches do meet the requirements of Article 7. As to the area 

between the mainland of the Florida peninsula and the upper Florida Keys 

he concluded that a juridical bay exists, with a closing line from East Cape 

on Cape Sable to Knight Key. As he explained, “this area comprises for the 

most part very shallow water which is not readily navigable and nearly all 

of which is dotted with small islands and low-tide elevations. I find that 

this area is sufficiently enclosed by the mainland and the upper Florida 

Keys, which constitute realistically an extension of the mainland, to be 

regarded as a bay which constitutes inland waters of the State within the test 

applied in United States v. Louisiana . . . .” Report at 39. 

The recommendation came as a surprise to the federal side (as it 

presumably did to the state). Its boundary consequences were de minimis. 

As the master noted, the water area so enclosed is filled with islands and 

low-tide elevations. Many of these are so near the closing line proposed by 

the master that 3-league arcs swung from them envelop nearly all of the area 

that would have gone to the state under this finding. Nevertheless, Florida 

had made no such contention, and the federal government had not, of 

course, offered evidence or argument to rebut it. The question of what 

islands may be “assimilated to the mainland” under the principle 

announced by the Supreme Court in the Louisiana Boundary Case, 394 U.S. 

11 (1969), is particularly contentious and is bound to depend upon the 

particular facts of a case. The federal government was concerned that if this 

recommendation were adopted by the Court the upper Florida Keys would 

be thereafter put forward as an example of island assimilation. 

In addition, the United States was concerned about the master’s 

apparent reliance on the non-navigability of the area to be enclosed. 

Nowhere does Article 7 suggest that criterion as relevant to juridical bay 

analysis.179 Here again, the United States was concerned that the Court’s 

adoption of this recommendation would provide an adverse precedent 

without adequate consideration. 

The master made another recommendation on an issue that had never 

been raised in the proceedings. He concluded that as to “the Florida Keys 

from Money Key to Key West, the Marquesas Keys and the Dry Tortugas 

Islands . . . . the narrow waters within the group are inland waters of the 

State of Florida.” Report at 52. (Figure 17) Again, the state had not 

requested the determination nor had either party addressed that possibility 

in evidence or argument. 

179. Article 7 has always been applied through a two-dimensional review. The height of surrounding 

uplands, and the depth of enclosed waters, have been irrelevant to the analysis. Nothing in Article 7 suggests 

a different approach. 

Part One 119 

Figure 17. Marquesas Keys, west of Key West, Florida. The special master 

recommended that the “narrow waters” within the Marquesas, and other 

island groups, are inland. (Based on NOAA Chart 11434) 

Clearly the waters being described are closely associated with the 

surrounding land forms and in that sense might be thought to have more in 

common with inland waters than they do with territorial seas. However, 

the Convention provides no basis for considering them inland, with the 

possible exception of Article 4 straight baselines. The master had already 

decisively concluded that no such baselines had been drawn for Florida. 

Again, the consequence of the recommendation was more as an adverse 

straight baseline precedent than a loss of federal submerged lands. Little or 

no boundary effect could be imagined. Yet the federal government was 

concerned about its application to future tidelands actions. 

The special master had recommended against the United States on other 

issues in the proceeding but the government took exception only to these 

two unanticipated findings. The state took exception to other 

recommendations upon which its positions were rejected. The Court 

accepted briefs, heard arguments, and, in a two-page per curiam opinion, 

adopted the master’s recommendations on all of the litigated issues. United 

States v. Florida, 420 U.S. 531 (1975). 
120 Shore and Sea Boundaries 

It rejected each of the state’s exceptions. Id. at 533. Responding to the 

federal concern on the untried issues, the Court said “it appears that these 

recommendations of the Special Master were made without benefit of the 

contentions now advanced by the United States and the opposing 

contentions now presented by the State of Florida. The exceptions of the 

United States are therefore referred to the Special Master for his prompt 

consideration.” Id. 

Although the state may have gained small areas of submerged lands had 

it ultimately prevailed on the issues referred back, it elected not to pursue 

the matter and a decree was agreed to that does not recognize the closing 

line recommended by the master for eastern Florida Bay nor inland waters 

within island groups. United States v. Florida, 425 U.S. 791 (1976).180 

The Alaska Cases 

The United States and Alaska have, in three separate cases, litigated 

questions of that state’s coast line. The three cases involved entirely 

different tidelands questions. They are grouped together here because the 

same parties were involved but we discuss them individually. 

The Cook Inlet Case 

First in time was litigation over the status of Cook Inlet. Cook Inlet is a 

large bay extending 150 miles from its mouth to and beyond the city of 

Anchorage inland. As the Supreme Court noted, it is “larger than the Great 

Salt Lake and Lake Ontario. It is about the same size as Lake Erie. It dwarfs 

Chesapeake Bay, Delaware Bay, and Long Island Sound . . . .” United States 

v. Alaska, 422 U.S. 184, 185 n.1 (1975). (Figure 18) 

By 1959, at the time of Alaskan statehood, the early tidelands questions 

had been resolved. The Court had ruled that the federal government, not 

the states, held paramount rights beyond the coast. United States v. 

California, 332 U.S. 19 (1947). Congress, in 1953, had made a general grant 

to the states of federal rights within 3 miles of the coast line, putting them 

in the position that they believed themselves to have held prior to the 

California decision. Submerged Lands Act, 43 U.S.C. 1301 et seq. The 

180. Surprisingly, and despite years of federal prodding, at this writing a decree has not yet been entered 

which describes the boundary between federal and state submerged lands. For most states, and assuming an 

equal likelihood of accretion and erosion, neither party would be expected to gain or lose from a delay in 

establishing that line. However, Florida’s reliance on a historic boundary in the Gulf of Mexico puts it in an 

unusual position. The Supreme Court has already ruled that the 3-league grant is the lesser of 3 leagues from 

the modern or historic coast line. Texas Boundary Case, 389 U.S. 155 (1967). Because the Submerged Lands 

Act provides that the federal/state boundary will be fixed by a Supreme Court decree, 43 U.S.C. 1301(b), 

Florida only stands to lose with future coast line changes. Erosion can move the boundary landward until there 

is a decree. Accretion can move it seaward only to the 1868 boundary. 

Part One 121 

Figure 18. Cook Inlet and Shelikof Strait, Alaska. 

Supreme Court had ruled that the “coast line” is to be determined using 

principles found in the Convention on the Territorial Sea and the 

Contiguous Zone, 15 U.S.T. 1606 (1958). United States v. California, 381 

U.S. 139 (1965). The Submerged Lands Act was made applicable to Alaska 

by its Statehood Act of July 7, 1958, 72 Stat. 343, note following 48 

U.S.C. ch.2. 

Cook Inlet meets all of the requirements for Article 7 juridical bay status 

save one. It is too large. The inlet is clearly a well-marked indentation into 

the mainland that contains landlocked waters. Its waters meet the 

semicircle test of Article 7(2). However, its 47-mile mouth far exceeds the 

Convention’s 24-mile maximum. Article 7(4). 

For that reason the federal government did not recognize the whole of 

Cook Inlet as inland waters. Rather it insisted that its inland waters were 

limited by Article 7(5), which provides that “where the distance between the 

low-water marks of the natural entrance points of a bay exceeds twenty-four 

miles, a straight line shall be drawn within the bay in such a manner as to 

enclose the maximum area of water that is possible with a line of that 

length.” That line, according to the United States, lay well up the inlet in 

the area of Kalgin Island. There the government would draw a line from the 

mainland, to Kalgin Island and from the other side of that island to the 
122 Shore and Sea Boundaries 

opposite mainland. Together the line segments total 24 nautical miles and 

enclose a maximum water area in upper Cook Inlet.181 

Alaska admitted that Cook Inlet is too large to qualify as a juridical bay 

at its natural entrance points but contended that it is a historic bay and is, 

under Article 7(6), excused from meeting the juridical bay requirements. In 

1967 Alaska offered oil and gas leases to 2,500 acres of submerged lands 

lying more than 3 miles from shore in lower Cook Inlet. The federal 

government sued in the United States District Court for the District of 

Alaska to quiet its title to the lands being offered. 

This is the only instance, among what we refer to herein as the 

“tidelands cases,” in which legal proceedings were initiated by the 

government outside the Supreme Court. In its subsequent opinion the 

Court noted that “it would appear that the case qualifies, under Art. III, 

Sec.2, cl.2, of the Constitution, for our original jurisdiction . . . . We are not 

enlightened as to why the United States chose not to bring an original 

action in the Court.” United States v. Alaska, 422 U.S. at 186 n.2. 

In fact consideration was given to that course. But the Department of 

Justice was concerned that a tidelands issue that affected only a small 

portion of a single state’s coast line might not justify an Original action. 

Since the Supreme Court’s comment in the Cook Inlet decision, the 

government has gone directly to that Court in similar cases. 

But as to Cook Inlet it was a federal District Court judge who heard 

evidence in the first instance. He applied the criteria for historic bay status, 

already set out by the Supreme Court in United States v. California, 381 U.S. 

at 172 and United States v. Louisiana, 394 U.S. at 75 and 23-24 n.27, and 

concluded that Cook Inlet is indeed historic inland water and subject to the 

jurisdiction of the state. United States v. Alaska, 352 F.Supp. 815 (D.Ak. 

1972). The federal government appealed but the Ninth Circuit affirmed the 

trial court’s determination. United States v. Alaska, 497 F.2d 1155 (1974). 

The United States sought, and was granted, certiorari182 because, the 

Supreme Court said, “of the importance of the litigation and because the 

case presented a substantial question concerning the proof necessary to 

establish a body of water as a historic bay.” 422 U.S. at 187. 

The Supreme Court discussed the evidence in the case much as the 

District Court had, dividing it into three historic periods. First came the era 

of Russian sovereignty over Alaska. Here the District Court determined that 

181. Although the Convention speaks of “a straight baseline of twenty-four miles,” the Baseline 

Committee adopted the 2-segment line without explanation. Minutes of August 31, 1970. Clearly the federal 

position is neither “a line” nor is it “straight.” Nevertheless it does not appear to be inconsistent with the intent 

of the Convention’s drafters. We know of no international objection to the U.S. adaptation. A single, straight 

line would have given Alaska less inland water. 

182. Certiorari is, generally, the procedure by which the United States Supreme Court asserts its 

discretionary authority to review lower court decisions. 

Part One 123 

“Russia exercised sovereignty over the disputed area of Cook Inlet.” Id. at 

190.183 It based that conclusion on three findings: the existence of four 

Russian settlements on the shores of the inlet in the early 1800s; a Russian 

fur trader’s attempt to run off an English vessel with cannon fire from shore 

in 1786; and a ukase of Tsar Alexander I in 1821 that “purported to exclude 

all foreign vessels from the waters within 100 miles of the Alaska coast.” Id. 

None of these examples convinced the Supreme Court that Russia had 

exercised the necessary authority to acquire historic title. The settlements, it 

said, may indicate a claim to the land but say little about Russia’s authority 

over the vast water area of the inlet. Id. The fur trader’s cannon fire was 

apparently an act of a private citizen and as such, according to the Court, “is 

entitled to little legal significance.” Id. at 191.184 Finally, the Court noted 

that the imperial ukase of 1821 was vigorously protested by the United 

States and England and was quickly withdrawn. Id. at 191-192. According 

to the Supreme Court, the Russian period provided no evidence to support 

a historic water claim. 

Next the District Court had reviewed evidence of purported exercises of 

jurisdiction over Cook Inlet while Alaska was a United States territory. All 

involved fish and wildlife management. Two statutes, one prohibiting 

killing sea otters and the other prohibiting aliens from commercial fishing, 

applied in the waters of Alaska. Revised Statutes Sec. 1956 (1878) and the 

Alien Fishing Act, 34 Stat. 263 (1906). An Executive Order, No. 3752, was 

issued by President Harding in 1922 and regulated all commercial fisheries 

in southern Alaska, specifically including Cook Inlet. A third statute 

regulated commercial fisheries “in any of the waters of Alaska over which 

the United States has jurisdiction” and was implemented through 

regulations that also named Cook Inlet as falling within their reach. The 

183. Here the Court quoted from the District Court’s unpublished “findings and conclusions” (which 

were reproduced in the federal petition for certiorari at pages 21a-55a). 

184. In this context the Court noted that in later years “semiprivate corporations” were allowed to govern 

Alaska under the Tsars. However, these organizations had not reached their zenith at the time of the incident 

relied upon and no evidence was produced in the litigation to suggest that the fur trader involved was acting 

under governmental authority. For that reason the Court had “no occasion to consider whether the acts of a 

semi-private colonial corporation are to be given the same weight as the direct acts of a national government 

for purposes of establishing a claim to historic waters.” 422 U.S. at 191 n.10. 

The Court then seemed to reason that because the incident was consistent with the then accepted policy 

of claiming territorial waters within a cannon shot of the coast it was not evidence of an inland water claim. 

That, of course, would seem to be true and relevant to the issue. But what the Court actually said is that “the 

firing of cannon from shore was wholly consistent with the present position of the United States that the inland 

waters of Alaska near Port Graham are to be measured by the three-mile limit.” 422 U.S. at 191 [emphasis 

supplied]. Of course the “cannon shot rule” is understood to have been the basis for delimiting the territorial 

sea, not inland waters. See: 4 Whiteman, Digest of International Law (1965) at 60. In fact it was the United 

States which is thought to have first “translated” the range of a cannon shot into 1 marine league. Letter from 

Mr. Jefferson, Sec. of State, to Mr. Genet, the French minister, I American State Papers, For. Rel., 183. The 

authorities cited by the Court also discuss territorial water, not inland, claims. It seems most likely that the 

Court referred to inland waters inadvertently. The apparent misstatement does not affect the Court’s reasoning 

or conclusion. 
124 Shore and Sea Boundaries 

White Act, 43 Stat. 664 (1924). Finally, the areas regulated under that Act 

were charted as part of an agreement with Canada governing salmon fishing 

with nets by the citizens of both countries. This became known as the 

Gharrett-Scudder Line. 

The District Court found each of these actions to be evidence of an 

inland water claim to Cook Inlet. The Supreme Court began its review with 

a discussion of the threefold division of the sea. “Nearest to the nation’s 

shores are its inland, or internal waters. These are subject to the complete 

sovereignty of the nation, as much as if they were a part of its land territory, 

and the coastal nation has the privilege even to exclude foreign vessels 

altogether. Beyond the inland waters, and measured from their seaward 

edge, is a belt known as the marginal, or territorial sea. Within it the coastal 

nation may exercise extensive control but cannot deny the right of innocent 

passage to foreign nations. Outside of the territorial sea are the high seas, 

which are international waters not subject to the dominion of any single 

nation.” 422 U.S. at 196-197, quoting from United States v. Louisiana, 394 

U.S. 11, 22-23 (1969). 

The Court then noted that “the exercise of authority necessary to 

establish historic title must be commensurate in scope with the nature of 

the title claimed.” Id. at 197. That principle, it would seem, holds the key 

to all historic waters adjudications yet has probably not been sufficiently 

emphasized by subsequent litigators. Here the Court returned to its 

Louisiana precedent, reminding the reader that navigation regulations that 

allow innocent passage did not support an inland water claim because 

innocent passage is “a characteristic of territorial seas rather than inland 

waters . . . .” Id. With these guidelines at hand it turned to the state’s 

evidence. 

The Alien Fishing Act, it noted, was the only statute that treated foreign 

vessels differently than it did American vessels. It did not, however, include 

any language putting aliens on notice that lower Cook Inlet was included 

within its reach, nor was there any evidence of enforcement there more than 

3 miles offshore. As to the other fish and wildlife regulations, the Court 

found that they had been enforced in lower Cook Inlet but only against 

American vessels. “These incidents prove very little for the United States can 

and does enforce fish and wildlife regulations against its own nationals, 

even on the high seas.” Id. at 198.185 

The Gharrett-Scudder Line, which was adopted in an international 

agreement and governed the activities of both American and Canadian 

fishermen, was forwarded to the Canadian government “with express 

185. Citing 16 U.S.C. 781 (commercial sponging in the Gulf of Mexico); 16 U.S.C 1151 (fur sealing in the 

North Pacific); 16 U.S.C. 1372 (taking marine mammals on the high seas); and Skiriotes v. Florida, 313 

U.S. 69 (1941). 

Part One 125 

disclaimers that the line was intended to bear any relationship to the 

territorial waters of the United States . . . .” Id. at 196.186 

What is more, the Court said, coastal states often assert fisheries 

jurisdiction beyond their inland, or even territorial waters. Id. at 198-199. 

Citing Presidential Proclamation No. 2668, 59 Stat. 885 (1945) and 

Convention on Fishing and Conservation of the Living Resources of the 

High Seas, Art. 6, 17 U.S.T. 138, 141 (1966). 

In sum, the Court concluded that “the enforcement of fish and wildlife 

regulations, as found and relied upon by the District Court, was patently 

insufficient in scope to establish historic title to Cook Inlet as inland 

waters.” 422 U.S. at 197. “The routine enforcement of domestic game and 

fish regulations in Cook Inlet in the territorial period failed to inform 

foreign governments of any claim of dominion.” Id. at 200. 

Finally the Court reviewed evidence of Alaska’s alleged exercises of 

sovereignty over lower Cook Inlet since statehood. First the state argued 

that it had continued to enforce fisheries regulations as the federal 

government had during the territorial period. The Court disposed of that 

contention in one sentence, saying “since we have concluded that the 

general enforcement of fishing regulations by the United States in the 

territorial period was insufficient to demonstrate sovereignty over Cook 

Inlet as inland waters, we also must conclude that Alaska’s following the 

same basic pattern of enforcement is insufficient to give rise to the historic 

title now claimed.” Id. at 201. 

However, Alaska’s final evidence required more consideration. In 1962 

the state had arrested two Japanese vessels found fishing in Shelikof Strait. 

At least one of these was operating more than 3 miles from shore.187 They 

were charged with violating state fisheries regulations. Id. at 202. 

Interactions between the governments and the Japanese defendants 

were interesting. First, when Alaska learned in 1962 that the Japanese 

vessels were on the way to North America it asked the federal government 

to intervene and prevent their entry into Cook Inlet and Shelikof Strait. The 

United States took no action.188 The vessels and three captains were arrested 

186. The Court even pointed out that “the very method of drawing the fishery boundaries by use of 

straight baselines conflicted with this country’s traditional policy of measuring its territorial waters by the 

sinuosity of the coast.” 422 U.S. at 199, citing United States v. California, 381 U.S. at 167-169. 

187. Shelikof Strait is formed by the Alaska Peninsula on the north and Kodiak and Afognak Islands on 

the south (Figure 18, supra). It lies 75 miles to the southwest of Cook Inlet. According to the District Court 

the vessels “had apparently intruded into the southernmost portion of lower Cook Inlet near the Barren Islands 

for a few hours and then proceeded into the Shelikof Strait,” United States v. Alaska, 352 F.Supp. at 820, but 

neither it nor the Supreme Court indicated that they had been fishing in Cook Inlet. They were certainly not 

interfered with there by Alaskan officials. 

188. It should be noted that the United States Congress first imposed criminal penalties for fishing in our 

3-mile territorial sea in 1964, 16 U.S.C. 1801 et seq., and extended that prohibition to an additional 9-mile 

fisheries zone in 1966, 16 U.S.C. 1891 et seq. 
126 Shore and Sea Boundaries 

by the state and within four days released in return for a promise from their 

company that it “would not fish in the inlet or in the strait pending judicial 

resolution of the State’s jurisdiction to enforce fishing regulations therein.” 

Id. at 202. The Japanese government was not party to that agreement and 

formally protested the arrest. The court proceedings were dismissed with no 

determination as to the limit of state jurisdiction. The federal government 

took no position on that issue. 

The United States District Court, in the Cook Inlet case, seems to have 

placed great weight on the Shelikof Strait incident as an assertion of 

jurisdiction supporting historic inland water title. Again the Supreme Court 

was unconvinced. It noted that if the arrests were an exercise of sovereignty 

at all it was sovereignty over Shelikof Strait, not Cook Inlet 75 miles away. 

But the Court went on to test its adequacy even there. It concluded that the 

exercise of authority was not sufficiently unambiguous to serve as the basis 

of historic title to inland waters given the fact that the United States neither 

supported nor disclaimed the state claim. What is more, the Japanese 

government specifically rejected it. Id. at 203.189 

The Court reversed and remanded saying “in sum, we hold that the 

District Court’s conclusion that Cook Inlet is a historic bay was based on an 

erroneous assessment of the legal significance of the facts it had found.” Id. 

Yet the Court’s treatment of the Shelikof Strait incident is troubling. It 

seemed to accept the arrests as evidence of an inland water claim, at least by 

the state, saying that “to the extent that the Shelikof Strait incident reveals a 

determination on the part of Alaska to exclude all foreign vessels, it must be 

viewed, to be sure, as an exercise of authority over the waters in question as 

inland waters.” 422 U.S. at 202. And later, “Alaska clearly claimed the 

waters in question as inland waters, but . . . given the ambiguity of the 

Federal Government’s position, we cannot agree that the assertion of 

sovereignty possessed the clarity essential to a claim of historic title over 

inland waters.” Id. at 203. 

Earlier in the opinion the Court had emphasized that “the exercise of 

authority necessary to establish historic title must be commensurate in 

scope with the nature of the title claimed.” 422 U.S. at 197. It had then 

clearly distinguished between assertions of fisheries jurisdiction and 

assertions of sovereignty over inland waters and concluded that fisheries 

jurisdiction “frequently differs in geographic extent from boundaries 

claimed as inland or even territorial waters.” Id. at 198-199. Following that 

reasoning it concluded that historic inland water title to Cook Inlet could 

not be founded upon fish and game enforcement. 

189. The Court refused to acknowledge the Japanese defendants’ tentative agreement to stay out of the 

Strait as the acquiescence required by international law, saying “as we have already noted, the acts of a private 

citizen cannot be considered representative of a government’s position in the absence of some official license 

or other governmental authority.” Id. at 203. 

Part One 127 

The Shelikof Strait incident is legally indistinguishable. It may have 

been an indication of a fisheries claim in the territorial sea or beyond but, 

using the Court’s prior reasoning, it was not evidence of an inland water 

claim. The Court seems to give the state the benefit of the doubt when it 

states “to the extent that the Shelikof Strait incident reveals a determination 

. . . to exclude all foreign vessels” it must be viewed as an exercise of 

authority over inland waters. Id. at 202. But Alaska did not ever allege a 

“determination to exclude all foreign vessels,” as it clearly would have to do 

to support an inland water claim. It was concerned only with fishing. It 

asked for federal intervention when it learned that they were coming to fish 

and, getting no support, it arrested them itself – for fishing – not for passing 

through Shelikof Strait.190 If the Court was correct earlier in its opinion, that 

fisheries jurisdiction is not tantamount to an assertion of sovereignty, the 

Shelikof incident could have been dealt with as summarily as the state’s 

evidence of fisheries regulation during the territorial period had been.191 

Applying the United Nations’ criteria, as it has consistently done, the 

Court could have said: (1) neither the United States nor Alaska had 

exercised authority over lower Cook Inlet (or Shelikof Strait) commensurate 

in scope with the title claimed; (2) the Shelikof arrests, on a single day, April 

15, 1962, did not constitute a “continuous” exercise that could, by any 

stretch, amount to a “usage,” having occurred only five years before the 

litigation commenced; and (3) no foreign state acquiesced in the action, 

indeed the only state affected by it filed an immediate diplomatic protest. 

The Court’s failure to follow that course may provide grist for future historic 

water mills. 

Having lost its more extensive claim, Alaska agreed with the federal 

government’s 24-mile fallback line closing the inland waters of upper Cook 

Inlet at Kalgin Island. 

The Nome Pier Case 

The single issue before the Court in Number 118 Original, which was 

decided in 1992, had its genesis exactly 45 years earlier in United States v. 

California. In 1947 the Supreme Court had determined that the federal 

190. In its analysis of the territorial evidence the Court had said that “even a casual examination of the 

facts relied upon by the District Court in this case reveals that the geographic scope of the fish and wildlife 

enforcement efforts was determined primarily, if not exclusively, by the needs of effective management of the 

fish and game population involved.” There is nothing in the opinion to distinguish the regulations being 

enforced in Shelikof Strait. 

191. It would not be enough to say that the Shelikof incidents involved assertions of jurisdiction over 

foreign vessels while the territorial period provided no such example. As the Court had already said, a coastal 

nation is understood to have extraterritorial jurisdiction over fisheries with respect to both nationals and 

foreigners. 422 U.S. at 198-199. 
128 Shore and Sea Boundaries 

government, and not California, held paramount interests to the resources 

of the seabed seaward of the “coast line” of that state. That did not, 

however, resolve all controversy over the boundary that divided the parties’ 

interests. Special Master William H. Davis was appointed by the Supreme 

Court to recommend solutions to a number of questions regarding the 

location of that “coast line.” Among those was a disagreement as to whether 

artificial structures built seaward from the shore affect title to submerged 

lands. 

The federal government argued, before the master and the Court, that 

they are not. It contended that the United States held title to the submerged 

lands upon which such structures are built and does not lose that title 

merely because of their imposition upon its lands.192 California took the 

position that the Supreme Court’s pro-government decisions in California, 

Texas, and Louisiana rested on the national interest and responsibilities in 

the waters of the actual territorial sea, not the geographic area that may have 

once been territorial sea but is now upland.193 

The special master recommended adoption of the California position, 

justifying his conclusion with reasoning that eventually led to the Nome 

Pier controversy. He explained that “I have been fortified in this conclusion 

by two ancillary considerations: The first of these is that the United States 

has full control of the erection of any such artificial accretions, because of 

its control of navigable waters. I think it may be assumed that in the past 

the question of ownership of the lands, minerals and other things 

underlying these artificial accretions has not been taken into consideration 

by the United States in passing judgment upon whether the accretions will 

be permitted; but it seems clear that in the future that aspect of the matter 

can be, and probably will be, taken into account. I do not share the view of 

counsel for the United States . . . that this would be an undesirable situation. 

On the contrary, I think it would give opportunity for appropriate 

negotiations and agreement between the State and the United States at the 

time the artificial change is approved.” United States v. California, Report of 

the Special Master of October 14, 1952, at 45-46.194 

Of course the Submerged Lands Act was passed the following year. 

Having been granted the entire 3-mile belt, the exact location of California’s 

192. This action, we must remember, preceded the Submerged Lands Act so at the time the federal 

government held paramount rights to the seabed up to the coast. Structures built in the territorial sea were 

built on federal property. In that context the controversy was over lands “beneath” the artificial structures. 

Subsequent to passage of the Submerged Lands Act the same structures became base points from which the 3-

mile grant is measured. But the fundamental question is the same – do they constitute part of the coast line? 

193. The United States did not dispute that the territorial sea is measured from the artificial structures. 

194. The special master referred to the United States Corps of Engineers’ authority, under chapter 

425, Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. 403, to prohibit construction in the 

navigable waters. 

Part One 129 

coast line was suddenly unimportant.195 Consequently Mr. Davis’s Report 

lay dormant for a decade. Eventually technology allowed deep water oil and 

gas exploration, the coast line controversy was revived, and the Court 

reviewed Mr. Davis’s Report. It adopted the master’s recommendation on 

artificial structures and referred to his reasoning with approval, noting that 

“the effect of any future changes could thus be the subject of agreement 

between the parties.” United States v. California, 381 U.S. 139, 176 (1965). 

The Court specifically concluded that “arguments based on the inequity to 

the United States of allowing California to effect changes in the boundary 

between federal and state submerged lands by making future artificial 

changes in the coastline are met, as the Special Master pointed out, by the 

ability of the United States to protect itself through its power over navigable 

waters.” Id. at 177. 

It was such an agreement that gave rise to the Nome jetty litigation. 

Nome is a municipality of some 3,500 people on the Bering Sea, accessible 

only by sea, air, and dogsled. It has no natural harbor. In the 1980s it began 

planning for a substantial artificial port, including a jetty to extend seaward 

from the natural coast. Principles from the Convention on the Territorial 

Sea and the Contiguous Zone, adopted by the Supreme Court for purposes 

of the Submerged Lands Act, would recognize this jetty as part of the coast 

line. Thus, absent some basis for an exception to that general rule, a 

substantial area of federal submerged lands on the outer continental shelf 

would pass into state hands merely through construction of this state 

project. (Figure 19) But the jetty would be in the navigable waters and the 

project required Corps of Engineers approval. Alaska applied for a Corps 

permit. 

By this time the federal government had accepted the Court’s invitation 

in the California decision and adapted its permit review regulations to assure 

that coastal construction would not be approved without consideration of 

submerged lands consequences.196 Under those regulations the Alaska 

application was forwarded to the Department of the Interior and it objected 

to the issuance of a permit unless Alaska agreed that the existing offshore 

boundary would not be affected. 

The Corps adopted that recommendation and Alaska submitted a 

“conditional waiver” of submerged lands consequences, reserving its right 

195. The continental shelf off California is sufficiently steep that technology of the day did not permit 

exploration as far as 3 miles offshore. For that reason minor differences of opinion as to the location of the 

coast line had no practical significance. 

196. The specific regulation provides “(f) Effects on limits of the territorial sea. Structures or work 

affecting coastal waters may modify the coast line or base line from which the territorial sea is measured for 

purposes of the Submerged Lands Act and international law . . . . Applications for structures or work affecting 

coastal waters will therefore be reviewed specifically to determine whether the coast line might be altered. If it 

is determined that such a change might occur, coordination with the Attorney General and the Solicitor of the 

Department of the Interior is required before final action is taken.” 33 C.F.R. Sec. 320.4. 
130 Shore and Sea Boundaries 

Figure 19. Nome jetty, Alaska. The potential effect of the Nome jetty on 

Alaska's Submerged Lands Act boundary is illustrated. (After Joint Stipulation 

of Facts, U.S. v. Alaska, Number 118 Original, Appendix O) 

to challenge the Corps’ authority to condition its permits on such grounds. 

The permit was granted and the facility built. The parties understood that 

the waiver merely set the stage for judicial resolution of their differences 

when an actual boundary controversy arose. 

That opportunity presented itself within four years when the 

Department of the Interior announced plans to hold a lease sale offering 

exclusive rights to dredge for gold on submerged lands off the coast of 

Nome. Seven hundred and thirty acres of the offering were within 3 miles 

of the Nome jetty. Alaska protested that portion of the sale, on the basis of 

its conditional waiver, and the United States sought leave of the Supreme 

Court to initiate an Original action for resolution of the dispute. The 

request was granted. 

It was agreed that a single legal issue separated the parties and that issue 

could be resolved on agreed facts. Consequently no special master was 

required. The parties stipulated as to relevant facts and each submitted a 

summary judgment motion to the Court.197 

197. Interestingly, the sale brought no bids but the parties agreed that a controversy remained between 

them. The Court concluded that the matter was not moot. United States v. Alaska, 503 U.S. 569, 575 n.4 (1992). 

Part One 131 

Alaska argued, in the first instance, that the Rivers and Harbors Act 

authorizes the Corps to consider only a project’s effects on navigation in 

determining whether to issue a permit. Alternatively, it contended that 

federal-state boundary interests are clearly not relevant. The Court rejected 

both positions. 

It began its analysis by highlighting the breadth of the statute itself. 

Section 10 of the Rivers and Harbors Act (RHA) begins by prohibiting 

obstructions to navigation not authorized by Congress. It then prohibits 

the construction of any structure in waters of the United States except as 

authorized by the secretary of the army. 33 U.S.C. 403. This, the Court 

described as apparent “unlimited discretion to grant or deny a permit for 

construction of a structure such as the one at issue in this case.” United 

States v. Alaska, 503 U.S. 567, 576 (1992). It discussed a number of 

decisions in which it had read the Corps’ authority broadly, authorizing it 

to deny permits for reasons other than interference with navigability. Id. at 

577-580.198 

It also reviewed the Corps’ interpretation of its own authority. That 

history actually reflects a hesitation on the part of the Corps to regulate to 

the full extent of its authority as recognized by the Courts.199 But after 

substantial prodding from Congress the Corps, in 1968, officially amended 

its policy guidance on permit review to include consideration of “the effects 

of permitted activities on the public interest including effects upon water 

quality, recreation, fish and wildlife, pollution, our natural resources, as well 

as the effects on navigation.” 33 C.F.R. 209.330(a). Quoted at id. at 580-

581. Still, Congress urged the Corps to consider “all aspects of the public 

interest.” Id. at 581 [emphasis in original]. 

But the real turnaround in Corps thinking followed a decision in which 

the Fifth Circuit Court of Appeals concluded that the Corps had properly 

considered environmental factors in a permit application even though the 

project would not have adversely affected navigation. Zabel v. Tabb, 430 F.2d 

199 (5th Cir. 1970). Soon thereafter the Corps issued even more expansive 

criteria for permit consideration. The regulations in effect when the Nome 

jetty application was processed provide for a broad range of public interest 

considerations including: “conservation, economics, aesthetics, general 

environmental concerns, wetlands, historic properties, fish and wildlife 

values, flood hazards, floodplain values, land use, navigation, shore erosion 

and accretion, recreation, water supply and conservation, water quality, 

198. Among these were: United States ex rel. Greathouse v. Dern, 289 U.S. 352 (1933), United States v. 

Republic Steel Corp., 362 U.S. 482 (1960), and United States v. Pennsylvania Industrial Chemical Corp., 411 

U.S. 655 (1973). 

199. That hesitation appears to have been founded on an attorney general’s opinion which concluded 

that the Rivers and Harbors Act permitted the Corps to consider only navigation interests in its permit process. 

503 U.S. at 580, citing 27 Op. Atty. Gen. 284, 288 (1909). 
132 Shore and Sea Boundaries 

energy needs, safety, food and fiber production, mineral needs, 

considerations of property ownership, and, in general, the needs and 

welfare of the people.” 33 C.F.R. 320.4(a)(1)(1991). 

Given the breadth of the Rivers and Harbors Act itself and subsequent 

congressional and judicial interpretations, the Supreme Court held that the 

Corps had properly adopted these “public interest” factors in its permit 

process. 503 U.S. at 583. 

Nevertheless, the state contended, the regulatory provision that 

authorizes consideration of federal-state boundary consequences goes too 

far. First it argued that even if the Rivers and Harbors Act would 

countenance this result, the later Submerged Lands Act (SLA) had 

withdrawn the authority. Congress gave Alaska 3 miles of submerged lands 

measured from its coast line. The Supreme Court had said that harborworks 

are part of the coast line. The Corps of Engineers cannot override that result – 

or so the state reasoned. Id. at 584-587. 

But the Court concluded otherwise. The Corps, it answered, was not 

usurping authority by freezing the state’s SLA boundary. “What the Corps is 

doing, and what we find a reasonable exercise of agency authority, is to 

determine whether an artificial addition to the coastline will increase the 

State’s control over submerged lands to the detriment of the United States’ 

legitimate interests. If the Secretary so finds, nothing in the SLA [Submerged 

Lands Act] prohibits this fact from consideration as part of the ‘public 

interest’ review process under RHA Sec. 10. Were we to accept Alaska’s 

position, the Federal Government’s interests in submerged lands outside the 

State’s zone of control would conceivably become hostage to state plans to 

add artificial additions to its coastline.” Id. at 585-586. 

The Court then noted that the result would be the same adverse 

consequence with which the United States had expressed concern in the 

California case. “If Alaska’s reading of the applicable law were followed to 

its logical extreme, the United States would be powerless to protect its 

interests in submerged lands if a State were to build an artificial addition to 

the coastline for the sole purpose of gaining sovereignty over submerged 

lands within the United States’ zone, so long as the project did not affect 

navigability or cause pollution.” Id. at 586. The Court then quoted its own 

language from the California decision in which it had said “‘arguments 

based on the inequity to the United States of allowing California to effect 

changes in the boundary between federal and state submerged lands by 

making artificial changes in the coastline are met, as the Special Master 

pointed out, by the ability of the United States to protect itself through its 

power over navigable waters.’ 381 U.S., at 177.” It then concluded that 

“such ‘power over navigable waters’ would be meaningless indeed if we were 

to accept Alaska’s view that RHA Sec. 10 permitted the United States to 

Part One 133 

exercise it only when the State’s project affected navigability or caused 

pollution.” 503 U.S. at 587. “[O]ur opinion in California sanctioned the 

mechanism exercised by the Secretary in this case.” Id. at 587. The 

Submerged Lands Act did not reduce the Corps’ Rivers and Harbors 

Act authority. 

Alaska next argued that adoption of the federal position would result in 

two offshore boundaries, one for international purposes and another for 

domestic, in violation of the Court’s articulated goal of establishing a single 

line for both purposes. United States v. California, 381 U.S. at 165. The 

Court explained that its goal had been to give “definiteness and stability” to 

the Submerged Lands Act, which can be done without a single boundary. Id. 

at 588-590. What is more, as the Court pointed out, “variations between the 

international and federal-state boundaries are not uncommon.” Id. at 589 

n.11. Good examples are the Submerged Lands Act amendment that 

provides that its boundaries will be fixed upon their adoption in a Supreme 

Court decree, and the United States’ 1988 claim of a 12-mile territorial sea. 

Id. The state’s argument did not persuade. 

Finally, the state contended that federal rights in the outer continental 

shelf are not a proper component of the term “public interest.” “It is 

untenable,” wrote the Court, “to maintain that the legitimate property 

interests of the United States fall outside the relevant criteria for a decision 

that requires the Secretary to determine whether the issuance of a permit 

would affect the ‘public interest’.” Id. at 590. What is more, the Court 

reasoned, “[i]t would make little sense, and be inconsistent with Congress’ 

intent, to hold that the Corps legitimately may prohibit construction of a 

port facility, and yet to deny it the authority to seek the less drastic 

alternative of conditioning issuance of a permit on the State’s disclaimer of 

rights to accreted submerged lands.” Id. at 591. 

The Supreme Court was unanimous in its opinion. The solution to 

which it had alluded in the California opinion had been employed and 

found appropriate. The federal government could consider its own property 

interests in the outer continental shelf in evaluating a proposal for coast 

line modification.200 

The Dinkum Sands Case 

The most recent of the tidelands cases resolved state-federal boundaries 

along 500 miles of Alaskan shoreline on the Arctic Ocean. The controversy 

200. Some have contended that by refusing to issue a construction permit without a waiver of submerged 

lands rights the federal government engages in something akin to extortion. That contention ignores the fact 

that the state is seeking the benefits of a federal permit and a consequent increase in its land area at the expense 

of the national citizenry. The United States, in contrast, seeks to accommodate the state’s interests in the 

construction project while retaining the status quo with respect to property lines. The equities would seem to 

favor the federal position. 
134 Shore and Sea Boundaries 

began when Dr. Erk Reimnitz, an Interior Department expert on the Arctic, 

was perusing maps of an upcoming offshore oil and gas sale. The maps 

depicted an island, labeled “Dinkum Sands,” with a 3-mile belt of state 

waters surrounding it. If such an island existed, the state could properly 

claim those waters. But Dr. Reimnitz, who spent most summers in the area, 

questioned its existence. 

State and federal officials discussed the matter but could not agree. On 

May 30, 1979, the United States filed a Motion for Leave to File Complaint 

in the Supreme Court. Alaska did not object and Number 84 Original 

began. The Court appointed J. Keith Mann, Academic Dean at Stanford Law 

School, as its special master. What started as a controversy over the status of 

Dinkum Sands expanded to include 14 additional issues which, when 

decided, would resolve all anticipated Arctic tidelands questions between 

the two sovereigns from Icy Cape on the west to the Canadian border on 

the east. 

The issues were divided for trial. Dean Mann conducted evidentiary 

hearings in 1980, 1984, and 1985. Extensive briefing followed each 

hearing. In 1996, the special master submitted his exhaustive Report to the 

Court. United States v. Alaska, Number 84 Original, Report of the Special 

Master of March 1996. The Report, consisting of 565 pages, is believed to 

be the longest in any Supreme Court Original action. The controversy 

included an array of coastal boundary issues, including the location of the 

low-water line on both natural and artificial coasts, the seaward limit of 

inland waters, and the boundaries of federal reserves that created exceptions 

to Alaska’s Submerged Lands Act grant. For purposes of this discussion we 

will divide the issues as the master did. 

THE “COAST LINE” ISSUES. The Submerged Lands Act’s “coast line” is 

made up of two components – the low-water line along the shore and the 

seaward limit of inland waters, such as bays, rivers, and harbors. Number 

84 Original included questions in both categories, and subsets of each. We 

deal first with the low-water line issues. 

Dinkum Sands. Although it eventually encompassed numerous and 

varied legal issues, Number 84 Original continues to be known as “the 

Dinkum Sands case.” The Dinkum Sands issue, which prompted the 

litigation, presented what were probably the most interesting and novel 

questions for resolution. 

Article 10 of the Convention defines an island as “a naturally formed 

area of land, surrounded by water, which is above water at high tide.” It 

then provides that “the territorial sea of an island is measured in accordance 

with the provisions of these articles.” Thus, under Article 3, the territorial 

sea is measured from the low-water line of islands and, pursuant to United 

States v. California, 381 U.S. 139 (1965), so are Submerged Lands Act grants. 

Part One 135 

But the parties could not agree whether Dinkum Sands fit the Convention’s 

definition of an “island.”201 

Dinkum Sands is part of a chain of barrier islands and shoals that 

parallel the Arctic coast of Alaska. The chain is mostly made up of fullfledged islands, like Cross Island to the west and Narwhal Island to the east 

of Dinkum Sands.202 But Dinkum Sands itself is often underwater, with 

small areas that occasionally arise above the sea. The parties could not agree 

whether Alaska’s submerged lands should be measured from these features. 

Alaska set out to prove that they are islands and should be included in its 

coast line. The federal government argued the contrary, contending that 

Dinkum Sands is merely part of its outer continental shelf. 

The evidence took a number of directions. The United States offered a 

cartographic history of the area. Its expert historic geographer, Dr. Louis 

DeVorsey, assembled charts and maps going back to 1823, interpreted them 

for the special master, and concluded that until 1949 “no geographic feature 

corresponding to Dinkum Sands appeared on any map . . . .” Report at 240. 

Dr. DeVorsey emphasized a 1919 survey by Arctic geologist Ernest de K. 

Leffingwell in which Leffingwell mapped the island chain and, in the area 

of Dinkum Sands, noted not an island but a minimum depth of 13.5 feet. 

Report at 241. Alaska’s witnesses contended that certain of the early maps 

show a “feature” in the area of Dinkum Sands but they could not say for 

certain whether an island, low-tide elevation, or submerged shoal was being 

depicted. As to Leffingwell’s survey, they argued that poor visibility may 

have hampered his observations. In any event, the Leffingwell maps formed 

the basis for official federal nautical charts until 1950. 

The first uncontested evidence of Dinkum Sands’ existence above water 

came in 1949 when a United States Coast and Geodetic Survey team 

happened on the feature while doing a hydrographic survey of the area. A 

member of that team, (then Ensign, later Admiral) Harley Nygren, testified 

for Alaska. Admiral Nygren introduced a picture of the formation and 

described it as “hundreds of yards long and hundreds of feet wide” and at 

least 3 feet above mean high water. Report at 231. Ensign Nygren’s survey 

led to the depiction of Dinkum Sands as an island on official charts 

published in the early 1950s.203 

201. Low-tide elevations, that is features which appear above water at low-tide but not high-tide, may also 

have territorial seas and Submerged Lands Act significance but “where a low-tide elevation is wholly situated at 

a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea 

of its own.” Convention, Art. 11(2). The parties agreed that Dinkum Sands lies more than 3 nautical miles 

from the mainland or nearest island. Thus, to have relevance here it had to meet the “island” definition. 

202. Dinkum Sands itself is centered at 70 degrees, 25.5 minutes north latitude and 147 degrees, 46 

minutes west longitude, just northeast of Prudhoe Bay, Alaska. 

203. The survey team also had the honor of naming the feature after its smallboat, the Fair Dinkum. 
136 Shore and Sea Boundaries 

However, subsequent visits evidence the fickle nature of the feature. In 

1955 the USS Merrick traversed the area and reported that the island, and its 

survey target, were “not there.” Report at 242. In 1976 a joint Coast 

Guard/National Ocean Service team sent to investigate all charted 

landmarks along the Arctic coast reported, with respect to Dinkum Sands, 

“Couldn’t find island.” Report at 243. The 1955 and 1976 “non-sightings” 

led to changes in the official charts. Thereafter, Dinkum Sands was depicted 

as a low-tide elevation and not as an island. 

Despite that correction, when the federal government began publishing 

charts of its marine boundaries in 1970, Dinkum Sands was treated as an 

island and a 3-mile belt was constructed around it. That occurred through 

an unusual combination of circumstances. The federal Coastline 

Committee charged with depicting our maritime boundaries works from 

official Coast and Geodetic Survey (now NOAA) charts and assumes that 

they accurately reflect the facts. However, acknowledging that the charts 

may be wrong or simply outdated, the group will accept other information 

when it is thought to be more accurate. It happens that when the boundary 

was being delimited along the Arctic coast, Admiral Nygren was on the 

Committee. He recounted his experience at Dinkum Sands and convinced 

the group that it was an island, and not a low-tide elevation as shown on 

the most recent edition of the chart. Hence the construction of its 

3-mile belt. 

When the Department of the Interior first published leasing maps of the 

area in 1979, it properly adopted the Committee’s interpretation and 

treated Dinkum Sands as an island, conceding its 3-mile belt to the state. 

Only then was Dr. Reimnitz made aware of the federal position, which he 

believed from his own observations to be incorrect. He too testified before 

the master. 

In addition to the extensive map history, numerous witnesses testified as 

to their personal knowledge of Dinkum Sands. These included Admiral 

Nygren and Dr. Reimnitz, as previously noted, along with an array of lay 

and expert witnesses. Most interesting were Inupiat natives who live and 

work along the north slope. Some testified in their native tongue, through 

an interpreter. The eye witness testimony can be fairly summarized by 

saying that the formation is sometimes observed above the water level and 

sometimes not. With the exception of the 1949-1950 survey, observations 

were generally not tide controlled, that is, one cannot say with confidence 

that even when submerged the feature may not have been above the mean 

high water datum and even when visible it may not have been below that 

datum. In an effort to provide a more up-to-date scientific conclusion, the 

parties agreed to conduct a joint survey of the formation. 

The joint monitoring project, conducted in 1981, consisted of two 

independent parts. The parties contracted with a private engineering firm to 

Part One 137 

survey Dinkum Sands and prepare topographic profiles of the feature. At 

the same time they employed the National Ocean Survey (now the National 

Ocean Service) to determine the mean high-water datum in the area.204 

Only when both parts were completed and combined could one determine 

whether or not Dinkum Sands stood above mean high water. 

The engineering contractor measured the high points on Dinkum Sands 

(relative to an assumed elevation of a benchmark) in March, June, and 

August of 1981. The Arctic Ocean is typically iced over nine months of the 

year; 1981 was no exception. The March survey was conducted by laying out 

a grid over the location of the formation, drilling through 10 feet of pack ice 

until reaching gravel, and measuring the elevation of the top of the gravel.205 

In June the ice was beginning to melt and there were visible areas of gravel. 

Measurements were taken from the five highest of those areas. In August 

there was nothing visible above water level but the apparent highest point 

was located beneath the water and a measurement taken. Report at 253-

254. The highest point located in the three surveys measured 51.82 feet 

relative to the assumed elevation of the benchmark placed on Dinkum 

Sands. Report at 254. 

Ordinarily the National Ocean Service would only have used accepted 

mean values determined over a specific 19-year period from local tidal 

observations and calculate a high-water datum for Dinkum Sands. 

Unfortunately, there are no tide stations in the American Arctic that have 

been in operation that long. As an alternative, the participants in the joint 

monitoring project put in tide stations at Dinkum Sands and the adjacent 

Cross and Narwhal Islands. A year of data was collected at Cross Island, 

four months from Dinkum Sands, and one month from Narwhal. The 

National Ocean Service computed the monthly averages at Cross Island, 

averaged them to derive a first reduction mean high water for the year, then 

adopted that value as the best available data at that time. It then calculated 

a corresponding value for Dinkum Sands by comparing the four months of 

simultaneous readings from those two stations. Members of the joint 

monitoring project requested that the National Ocean Service determine 

how closely this value might approximate a full 19 years of observations. 

The Service conducted similar statistical analyses using other Alaskan and 

Canadian tide stations with long-term histories. It concluded that its 

estimates were accurate to plus or minus 2.47 inches, with 95 percent 

probability. Report at 250. Mean high tide at Dinkum Sands was computed 

to be 51.84 feet with respect to the benchmark on Dinkum Sands having an 

assumed elevation of 50 feet. Report at 251. 

204. The parties contributed equally to the $2.5 million cost of the project which, although expensive, 

amounted to less than one percent of the proceeds accumulated during the litigation from the belt surrounding 

Dinkum Sands. 

205. The gravel was also excavated and examined to determine the ratio of its soil/ice content. Report at 253. 
138 Shore and Sea Boundaries 

When results of the topographic survey and tidal analysis were 

combined, the joint survey indicated that during none of the three 

observations did the highest point on Dinkum Sands rise above mean high 

water. But, the highest point in the June survey was only .02 feet below, and 

within the National Ocean Service’s error band for mean high water. 

(Figure 20) 

Figure 20. Estimated mean high-water datum superimposed on the observed high 

points of Dinkum Sands. (From the Report of Special Master J. Keith Mann, Figure 5.2) 

The parties had not stipulated that the results of the joint survey would 

be accepted for purposes of resolving the Dinkum Sands issue and each 

questioned it on different bases. 

Alaska attacked the accuracy of the mean high-water calculation. An 

impressive array of expert witnesses was offered by the state. Alaska 

contended, first, that the National Ocean Service failed to take account of 

“trend” in sea level change. Its witnesses from Scripps Oceanographic 

Institute explained that globally there is known to be an upward “trend” in 

sea level. If that is the case at Dinkum Sands, it might have to be taken into 

consideration. Federal witnesses from the National Ocean Service 

responded that although there is a global trend, local trends may be in the 

opposite direction, which is often the case in Alaska. The master could find 

no basis for concluding that there is a trend at Dinkum Sands in either 

direction and determined that the mean high-water calculation should not 

be amended on that basis.206 

206. This simplification of the scientific evidence and the master’s analysis does a grave injustice to both. 

A more thorough discussion is found at pages 248 through 274 of Dean Mann’s Report. 

Part One 139 

Next, Alaska contended that the National Ocean Service should have 

accounted for abnormal weather conditions at the time of the study, 

resulting in unusually high water levels. The state’s experts offered an 

elaborate statistical model through which differences in air pressure 

between the study period and a 30-year average dictated a reduction in the 

mean high-water value of .06 foot. The special master concluded that 

because such an adjustment would still not put Dinkum Sands above the 

datum he need not decide whether it should be adopted. Report at 264. 

Finally, Alaska attacked the error band calculated by the National Ocean 

Service, arguing that it should extend farther above and below the calculated 

value for mean high water. The master pointed out that it is the datum itself 

that is critical, not the error band, and this proposed alteration would have 

no effect on that datum. Report at 266. 

For its part, the United States questioned the topographic survey, in 

effect arguing that the high points as measured should be discounted to 

properly reflect the elevation of the “naturally formed area of land.” The 

parties agreed that the elevation of Dinkum Sands changed throughout the 

ice-free season and from year to year. The federal side relied on Dr. 

Reimnitz’s observation that Dinkum Sands is not composed entirely of 

“land” but includes up to 50 percent ice that melts through the summer, 

causing the typical collapse of Dinkum Sands below water level by the fall. 

Report at 253. The United States argued that the observed heights of 

Dinkum Sands should be discounted to account for this “non-land” 

attribute. In addition, it contended that the highest observations recorded 

in the survey, in June of 1981, did not represent the surface of the feature at 

all, but were merely debris excavated during the March 1981 survey and left 

on top of the ice pack. 

The special master determined that under the circumstances, subsurface 

ice should be treated as land, rejecting part of the federal position. 

However, he acknowledged the typical downward movement of the feature 

during open water, noting one example of a 2.1-foot drop during a single 

season. Report at 281. From that he emphasized that late summer 

observations are “an essential step in obtaining a fair picture of the height 

of Dinkum Sands.” Report at 275. 

Finally, the United States made a legal argument that Dinkum Sands 

does not qualify for island status under Article 10. It is undisputed that the 

Dinkum Sands is, at minimum, a relatively large shoal, portions of which 

sometimes appear above water level. Equally uncontested is the fact that its 

“high points” migrate horizontally around the shoal. Thus, if Dinkum 

Sands is an island, it is an island that moves both vertically and 

horizontally. The United States contended that Article 10 does not include 

such fickle features within the definition of islands. 
140 Shore and Sea Boundaries 

The government put on Dr. Clive Symmons, an international expert in 

the law of islands, to support its position.207 Dr. Symmons surveyed the 

history of Article 10 and concluded that international law does not 

countenance an “ambulatory island.” Report at 290. The special master 

agreed, concluding that Article 10 requires that a feature be “at least 

‘generally,’ ‘normally,’ or ‘usually’” above water at high tide to qualify as an 

island. Report at 309. He found that “Dinkum Sands is frequently below 

mean high water and therefore does not meet the standard for an island.” Id. 

In sum, the master determined that Dinkum Sands is not an island 

under Article 10. It would not, therefore, be surrounded by a 3-mile belt of 

state submerged lands. 

Alaska took exception and the Supreme Court reviewed the issue. It 

agreed with the master’s conclusion but seems to have gone farther in 

emphasizing that the drafters of the Convention intended to include as 

islands only those features that are permanently above high tide except in 

abnormal circumstances. United States v. Alaska, 521 U.S. 1, 27 (1997). The 

Court pointed out that the problem of “abnormal circumstances” is 

resolved here by our definition of “high tide” as mean high water, a 

calculation that already accounts for anomalies in water levels. Id. It 

concluded that “[e]ven if Article 10(1)’s drafting history could support 

insular status for a feature that slumps below mean high water because of 

an abnormal change in elevation, it does not support insular status for a 

feature that exhibits a pattern of slumping below mean high water because 

of seasonal changes in elevation.” Id. [emphasis in original]. Dinkum Sands 

is not an island. 

A second low-water line issue centered on a man-made structure on 

Alaska’s Arctic coast. 

ARCO Pier. ARCO pier is a substantial jetty extending seaward from the 

mainland near the northwestern headland of Prudhoe Bay. It was 

constructed in three phases. The second phase, at issue here, was built in 

the late fall of 1975. The Alaska pipeline was under construction when 

barges carrying equipment needed to begin petroleum production became 

trapped in the ice and could not be unloaded. ARCO asked the Corps of 

Engineers for permission to extend its existing dock to the stranded barges. 

A permit was granted and the controversial addition was completed. But 

the parties could not agree on whether the structure extends Alaska’s 

offshore rights. 

The Submerged Lands Act grant is measured, in part, from “the low 

water line along that portion of the coast which is in direct contact with the 

207. Hours before Dr. Symmons was to leave England to appear at the trial in Palo Alto, Alaska moved 

to exclude his testimony on the ground that he would be giving evidence on law, not facts, a proposition 

generally not allowed in American courts. The special master noted the precedents for permitting testimony 

on international law in the tidelands cases, and permitted his appearance. 

Part One 141 

open sea . . . .” 43 U.S.C. 1301(c). Congress did not indicate whether it 

intended the use of artificial as well as natural features. However, the Court 

has long since adopted the principles of the Convention on the Territorial 

Sea and the Contiguous Zone, 15 U.S.T. 1606, for purposes of filling 

definitional gaps in the Act. United States v. California, 381 U.S. 139, 

165 (1965). 

The Convention provides guidance on this issue. Its Article 8 reads: “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.” What is more, the Court had 

considered the issue in its decision in United States v. California, 381 U.S. at 

176. There the Court adopted its special master’s recommendation that 

artificial extensions should be treated as part of the coast line. The Court 

rejected the government’s argument that federal interests would then be at 

the mercy of the states, who might extend their coastlines with impunity. 

The Court reasoned that any such fear was unfounded because of the United 

States’ ability “to protect itself through its power over the navigable waters.” 

Id. at 177. 

That “power” devolves from the prohibition against construction in 

navigable waters without a permit from the Corps of Engineers. As a result 

of the California decision, the Corps amended its regulations to provide that 

before the issuance of a permit for any structure that might modify the coast 

line, the army must coordinate with the Department of the Interior and the 

attorney general. 33 C.F.R. Sec. 320.4(f)(1998). That coordination provides 

an opportunity for recommendations that a permit that would result in a 

reduction of federal lands be denied, or that the state involved be asked 

for a waiver of Submerged Lands Act consequences before the permit 

is granted.208 

The Corps typically follows its regulation, notifies the Interior 

Department, and awaits state waivers before issuing such permits. With the 

ARCO pier extension it did not, probably through oversight in a rush to 

rescue the icebound machinery before the Arctic winter set in. 

The United States contended that the ARCO pier should not be 

considered part of the coast line for two reasons — because the Convention 

recognized only “permanent harbour works,” and because the Corps’ own 

regulation was violated in its issuance. The government pointed out that the 

permit itself reserved to the Corps the right to require its removal. No one 

disputed the fact that the obligation to coordinate with the Departments of 

the Interior and Justice had been ignored. 

208. Alaska attacked the legality of such waivers in United States v. Alaska, 503 U.S. 569 (1992). There the 

Supreme Court held that the potential loss of federal outer continental shelf lands was a matter of public 

interest and properly considered by the Corps in reviewing a permit application. 
142 Shore and Sea Boundaries 

The special master was not convinced. He pointed out that standard 

definitions of “permanent” meant something other than “temporary” but 

did not necessarily mean “forever” or “perpetual.” Report at 321, citing, 

inter alia, Black’s Law Dictionary. He noted that ARCO intended that its use 

be long-range or indefinite. As to the failure to follow the regulatory 

requirement for coordination, the master concluded that there was no 

necessary violation. He cited provisions of the Trans-Alaska Pipeline 

Authorization Act (TAPS), which compelled the issuance of federal permits 

“necessary for or related to” the operation of the pipeline system and 

authorized the waiver of “procedural requirements . . . .” 43 U.S.C. 

1652(b)-(c). And, although he could find no evidence that the Corps relied 

upon TAPS as authority for bypassing the Department of the Interior, he 

noted that the agency action was entitled to a presumption of legality.209 

Finally, the master recounted the Supreme Court’s acceptance of an 

unauthorized spoil bank along the Louisiana coast as part of the coast line. 

United States v. Louisiana, 394 U.S. 11, 41 n.48 (1969). 

The master recommended a finding that the ARCO pier is part of the 

coast line of Alaska from which the Submerged Lands Act grant is measured. 

The United States took no exception. 

INLAND WATER CLOSING LINES. The “coast line” is, of course, made 

up of closing lines across the mouths of inland water bodies as well as the 

low-water line along the open coast. The parties disagreed on the existence 

or location of a number of such closing lines. 

Southern Harrison Bay. Southern Harrison Bay is a water body that 

extends, roughly, from 151 to 152 degrees west longitude on the Arctic coast 

of Alaska. See Figure 21 infra. In its entirety the feature is too large to 

qualify as inland waters.210 It happens that the feature is divided, almost in 

half, by a peninsula known as Atigaru Point. The parties agreed that the 

portion of Harrison Bay that lies northwest of Atigaru Point forms a separate 

juridical bay and is, therefore, inland water and subject to state 

jurisdiction.211 

The issue here involved the southern portion of Harrison Bay. Alaska 

contended that it, like the northwestern portion, qualifies separately as a 

juridical bay and is inland water belonging to the state. The United States 

disagreed, arguing that a bulge in the mainland in the middle of the 

southern area prevents the waters seaward from being “landlocked.” 

209. Citing Citizens to Preserve Overton Park, Inc., v. Volpe, 401 U.S. 402, 415 (1971). 

210. Article 7(4) of the Convention limits the length of bay closing lines to 24 nautical miles. A closing 

line between the natural entrance points for all of Harrison Bay would measure approximately 33 nautical miles. 

211. A “juridical bay” is a water body which qualifies, under Article 7 of the Convention, as inland water 

solely because of its geography. 

Part One 143 

Although the Convention is quite specific in describing juridical bays, 

no two geographic areas are identical and each controversy over juridical 

bay status raises questions never before litigated.212 The Convention defines 

a bay as a “well-marked indentation whose penetration is in such 

proportion to the width of its mouth as to contain landlocked waters and 

constitute more than a mere curvature of the coast. An indentation shall 

not, however, be regarded as a bay unless its area is as large as, or larger than, 

that of the semi-circle whose diameter is a line drawn across the mouth of 

that indentation.” Article 7(2). 

Two issues arose. Although the parties agreed that southern Harrison 

Bay meets the semicircle test, they did not agree on whether the initial 

provision in the Convention’s definition provides another element that 

must be separately met. Nor did they agree on the proper means of 

determining the ratio between the width of mouth and depth of 

penetration. 

On the first question, Alaska contended that any indentation that meets 

the semicircle test is, ipso facto, a juridical bay. The United States took the 

position, as it had in prior litigation, that Article 7(2) provides two distinct 

criteria that must be separately met for juridical bay status. 

Alaska conceded that the Supreme Court had considered, and rejected, 

its position in two previous Original actions.213 But the state contended that 

in those cases the parties had not brought the full history of Article 7(2) 

before the Court. The parties here remedied any such deficiency. A 

substantial history was put before Special Master Mann through the 

testimony of experts and documentary evidence. He thoroughly reviewed it 

all, Report at 186-199, and concluded that the history of Article 7(2) 

supports the Court’s earlier conclusions. 

The first sentence of Article 7(2) imposes requirements in addition to 

those of the semicircle test. That is, “a bay is a well-marked indentation 

whose penetration is in such proportion to the width of its mouth as to 

contain landlocked waters . . . .” 

As noted earlier, and readily apparent on charts of the area, the 

mainland coast in the center of the area is convex, approaching the closing 

line advocated by the state, not receding from it to create obviously 

landlocked waters. On either side of that coast are subsidiary indentations 

that the parties agree would separately qualify as Article 7 bays. The United 

212. Other tidelands cases in which juridical bay status has been contested are: United States v. Maine 

(Massachusetts Boundary Case) 475 U.S. 89 (1981); United States v. Maine (Rhode Island and New York Boundary 

Case) 469 U.S. 504 (1985); United States v. Florida, 425 U.S. 791 (1976); United States v. Louisiana (Alabama and 

Mississippi Boundary Cases) 470 U.S. 93 (1985); United States v. Louisiana, 394 U.S. 11 (1969); and United States 

v. California, 447 U.S. 1 (1980). 

213. United States v. Louisiana, 394 U.S. 11 (1969) (East Bay and Ascension Bay) and United States v. Maine 

(Rhode Island and New York Boundary Case), 469 U.S. 504 (1985) (Long Island Sound). 
144 Shore and Sea Boundaries 

States argued that these subsidiary bays should be disregarded in evaluating 

whether the greater area is more than a “mere indentation” into the coast. 

The special master recommended otherwise. He noted that both parties had 

included the subsidiary bays for purposes of their semicircle test 

measurements and reasoned that “[s]urely all of the tests should be applied 

to the same area.” Report at 203. 

Having made that determination, the master turned to analyzing the 

ratio of penetration to width of mouth. The parties agreed on the length of 

Alaska’s proposed closing line, the “width of mouth” factor. They did not 

agree on how penetration should be measured. 

Four possible methods were suggested. First, a perpendicular might be 

constructed from the midpoint of the agreed-upon closing line to the 

mainland coast. Second, a perpendicular could be drawn from any point 

on the closing line to the point of deepest penetration within the 

indentation. Next, one might construct the longest possible straight line 

from any point on the closing line to the head of the bay.214 Finally, a 

segmented line could be constructed from the point of deepest penetration 

to the closing line. Report at 205-206. (Figure 21) 

Article 7’s reference to a semicircle provides a beginning point for any 

analysis of penetration ratios. Because a semicircle is understood to be the 

minimum indentation to qualify as a bay, we can assume that a ratio of 1:2 

(radius/diameter) is acceptable. The special master applied ratios calculated 

by the expert witnesses to various other indentations that have been 

accepted by the Court and the federal government, including other “doubleheaded bays.”215 He also calculated angles of internal coastline exposure to 

the open sea and compared other recognized bays. Following his usual 

thorough review, the master concluded that southern Harrison Bay meets all 

of the tests for juridical bay status. As a consequence, Alaska gains 

approximately 6 square miles of inland water and 20 square miles of 

offshore submerged lands. The United States did not take exception to 

his recommendations.216 

The Effect of Islands on the Coastline. The geography of Alaska’s Arctic 

coast created one of the most difficult questions before the special master. 

214. The latter is described as “the most logical method” for “determining true penetration of the water 

into the land.” Hodgson & Alexander, Towards an Objective Analysis of Special Circumstances. Dr. Hodgson was 

geographer of the Department of State and served as expert witness to the United States in a number of 

tidelands cases. 

215. The term “double-headed bay” refers to an indentation, such as southern Harrison Bay, which has a 

prominent headland protruding into the middle of the indentation and forming two subsidiary bays. 

Although the term does not come from the Convention, it has been used to describe a number of indentations 

like Harrison Bay. 

216. On December 17, 1997, the Committee on the Delimitation of the United States Coastline reviewed 

the special master’s recommendation and determined to alter the official international position of the United 

States to conform. That Committee was formed in 1970 as a committee of the Inter-Agency Task Force on the 

Law of the Sea to coordinate federal activities involving the limits of the United States’ maritime jurisdiction. 

Part One 145 

Figure 21. Alternative methods for measuring penetration. 

Much of that coast is protected by chains of barrier islands that lie from as 

little as a few hundred yards to as much as 10 miles offshore. (Figure 22) 

Alaska argued that the submerged lands between these islands and the 

mainland belong to it, grounding its contention on three separate theories. 

The United States took the contrary view, arguing that any areas more than 

3 nautical miles from the mainland and any island are federal. 

The state’s alternative legal theories are discussed separately. 

THE “IMPERMISSIBLE CONTRACTION” ARGUMENT. Article 4 of the Convention 

provides that in geographic circumstances such as those along the north 

slope, the coastal nation may connect islands with a series of “straight 

baselines,” enclosing all waters to the landward as inland.217 The operative 

provision, for our purposes, is “may.” Because the Supreme Court first 

adopted the Convention for implementing the Submerged Lands Act, a 

number of states have argued that Article 4 straight baselines should be 

used. Report at 46. The Court has consistently held that the federal 

government could not be forced by the states to adopt this optional method 

of coast line delimitation. At the same time, it has left the door slightly ajar 

for the states to continue the contention. In United States v. California the 

Court ruled that “California may not use such baselines to extend our 

international boundaries beyond their traditional international limits 

against the expressed opposition of the United States . . . .” United States v. 

217. This method of coastline delimitation was approved by the International Court of Justice in the Fisheries 

Case. (U.K. v. Nor.), [1951] I.C.J. Rep. 116. It was first codified in Article 4 and has since been adopted by more 

than 60 countries. Roach and Smith, United States Responses to Excessive Maritime Claims, 2d ed., 1994 at 75. 
146 Shore and Sea Boundaries 

Figure 22. North coast of Alaska. Barrier islands off the north coast of 

Alaska, such as those illustrated here, were said by the state to enclose 

inland waters. (After the Report of Special Master J. Keith Mann, Figure 3.2) 

California, 381 U.S. 139, 167 (1965). But, the Court went on to suggest that 

a federal effort to alter its international position to gain advantage in 

tidelands litigation would, likewise, be “highly questionable.” Id. at 168. 

The issue arose again in United States v. Louisiana where the Court 

allowed Louisiana an opportunity to prove that the federal government had 

maintained a “consistent official international stance” in its use of straight 

baselines and, if proven, “it arguably could not abandon that stance solely 

to gain advantage” in the litigation. Louisiana Boundary Case, 394 U.S. 11, 

74 n.97 (1969).218 

Alaska accepted the Court’s invitation in the California and Louisiana 

decisions and set out to establish that the United States had employed a 

consistent international policy of enclosing waters landward of certain 

218. Neither California nor Louisiana was able to make the necessary showing and neither state has its 

Submerged Lands Act grant measured from straight baselines. 

Part One 147 

island chains from 1903 through its adoption of the Convention, and 

beyond. The state amassed volumes of official federal documents that 

indicated American positions on how inland waters were being delimited 

and how the United States was reacting to foreign claims. It also called 

expert witnesses who testified on the subject. In the end it argued that this 

evidence reflected the “consistent official international stance” referred to 

by the Court in United States v. Louisiana. 

In the middle of this litigation Alaska’s contention received a significant 

boost. The federal government was, at the same time, arguing the title to 

submerged lands within Mississippi Sound with Mississippi and Alabama. 

That Sound is similar to much of the Arctic coast of Alaska – it is formed by 

a series of barrier islands. Mississippi and Alabama contended that the 

Sound is historic inland water of the United States, a status recognized by 

Article 7 of the Convention. As part of their evidence, the Gulf states relied 

on much of the same diplomatic history introduced by Alaska here.219 The 

special master in United States v. Louisiana (Alabama and Mississippi Boundary 

Cases) recommended that Mississippi Sound be ruled historic inland 

waters.220 The Court adopted that recommendation and referred to the 

history of American claims, saying “[p]rior to its ratification of the 

Convention on March 24, 1961, the United States had adopted a policy of 

enclosing as inland waters those areas between the mainland and off-lying 

islands . . . .” United States v. Louisiana (Alabama and Mississippi Boundary 

Cases), 470 U.S. 93, 106 (1985). The Court’s statement might be seen as 

having locked up Alaska’s case. However, the United States argued that: the 

issue had not been completely briefed in the Mississippi Sound case; the 

two cases are distinguishable in that Mississippi Sound had been found to 

be historic waters while Alaska made no historic claim to waters of the north 

slope; the statement was dictum; and most significantly it was incorrect. 

It was agreed in the master’s proceedings here that the finding was one 

of fact and the United States was not collaterally estopped from arguing the 

contrary.221 Alaska argued from its evidence and the Court’s conclusion that 

the United States had had a consistent and continuing policy of treating 

waters landward of island chains as inland. That policy, if asserted, 

compelled finding for the state on two bases. 

219. In fact, Alaska contributed its considerable legal talent as amicus in the Mississippi Sound case. 

220. Report of the Special Master, supra, at 408. 

221. Alaska did raise the issue on exceptions to the master’s recommendations in the Supreme Court. The 

Court ruled that “[e]ven if the doctrine [collateral estoppel] applied against the Government in an original 

jurisdiction case, it could only preclude relitigation of issues of fact or law necessary to a court’s judgment. 

[citations omitted] A careful reading of the Alabama and Mississippi Boundary Cases makes clear that the Court 

did not attach controlling legal significance to any general delimitation formula.” United States v. Alaska, supra, 

at 13-14. 
148 Shore and Sea Boundaries 

First, if the United States had the “consistent policy” referred to by the 

Court in the Mississippi Sound case, then any federal refusal to employ a 

similar policy for purposes of the Submerged Lands Act would amount to 

the “impermissible” contraction of state jurisdiction against which the 

Court warned in United States v. California. 381 U.S. at 168. Alaska argued 

that if the United States claimed such areas as inland waters in 1959, as it 

interpreted the Court to have said, then they became its property at 

statehood under the equal footing doctrine as explained in Pollard v. Hagan, 

44 U.S. (3 How.) 212 (1845). Thereafter, the state’s property could not be 

taken by the federal government by a change in its international position. 

Second, the state contended that if the “consistent policy” were in effect 

in 1953, upon passage of the Submerged Lands Act, or 1959, upon its 

application to Alaska at statehood, then that policy, and not the Convention 

definitions, should be applied to interpret the Submerged Lands Act grant. 

As noted, the United States did not agree that there existed any 

“consistent policy” from 1903 through Alaskan statehood. To the contrary, 

it used the state’s evidence, and more of its own, to show that there were 

numerous, and inconsistent, “policies” on the issue during that period. 

The special master made an exhaustive review of the historic evidence. 

His analysis of that history encompasses 127 pages of his Report to the 

Court. Report at 44-171. He concluded that the United States had no 

consistent policy in regard to the treatment of waters landward of barrier 

island chains from 1903 to 1961. Report at 127 and 150. In fact, he 

pointed to distinctly differing policies and concluded that the one most 

heavily relied upon by the state might not even have been applicable to the 

area at issue here. The master also noted that Louisiana had made the same 

arguments. There the United States had actually employed litigation 

positions consistent with Alaska’s position, on the assumption that preConvention rules should be employed for Submerged Lands Act purposes. 

After its adoption of the Convention principles in United States v. California, 

the Court held that the United States would not be bound by its earlier 

positions in Louisiana. Ultimately Louisiana failed in its effort to prove 

inland waters on the same theory pursued by Alaska here. United States v. 

Louisiana, Report of the Special Master of July 31, 1974, at 9-10. 

Special Master Mann recommended that there was no consistent policy 

and, therefore, Alaska had not acquired more expansive rights at statehood. 

United States v. Alaska, Report of March 1996, at 126-141. Nor, he 

concluded, was it possible at this late date to argue that Congress intended 

any particular system of principles for defining inland waters. The Court 

had considered that possibility in 1965 and ruled to the contrary. United 

States v. California, 381 U.S. 139, 150-160 (1965). 

Finding for Alaska on either approach would have created an 

anomalous result. Defining Alaska’s inland waters according to principles 

Part One 149 

in vogue in 1959, but likely not applicable at the time of other states’ 

admissions, hardly seems to achieve the stated purpose of Pollard, 

admission to the Union on an equal footing with existing states. Other 

states had already been denied the benefits of the principles advocated by 

Alaska. The same is true of the Submerged Lands Act argument. Congress 

made clear in the Alaska Statehood Act that Alaska was to have submerged 

lands rights equal to those of existing states. Yet other states had already 

been denied areas similar to those sought by Alaska here. 

The Supreme Court agreed with its special master. First, it contrasted the 

Mississippi Sound case with the situation here. It pointed out that 

Mississippi and Alabama were making a historic bay claim, which Alaska 

was not, and that in the historic bay context the many variations in federal 

policy over the years are less critical, saying, “[b]ut variation and 

imprecision in general boundary delimitation principles become relevant 

where, as here, a State relies solely on such principles for its claim that 

certain waters were inland at statehood.” United States v. Alaska, supra, at 15. 

It pointed particularly to United States proposals to the League of Nations 

Conference for Codification of International Law in 1930. There the federal 

government offered two proposals that were inconsistent with the principles 

offered by Alaska as the “consistent official international stance” of this 

country for most of a century. It concluded that “Alaska has not identified 

a firm and continuing . . . rule that would clearly require treating the waters 

of Stefansson Sound as inland at the time of Alaska’s statehood.” Id. at 20-21. 

THE SUBMERGED LANDS ACT DEFINITION OF “COAST LINE.” The Submerged 

Lands Act grant is measured from “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 . . . .” 43 U.S.C. Sec. 1301(c). 

Alaska argued before the special master that where fringing islands mask the 

mainland coast, the mainland is not “in direct contact with the open sea,” 

nor are the shoreward facing sides of the islands. From this, and some 

occasionally supportive legislative history, the state concluded that Congress 

intended its grant to be measured from the seaward sides of barrier islands 

and lines connecting those islands. 

The United States pointed out that the issue had already been 

considered, and resolved, by the Supreme Court in United States v. California. 

There the Court concluded that “open sea” refers to any waters that are not 

inland; that Congress had no intent as to the definition of inland waters; 

and that the Convention would be used for purposes of that definition. 381 

U.S. 139, 163 n.25 (1965). According to the federal government, because 

the waters between the mainland and barrier islands are not inland under 

the Convention, the “coast line” is composed of the low-water line along 

the mainland and each of the offshore islands. 
150 Shore and Sea Boundaries 

The master adopted the federal view, noting that Alaska’s position 

would produce two kinds of inland water: “those that qualify as inland 

water under the Convention (without using Article 4) and those resulting 

from the interpretation of ‘open sea’ in the Submerged Lands Act.” Report 

at 43. This, he noted, “would contravene” the Court’s holding in United 

States v. California that “the definition of inland waters should conform to 

the 1958 Convention.” Report at 43; United States v. California, 381 U.S. 

139, 149, 161 (1965). As a consequence, submerged lands more than 3 

nautical miles seaward of the mainland and more than 3 nautical miles 

landward of an island were not granted to the state. 

ARTICLE 4 STRAIGHT BASELINES. Finally, Alaska contended that the United 

States either had constructed straight baselines in conformity with Article 4, 

and should not be allowed to withdraw that policy to the state’s detriment, 

or in the alternative, the federal government should be required to draw 

such lines. As evidence, Alaska pointed to a federal concession in United 

States v. Louisiana of submerged lands within Chandeleur and Breton 

Sounds. As in Alaska, those Sounds are formed by barrier islands, some of 

which lie more than 6 miles from the mainland. Alaska argued that closing 

the Louisiana Sounds amounted to “tacit adoption” of Article 4 straight 

baselines (Report at 158) and that similar baselines should be constructed 

on the north slope. 

In fact, the federal position in Louisiana was developed before the Court 

announced its adoption of the Convention’s definitions of inland waters 

and during a period when the federal government was contending that the 

Convention was inappropriate for implementing legislation enacted five 

years earlier. When the Supreme Court clarified that issue, it ruled that the 

federal government would not be bound by the prior concession even in 

Louisiana. The solicitor general determined, nevertheless, that the federal 

government would continue its concession as to the Louisiana Sounds 

rather than disrupt activities being conducted in reliance on that 

concession. Although Louisiana later made the same arguments offered by 

Alaska here, it was not found to have Article 4 straight baselines in areas that 

had not been conceded but where they would have been equally 

appropriate. Report at 161 n.130. 

Of course the Convention requires more than just an appropriate 

geographic situation for straight baselines. Article 4(6) provides that the 

world must be put on notice of such claims through their publication on 

official charts. Alaska’s witnesses admitted that no such charts had ever 

been published for the north slope. What is more, as the master noted, 

Article 4 baselines may be claimed for one portion of a nation’s coast and 

not adopted for another equally qualified stretch. Report at 165. Thus, even 

if Alaska could have proven federal adoption of this method for Louisiana, 

Part One 151 

or elsewhere, there was no evidence that it had been employed on the 

north slope. 

Neither, according to the special master, could the federal government 

be compelled by a state to adopt straight baselines against its will. Both 

parties agreed that even the Convention makes the Article 4 baseline 

permissive, not mandatory. The Supreme Court had often ruled that in this 

country the federal government, not the states, could decide whether to 

employ Article 4 in lieu of the self-executing baseline articles of the 

Convention. United States v. California, 381 U.S. 139, 167-169 (1965); 

United States v. Louisiana, 394 U.S. 11, 72-73 (1969); United States v. 

Louisiana (Alabama and Mississippi Boundary Cases), 470 U.S. 93, 99 (1985); 

United States v. Maine (Nantucket Sound), 475 U.S. 89, 94 n.9 (1986). As 

Dean Mann noted, “[t]he United States has chosen not to draw straight 

baselines under Article 4.” Report at 45. 

The special master recommended a finding in favor of the United States 

on the straight baselines issues. Report at 174-175. Alaska took exception. 

The Supreme Court adopted the master’s recommendations. United States v. 

Alaska, supra, at 21. 

THE RESERVATION ISSUES. Four of the difficult issues before the 

special master did not involve identifying the submerged lands acquired by 

Alaska at statehood, but how to define those reserved by the United States. 

As a general principle, Alaska took title to the beds of inland navigable 

waters under the equal footing doctrine of the Constitution as enunciated 

in Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845). Likewise, it was granted 

title to submerged lands beneath offshore waters (to a limit of 3 nautical 

miles) by the Submerged Lands Act, as applied to Alaska by the Statehood 

Act. However, the Submerged Lands Act contains exceptions to its grant for, 

inter alia, lands “expressly retained by . . . the United States when the State 

entered the Union.” 43 U.S.C. 1313(a). The Supreme Court has long held 

that equal footing lands could also be withheld from the states by prestatehood federal action. Shively v. Bowlby, 152 U.S. 58 (1894). Prior to 

Alaskan statehood, the United States had designated substantial areas along 

the north slope as federal reserves, now known as National Petroleum 

Reserve-- Alaska and the Arctic National Wildlife Refuge. The “reservation” 

issues involve these properties. 

The parties agreed that the uplands within each of these reservations are 

the property of the federal government. They could not agree on the 

location of the coastal boundary of either reservation, nor the status of 

certain waters within those boundaries. Understandably, the federal 

government pursued a more expansive interpretation of the boundary 

language and Alaska a more conservative construction. Likewise, Alaska 

argued that lands beneath tidally influenced waters, even within the 
152 Shore and Sea Boundaries 

reservation boundaries, had passed to the state under the equal footing 

doctrine or Submerged Lands Act grant. The United States contended that 

those submerged lands had been retained in federal ownership 

through exceptions to those authorities. There are enough differences 

between the applicable facts and law that the two reservations should be 

discussed separately. 

National Petroleum Reserve--Alaska. National Petroleum Reserve-- Alaska 

(NPR-A) is a 23-million-acre tract on the western end of Alaska’s Arctic 

coast. Oil seeps had been observed in the area and the United States 

determined that it should be set aside as a potential supply for future naval 

needs. It was created as a petroleum reserve by President Harding in 1923. 

Executive Order 3797-A (Feb. 27, 1923). 

THE BOUNDARY. The coastal boundary of the Reserve was described as 

running from the western bank of the Colville River “following the highest 

highwater mark westward” to Icy Cape. The Executive Order went on to 

provide that “[t]he coast line to be followed shall be that of the ocean side 

of the sandspits and islands forming the barrier reefs and extending across 

small lagoons from point to point, where such barrier reefs are not over 

three miles off shore, except in the case of the Plover Islands . . .” [which lie 

more than 3 miles from the mainland]. 

Alaska took the position that although the boundary, and therefore the 

area of federal jurisdiction, included some lands beneath navigable waters, 

which could not be denied given the explicit inclusion of areas landward of 

the Plover Islands, other coastal water bodies were not intended to be 

included. These, the state argued, were not “small lagoons,” nor did they 

always have the described “sandspits and islands” referred to in the 

boundary description. The United States took the opposite position. 

The primary features in dispute were: Harrison, Smith, and Peard Bays; 

Wainwright Inlet and the Kuk River; and Kugrua Bay and River. Both parties 

introduced early map evidence, and related expert testimony, in an effort to 

prove that the drafters of the Executive Order intended these areas to fall 

either within or without the Reserve. In that process the federal government 

determined that Smith and Harrison Bays were not intended to be included 

and dropped its claims to them. Report at 349-352. Otherwise, the master 

concluded, the map evidence was inconsistent and inconclusive. Report at 

354. He then turned to an application of the boundary language to the 

coastal geography. 

The status of Peard Bay was enthusiastically contested. The United 

States contended that it meets the criteria for a “small lagoon” with barrier 

reefs. Alaska took the position that Peard Bay is not a “lagoon,” nor does 

its barrier reef, the Seahorse Islands, lie within 3 miles of the coast. The 

parties offered a substantial body of evidence as to the proper definition of 

“lagoon” and the nature of lagoons around the world. Ultimately, the 

Part One 153 

master concluded that “[t]aking into account the location and nature of the 

barrier reefs, the size of Peard Bay, and the meaning of ‘lagoon,’” the 

Executive Order should be constructed to include Peard Bay. Report at 364. 

The remaining water bodies at issue created a different problem. They 

were not claimed by the United States as lagoons, but rather as falling 

landward of the “coast” as that term was used in the executive order and the 

significance of its admonition to follow “the high water mark.” 

The United States argued that the term “coast” is applicable throughout 

the boundary construction, and it is understood to include short-water 

crossings as well as the high-water mark. On that interpretation each of the 

contested indentations would be closed by a short line across its mouth, 

encompassing it within the Reserve. Alaska disagreed, arguing that the 

Executive Order envisions a boundary with water crossings only in the area 

of offshore reefs (paragraph 2) but that otherwise the high-water mark is to 

be followed into coastal indentations, excluding at least some of their 

waters from the Reserve. 

The special master carefully considered all of the contentions and the 

logic of their consequences. He concluded that “[i]t is unlikely that the 

drafters of the boundary description would reach out beyond the mainland 

to embrace lagoons formed by islands but would define the boundary 

elsewhere as going inside of water bodies that are even more cut off from 

the ocean.” Report at 380. What is more, he concluded, a boundary that 

includes the inland waters better meets the drafters’ intention to preserve 

subsurface petroleum deposits. Id. 

The master recommended that each of these minor indentations be 

included within the Reserve’s boundary. Report at 380-381. Alaska did not 

take exception to that recommendation. United States v. Alaska, supra, at 33. 

THE LEGAL ISSUE. When Original No. 84 began, there was no controversy 

over rights within NPR-A’s boundaries, only where those boundaries lay. 

During the special master proceedings the Supreme Court issued its opinion 

in Montana v. United States, 450 U.S. 544 (1981), holding that lands beneath 

inland navigable waters within the boundaries of the Crow Indian 

Reservation went to Montana at statehood under the equal footing clause. 

Alaska was encouraged and with the consent of the United States withdrew 

its prior concession. United States v. Alaska, supra, at 32. Thereafter the case 

included the question whether submerged lands within the bounds of the 

reservation might nevertheless have passed to Alaska at statehood. Id. 

It is now clear that being within the bounds of a federal reservation is 

not enough to protect submerged lands from passing to a state, and Alaska 

was justified in altering its litigation position to assert a claim. The question 

was simply how the criteria for reservation enunciated by the Court in 

Montana and Utah (482 U.S. 193 [1987]) applied to the Alaska circumstances. 
154 Shore and Sea Boundaries 

To begin, those criteria are considered against a strong presumption that 

lands beneath inland navigable waters will pass to a new state at statehood. 

Montana, supra, at 552; Utah, supra, at 197-198. As the Court has long said, 

an intent to defeat state title will not be inferred “unless the intention was 

definitely declared or otherwise made very plain.” United States v. Holt State 

Bank, 270 U.S. 49, 55 (1926). Before turning to the substantive question, 

we look at the application of that presumption here. 

The presumption has arisen from litigation about inland waters that the 

federal government had held in trust for future states and that were going to 

those states as a matter of constitutional law under the equal footing 

doctrine. As noted previously, the submerged lands at issue here are some 

inland and some offshore. The United States acknowledged the application 

of the presumption with respect to the former only. As to offshore 

submerged lands, it pointed out that they would go to Alaska not as a 

constitutional right, but as a federal grant pursuant to the Submerged Lands 

Act. Federal grants, it argued, are to be construed strictly in favor of the 

United States, as the Supreme Court had recently held in another Original 

action. California ex rel. State Lands Commission v. United States, 457 U.S. 

273, 287 (1982). 

The special master agreed, concluding that “different presumptions 

apply to submerged lands inside the Reserve boundary, depending on 

whether the waters are territorial or inland.” Report at 394. Nevertheless, 

he applied the stricter inland water standards in his analysis, finding that 

even they had been meet. Id. 

In its review, the Supreme Court revisited the presumption question and 

reached the opposite conclusion. It reasoned that although the Submerged 

Lands Act is a grant of federal property, whose scope “must be construed 

strictly in the United States’ favor,” the presumption is that there has been a 

grant unless the lands have been “expressly retained” as provided in 43 

U.S.C. 1313. Because the Submerged Lands Act refers to both inland and 

offshore submerged lands, and Congress was presumably aware of the 

Court’s settled doctrine for inland waters, there was no reason to assume 

that Congress either intended to upset that doctrine or adopt a separate 

standard for the offshore area. It therefore read “expressly retained” to 

apply a presumption equivalent to that traditionally employed for inland 

waters. United States v. Alaska, supra, at 35- 36. 

From the Court’s decisions in Montana, Utah, and earlier cases comes 

the proposition that lands beneath navigable inland waters will pass to a 

new state on its admission to the Union unless the federal intention to 

include the waters within a reservation to the United States is clearly made, 

there is included an affirmative intent to defeat state title, and the 

reservation is in furtherance of a public purpose. Having found that the 

Part One 155 

NPR-A boundary encompasses submerged lands, the special master 

concluded that it follows a fortiori that they were “intended to be included 

within the Reserve.” Report at 429. He also determined that no particular 

language is needed to show that intent. Report at 419, citing Alaska Pacific 

Fisheries v. United States, 248 U.S. 78 (1918) where “the Court found a 

reservation of submerged lands on the basis of exigency alone.” Report at 420. 

Alaska took exception but the Court concurred in its master’s 

conclusions. It pointed out that “[t]he purpose of reserving all oil and gas 

deposits within the Reserve’s boundaries would have been undermined if 

those deposits underlying the lagoons and other tidally influenced waters 

had been excluded. It is simply not plausible that the United States sought 

to reserve only the upland portions of the area.” United States v. Alaska, 

supra, at 39-40. In that way the NPR-A reservation is distinguishable from 

those in Montana and Utah and similar to that in Alaska Pacific Fisheries. 

The special master also found an affirmative intent to defeat state title, 

as required by the Court’s decision in Utah, at 202. Section 11(b) of Alaska’s 

Statehood Act specifically provides that Congress’s exclusive legislative 

jurisdiction would continue with respect to certain lands owned by the 

United States including “naval petroleum reserve numbered 4.” The master 

reasoned that use of the word “owned” clearly contemplates “continued 

federal ownership.” Report at 433. The Supreme Court again agreed with 

its master, noting that “when the United States exercises its power of 

‘exclusive legislation’ under the Enclave Clause, it necessarily acquires title 

to the property.” United States v. Alaska, supra, at 42. 

Finally, the Supreme Court had long recognized that federal retention of 

submerged lands required particular purposes. In Shively v. Bowlby the Court 

referred to these as “an international duty or public exigency.” 152 U.S. at 

50. Alaska claimed that no such duty or exigency existed here. The special 

master concluded that the preservation of valuable petroleum deposits 

amounted to such an exigency. Report at 423. The Court agreed. It pointed 

out that “[t]he only constitutional limitation on a conveyance or reservation 

of submerged lands is that it serve an appropriate public purpose.” United 

States v. Alaska, supra, at 40, quoting from Utah, supra, at 196-197. The 

Court determined that “the inclusion of submerged lands within the 

Reserve fulfilled an appropriate public purpose — namely, securing an oil 

supply for national defense.” Id. 

Two related issues were considered by the master and the Court. First, 

early decisions had dealt with federal conveyances of submerged lands to 

third parties prior to statehood, not reservations to the United States. The 

question of whether a state could be deprived of submerged lands through 

a federal reservation, as well as conveyance, had been left open by the Utah 

decision. Alaska argued that although state losses through conveyance had 
156 Shore and Sea Boundaries 

been sanctioned, the United States should not be permitted to retain 

ownership: “because this ownership is so closely identified with sovereignty, 

retention by the Federal Government of ownership necessarily would 

diminish the sovereignty of a newly admitted state, violating the principle 

underlying the equal footing doctrine . . . .” Report at 396, quoting Alaska’s 

supplemental brief before the special master. 

The United States argued, citing Justice White’s dissent in Utah, that the 

Property Clause seems to give the federal government as much power to 

retain lands as to dispose of them. Likewise, the purposes of the 

Constitution seem better served by retaining submerged lands in the public 

domain, where they can be later transferred to the states if Congress desires, 

than by conveying them to a private party, a power that has been clearly 

recognized. Report at 398; quoting from Utah at 482 U.S. at 209-210. The 

United States also pointed to Alaska Pacific Fisheries, in which the Court 

recognized Congress’s power to create a reservation for the Metlakatla 

Indians that included (by implication) submerged lands, even though there 

was no conveyance to the Indians. Report at 399. 

The special master recommended that the federal government could 

reserve to itself, as well as convey, submerged lands before statehood, and 

thereby defeat a subsequent state’s title. 

Alaska excepted to the recommendation. The Supreme Court agreed 

with the master, saying that “Congress can also reserve submerged lands 

under federal control for an appropriate public purpose,” acknowledging 

that it was resolving a question left open in Utah. United States v. Alaska, 

supra, at 34. 

Finally, Alaska questioned whether the executive branch had authority 

to reserve submerged lands. The Court in Utah Div. Of State Lands v. United 

States referred to the need for “congressional” intent to include submerged 

lands and to ultimately defeat state title. 482 U.S. at 202. The parties 

disagreed as to whether this reference introduced a third requirement from 

Utah, i.e., congressional involvement. 

The special master turned back to the Utah decision. He noted that the 

Court made a point of the fact that Congress had not ratified an executive 

branch action, and reasoned that if Congress “could have authorized an 

unauthorized executive reservation . . . it could have delegated authority to 

make the reservation in the first instance.” Report at 406. 

The United States argued that just such a delegation existed here. The 

Pickett Act, 36 Stat. 847, provided that “the President may . . . withdraw 

from settlement, location, sale, or entry any of the public lands of the 

United States including the District of Alaska . . . and such withdrawals or 

reservations shall remain in force until revoked by him or by an Act of 

Part One 157 

Congress.” Report at 407.222 Alaska argued, unsuccessfully, that because 

submerged lands are not subject to “settlement, location, sale, or entry” 

only uplands could have been intended to be governed by its provisions. 

The special master concluded that the Pickett Act provided congressional 

authorization for the reservation of submerged lands in NPR-A. On review, 

the Supreme Court avoided that issue, finding that Congress had “ratified 

the terms of the 1923 Executive Order in Sec. 11(b) of the Statehood Act,” 

and explaining that Congress surely could retain a petroleum reserve, 

including submerged lands, at statehood by meeting the Utah criteria, or 

achieve the same result by recognizing a similar executive reservation. 

United States v. Alaska, supra, at 44. The master’s recommendation was 

adopted. Id. at 45-46. 

The Arctic National Wildlife Refuge. The Arctic National Wildlife Refuge 

(ANWR) is comprised of 18 million acres in the northeastern corner of 

Alaska, bordered on the east by Canada and on the north by the Arctic 

Ocean. Like much of the Arctic coast, this portion of the mainland is, for 

most of its length, shielded by barrier islands. It is the lagoons between 

those islands and the mainland over which the ANWR issues were fought. 

As with NPR-A, the parties could not agree whether the coastal waters 

along the Arctic were intended to be included within its boundary or 

whether the United States had effectively retained any tidally influenced 

submerged lands at the time of statehood. As with NPR-A, the United States 

had to prevail on both questions to retain title to those lands. 

Unlike the situation at NPR-A, the parties here may have been pursuing 

different resource interests. It is probably fair to say that both sovereigns 

were primarily interested in petroleum development near NPR-A. At least 

that was the original purpose of the federal reservation and the state has 

shown similar interest. The parties’ interests along the coastal portion of 

ANWR differed. Again, the state seems most concerned that the maximum 

area for petroleum production be made available. The United States, on the 

other hand, had established ANWR for the protection of wildlife, and 

sought to retain the lagoons to that end. 

THE BOUNDARY. The coastal boundary of ANWR is described as beginning 

at the point of extreme low water at the United States/Canadian border 

“thence westerly along the said line of extreme low water, including all bars, 

reefs, and islands to a point on the Arctic Seacoast known as Brownlow 

Point . . . .” 23 Fed. Reg. 364 (1958). The parties interpreted this language 

differently. The United States contended that it described a single line, 

222. In fact, this section was repealed by the Federal Land Policy Management Act of 1976, 90 Stat. 2743, 2792. 

See 43 U.S.C. 1714 (1988) on present withdrawal authority. 
158 Shore and Sea Boundaries 

running along the extreme low-water line on the mainland coast where 

there are no islands, then jumping offshore to embrace offshore features — 

following the extreme low-water line on their northern shores, connecting 

islands in a chain — and then returning to the mainland. 

Alaska argued that although the islands were intended to be part of the 

refuge, the waters separating them from the mainland were not. The state’s 

position would have resulted in a mainland refuge with satellite segments 

standing offshore. The state also argued that tidally influenced portions of 

navigable rivers within the mainland did not fall within the boundary. 

As it had with NPR-A, Alaska focused on the boundary description’s use 

of a water level, the line of “extreme low water.” It argued that the boundary 

must, at all times, follow that line. A consequence, of course, is that the 

boundary could not include cross-water segments joining the mainland and 

islands, or any two islands, as proposed by the United States.223 The United 

States countered that the boundary description contained additional 

language that belied the state’s interpretation. For example, “bars and reefs” 

were to be included within the refuge, yet either may be entirely submerged 

and have no extreme low-water line, making the application of Alaska’s 

theory impossible. Both parties offered expert testimony in support of 

their positions. 

Other evidence was also introduced. Pre-statehood maps, early drafts of 

the boundary description, and evidence of the refuge’s purpose were all 

considered. Two maps were located and each depicted the northern 

boundary of ANWR as a single line running offshore to include barrier 

islands. Report at 483. The draft boundary descriptions also indicate that 

their authors contemplated “a single line.” Report at 485. Finally, the 

justification for the refuge included the protection of habitat for polar bears 

(which den in the lagoons), seals, and whales.224 The special master 

concluded that “the reference to aquatic animals . . . shows that they must 

have intended the boundary to take in submerged lands.” Report at 489. 

The special master found that the northern boundary of ANWR was 

intended to be a single, continuous line encompassing offshore islands and 

the lagoons. Report at 495. He then evaluated the federal claim according 

to the requirements of the Supreme Court’s decisions in Montana and 

Utah.225 He determined that the federal government had clearly intended to 

223. The Alaskan theory seemed not completely consistent when dealing with rivers which empty into the 

coastal lagoons. There the state proposed going upstream to the limit of tidal effect and then crossing the river, 

following it downstream to the lagoons, and proceeding again along the extreme low-water line. Report at 481. 

224. It is now understood that the lagoons also provide important mosquito protection for migrating caribou. 

225. Montana v. United States, 450 U.S. 544 (1981) and Utah Div. of State Lands v. United States, 482 U.S. 

193 (1987). 

Part One 159 

include the submerged lands within the refuge, had likewise intended to 

retain them beyond Alaskan statehood, and that the retention was in 

furtherance of a proper public “exigency.” 

EFFECTIVENESS OF THE WITHDRAWAL. The final issue to be dealt with here is 

whether federal actions were sufficient to avoid transfer of submerged lands 

within ANWR to Alaska at statehood. The question arises because of the 

peculiar timing of those actions. 

On November 18, 1957, the Interior Department’s Bureau of Sport 

Fisheries and Wildlife applied to the secretary of the interior for an order 

withdrawing approximately 9 million acres of land in northeastern Alaska. 

The lands, then administered by the Department’s Bureau of Land 

Management, would become the Arctic Wildlife Range, under the 

stewardship of the Bureau of Sport Fisheries.226 However, the proposal 

would have, by law, prohibited mining in the range. Then Secretary of the 

Interior Seaton wanted to avoid that result and tabled the application while 

he sought legislation to permit mining in the proposed Wildlife Range. The 

application was still pending when Alaska became a state in January 1959. 

Nearly two years later, in December of 1960, the secretary gave up his hope 

for congressional action and issued Public Land Order 2214. 25 Fed. Reg. 

12, 598 (1960). That order withdrew the described lands and established 

them as the Arctic National Wildlife Range. 

Section 6(e) of the Alaska Statehood Act transferred certain federal lands 

to the state but excepted “lands withdrawn or otherwise set apart as refuges 

or reservations for the protection of wildlife.” Clearly the lands had not 

been “withdrawn” at the time of statehood. However, a federal regulation 

in effect at the time provided that the application alone protected the area 

from disposal under the public lands law, awaiting a final decision from the 

secretary. The United States argued that, although not “withdrawn,” these 

lands had been “set apart” for the protection of wildlife and were excepted 

from the grant of 6(e). 

The master disagreed. He emphasized the entire phrase, “set apart as 

refuges” and pointed out that the area in question was not a “refuge” at 

statehood. As evidence, he pointed to the fact that it continued to be 

managed by the Bureau of Land Management and not the federal Fish and 

Wildlife Service. He reasoned that the language of Section 6(e) was drafted 

before the regulation existed, making it impossible for Congress to have 

intended the words “otherwise set apart” to include lands applied for but 

not yet withdrawn. Report at 466. He concluded that Congress did not 

226. The area later became known as the Arctic National Wildlife Refuge and was doubled in size. 94 Stat. 

2390. It is referred to herein as the refuge, or ANWR. 
160 Shore and Sea Boundaries 

intend 6(e) to defeat Alaska’s title to submerged lands covered only by an 

application for withdrawal. Report at 467. The special master found that 

the application did not effectively withhold tidally affected submerged 

lands from Alaska at statehood. Report at 477. 

The United States took exception to that finding; the only instance in 

which it asked the Court not to follow the master’s recommendations, 

although the master had ruled against the federal government on 

other issues. 

Returning to its approach in the Montana and Utah cases, the Supreme 

Court looked for: (1) an intent to include submerged lands within the 

refuge, and (2) an intent to permanently defeat state title. United States v. 

Alaska, supra, at 51. On the “intent to include” question it followed the 

master’s interpretation of the evidence, concluding that the boundary 

description and purpose of the refuge indicate a clear intent to include 

submerged lands. Id. at 51-52. The “public purpose” requirement is 

satisfied by a wildlife refuge. Id. at 53. Finally, the Court pointed out that 

although there was some controversy as to whether the executive branch 

had authority to divest Alaska of submerged lands, Congress could surely 

ratify such actions, as the United States contended had been done through 

6(e) of the Statehood Act. Id. at 54. 

The Court also reviewed the evidence of congressional knowledge of the 

withdrawal process. Notice of the application had been published in the 

Federal Register, and a press release had been issued. Congress had been 

shown a map of ANWR with a boundary embracing submerged lands. 

Congress was told that the secretary of the interior construed his withdrawal 

authority to include submerged lands. 

With that the Court went on to determine whether the “intent to defeat” 

Alaska’s future title to these submerged lands had in fact been accomplished 

prior to statehood. Here the Court focused on the master’s interpretation 

that lands would have to have been “set apart as a refuge” to fall within the 

exception of 6(e)’s grant. The Court disagreed. It reasoned that because 

6(e) separately included completed withdrawals, the subsequent phrase, “or 

otherwise set apart,” would be rendered meaningless in the master’s 

approach. The Court noted its precedents against statutory interpretations 

that produce such results. It then concluded that “the phrase aptly describes 

the administrative segregation of lands designated to become a wildlife 

refuge.” Id. at 59. “Accordingly, the application and regulation, taken 

together, placed the Range squarely within the proviso of Sec. 6(e), 

preventing a transfer of lands covered by the application to Alaska.” Id. 

The lagoons and tidally influenced rivers of the northeastern Arctic are 

part of the Arctic National Wildlife Refuge. 

CHAPTER 4 

LATERAL BOUNDARIES 

The discussion of tidelands cases concludes with three Original actions 

that dealt not with coast lines and the location of marginal belts measured 

from them, but with lateral boundaries between adjacent coastal states. 

Most states have long since resolved land boundary questions with their 

neighbors. But often those agreed boundaries end at the coast. When 

Congress granted each of the coastal states an offshore belt it specified the 

seaward reach of each state’s jurisdiction but made no effort to determine 

where, for example, California’s submerged lands ended and Oregon’s 

began. The Supreme Court has faced that question on three occasions. 

TEXAS V. LOUISIANA 

Texas v. Louisiana began as a river boundary case.227 The states’ common 

boundary runs down the “middle” of the Sabine River and they disagreed 

as to its exact location. A quirk of boundary descriptions at the time of 

Texas’s admission to the Union created a potential federal interest and the 

United States was invited to join the proceeding.228 Thereafter Louisiana, 

supported by the federal government, moved to expand the proceedings to 

include an extension of the river boundary offshore. 

The federal government has a property interest in the location of the 

Texas/Louisiana lateral offshore boundary that is unusual. In most cases 

adjacent states will both have submerged lands rights 3 miles offshore. 

Although the extension of their mutual land boundary to the 3-mile limit 

may be important to the states, it has no effect on federal property rights. 

Texas, in contrast, was given a grant of up to 9 nautical miles. Thus the 

extension of its 3-mile lateral boundary with Louisiana will affect federal 

interests for the next 6 miles.229 

227. The Honorable Robert Van Pelt, Senior United States District Court Judge from Lincoln, Nebraska, 

heard the case as the Supreme Court’s special master. 

228. Louisiana’s boundary had always run to the middle of the Sabine. Texas, by contrast, had entered 

the Union in 1845 with an eastern boundary along the western bank of the Sabine. The western half of the 

River was, at the time, part of the United States but not part of any state. As a consequence, the federal 

government held title to any island in the western half of the river. In 1848 the boundary hiatus was corrected 

when Congress permitted Texas to extend its boundary to the middle of the river. No mention was made of 

islands in the western half of the river. The United States entered the Texas v. Louisiana case to claim six islands 

which it believed to have existed in 1848 and, therefore, still belong to the federal government. That claim was 

reduced to a single island as evidence was developed. Ultimately the special master recommended that even 

that island belonged to Texas and not the United States. The federal government did not take exception to that 

recommendation and it was adopted by the Court. Texas v. Louisiana, 431 U.S. 161, 167 (1977). 

229. This situation arises only here and at the Alabama/Florida lateral boundary where Alabama has a 

3-mile grant and Florida a boundary of up to 9 miles in the Gulf of Mexico. 

161 
162 Shore and Sea Boundaries 

The parties had substantially divergent views on the proper location of 

the lateral boundary. Texas approached the question from a historic 

perspective. The Supreme Court had already acknowledged that Texas had 

a 3-league offshore boundary when it entered the Union. Texas Boundary 

Case, 363 U.S. 1 (1960). The state reasoned that that boundary must have 

included some eastern limit in the area of the Sabine. Therefore, it urged, 

its lateral offshore boundary with Louisiana should be constructed as it 

would have been at that time. It agreed with the federal government that 

the line should be at all times equidistant from the coasts of Texas and 

Louisiana but contended that the 1845 or 1848 coast line should be used, 

not the modern coast line. Texas argued that it was supported in the latter 

proposition by the Supreme Court’s determination that its Submerged 

Lands Act grant is to be measured from that historic coast line.230 

Louisiana and the United States had similar property interests at stake 

in the litigation. Both would benefit from the westernmost possible line, 

Louisiana within the first 3 miles of the coast and the federal government 

thereafter. But they did not entirely agree on how the line should be drawn. 

Louisiana and the United States did find common ground in their 

opposition to Texas’s proposal. Both took the position that the offshore 

boundary should be measured from the present coast line but then parted 

company. The state advocated a line running due south from the midpoint 

of the existing river mouth. That line had already been adopted by the 

Louisiana legislature. (The state also offered a number of alternative lines.) 

It reasoned that only this line would be equitable because any more eastern 

alternative would run “beneath” the Louisiana mainland. In response to 

Texas’s reliance on its Submerged Lands Act grant, Louisiana pointed out 

that its grant is measured from its modern coast line. 

The federal government offered a single proposal, a line running from 

the present mouth of the river and extending offshore so that it would be at 

all times equidistant from the modern coast line of the two states. Not 

surprisingly the Texas line was farthest east and the Louisiana line most 

westerly of the options presented to the master. The federal line lay in 

between. 

The parties’ proposals varied greatly for one reason. Subsequent to 

1845 jetties had been built more than 3 miles seaward from the original 

mouth of the Sabine. Texas proposed that the jetties be ignored for lateral 

boundary purposes because they are not part of its historic coast line. Texas 

Boundary Case, 389 U.S. 155 (1967). Louisiana urged that they must be 

used, and the east jetty already had been employed for purposes of 

230. The state was not technically accurate in this suggestion. Texas’s grant is measured from the modern 

coast line but extends to the more shoreward of its historic 3-league boundary or 3 leagues from the present 

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

Part One 163 

delimiting its coast line. Louisiana Boundary Case, 394 U.S. 11 (1969). It 

pointed out that the Texas proposal would sever the eastern jetty, creating 

the anomaly of having part of the adjudicated Louisiana coast line outside 

of the state. The United States took the position that the parallel jetties 

moved the mouth of the river to their seaward limit; that the jetties and river 

mouth should be treated as the states’ coast lines; and that principles of the 

Convention on the Territorial Sea and the Contiguous Zone should be 

employed to construct a lateral boundary. 

In his analysis of the controversy, the special master began by noting 

that the Convention on the Territorial Sea contains provisions applicable to 

the question before him. Article 8 provides that permanent harborworks 

are part of the coast. Article 12 establishes that, in the absence of an 

agreement to the contrary, adjacent states may not extend their zones of 

maritime jurisdiction beyond an equidistant line between them. In 

addition, Article 12 recognizes that historic title or special circumstances 

might justify an exception to that principle. Texas had insisted that because 

this is a purely domestic matter, international law is useful “only as an 

analogy.” But the master pointed out that on at least three occasions the 

Supreme Court had applied international law to define state boundaries in 

this country. Texas v. Louisiana, Report of the Special Master, October Term, 

1974, at 22-23. 

The Court had, of course, consistently relied upon the Convention’s 

principles to define the states’ coast lines for purposes of the Submerged 

Lands Act. And, contrary to Texas’s contention, its present coast line as 

determined by Convention principles plays a significant role in delimiting 

its Submerged Lands Act grant. In fact, Texas’s grant is measured from the 

modern coast line; it simply cannot extend beyond the historic offshore 

boundary that is measured from a historic coast line. Report at 27-28. As 

he concluded, “the Geneva Convention will determine any future changes 

that might limit the Texas grant . . . . Thus, for both Texas and Louisiana the 

Convention is applicable to any future limitation of their grants.” Id. at 28.231 

Judge Van Pelt recommended that “the Geneva Convention should be 

applied in the determination of this lateral boundary dispute. Article 12 

was specifically drafted to provide the most equitable means of determining 

a lateral boundary. The prior case law indicates the Convention coastline 

applies to Texas and Louisiana . . . . Texas and Louisiana have modern, 

ambulatory, Convention coastlines for important Submerged Lands Act 

231. In its original decision to adopt the Convention’s principles for purposes of the Submerged Lands 

Act the Supreme Court foresaw its use for future disputes. It said then that “the comprehensiveness of the 

Convention provides answers to many of the lesser problems related to coastlines which, absent the 

Convention, would be most troublesome.” United States v. California, 381 U.S. 139, 165 (1965) [footnote 

omitted]. The Convention’s lateral boundary provisions seem to be a good example. 
164 Shore and Sea Boundaries 

purposes. To introduce an historic coastline for these two states for lateral 

boundary purposes would not be practical.” Report at 28-29. 

Having reached that determination, the master concluded that the 

jetties are to be considered as part of the coasts of both states. He pointed 

out that state officials had considered their boundary to run between the 

jetties and that treating the eastern jetty as part of Louisiana, and the 

western as part of Texas produced an “equitable” lateral boundary while the 

lines advocated by the states produced an inequitable result. Report at 29. 

The master then adopted the equidistant line proffered by the United 

States. The line had been constructed according to procedures found in 1 

Shalowitz, Shore and Sea Boundaries (1962) at pages 234-235, and was 

explained at trial by State Department Geographer Dr. Robert Hodgson. 

Report at 30. Both jetties were used as base points and the result was found 

to be equitable. 

The master then further explained his rejection of the states’ proposals. 

Louisiana’s statutory line, he said, is not binding on its neighbor and, in any 

event, is not a median line as required by the Convention. Report at 33. 

Alternative proposals from Louisiana were rejected because one did not 

begin at the geographic middle of the Sabine, as already approved by the 

Court as an inland boundary, and the other was founded on a theory that 

had been rejected in the Convention.232 Id. at 34. 

Texas argued that even if the Convention applied, Article 12 provided an 

exception for historic title and that exception should be employed here. The 

state reasoned that it clearly had an offshore boundary in 1845. The 

Supreme Court had already said so. Logically that 3-league boundary had 

to be connected up to its eastern upland boundary somehow.233 But the 

Texas statute provided no connection. The state argued that “in the absence 

of clear statutory language the boundary must be determined by the 

reference to standards of domestic and international law extant in 1845/48, 

and how Congress would have intended that the eastern boundary of Texas 

be extended gulfward.” Report at 36. 

But the United States disagreed, urging that until a boundary is 

described, agreed upon, or adjudicated it has no precise location. Id. at 36-

37. The master concluded that “given the total lack of relevant language in 

232. Louisiana proposed a line equidistant from “the general trend of the coast” a method of lateral 

boundary delimitation which was rejected by Convention drafters, and the master, as being too subjective to 

be trustworthy. The master also rejected Louisiana’s contention that anything but a “due south” line would 

deprive the state of lands “beneath” its coast. As the master pointed out, in this regard Louisiana’s reasoning 

was circular, assuming that the proposed line is appropriate and then concluding that lands east of it are 

“beneath” Louisiana. In fact the line adopted by the master assured that each state got all submerged lands 

which lay closer to it than its neighbor. 

233. The 1836 Texas statutory boundary read “beginning at the mouth of the Sabine River and running 

west along the Gulf of Mexico three leagues from the land, to the mouth of the Rio Grande . . . .” 

Part One 165 

the statute, there is no indication of how or where a lateral boundary was to 

be constructed. Statutory interpretation cannot supply missing words of 

such importance.” He concluded that a lateral boundary was not 

established in 1836. 

Judge Van Pelt went on to consider the “special circumstance” exception 

to the median line rule of Article 12. He pointed out that “the existence of 

navigation channels in the area of a lateral boundary is an example of what 

the International Law Commission considered to be a special 

circumstance.” Report at 43. So too was a “water boundary that might 

intersect a peninsula of land.” Id. Dr. Hodgson testified that although 

“special circumstance” is not defined in the Convention, “it is generally 

considered to be any physical or geographic feature which can result in an 

inequitable division of the seabed.” Quoted at Report at 43. 

The master noted that each state proposed a boundary that would sever 

the other’s jetty and that the International Law Commission considered this 

a special circumstance to be avoided “even at the cost of deviating from the 

equidistant principle.” Report at 43. Happily, in this instance, “extending 

the lateral boundary through the jetties (which is a navigation channel) not 

only allows the equidistant principle to be applied without interruption but 

also prevents the severing of either jetty by a boundary line.” Id. He 

concluded that “[t]o the extent the jetties are special circumstances in this 

case, they are to be included rather than ignored.” Report at 45. 

Ultimately Judge Van Pelt recommended that the boundary between 

Texas and Louisiana is an equidistant line running between the Sabine Pass 

jetties and then offshore measured from the modern coast line, including 

both the eastern and western jetties. (Figure 23) He found this line to be 

supported by prior tidelands decisions, testimony that the mouth of the 

river lay at the southern terminus of the jetties, evidence that a line between 

the jetties had evolved through prescription and acquiescence, and the 

equitable division of seabed through that line. Report at 47-48. 

Texas filed exceptions to the lateral boundary recommendation. 

Specifically, the state objected to what it described as the master’s finding 

that despite having a 3-league offshore boundary in 1836 that line was not 

connected to its land boundary. The Court concluded that that contention 

“misreads the findings of the Special Master.” Texas v. Louisiana, 426 U.S. 

465, 468 (1976). It explained that “the Special Master does not reject Texas’ 

contention that there was a historic ‘inchoate’ boundary; what he concludes 

is that there has never been an established offshore boundary between the 

States.” Id. And it found “the Special Master correct in his conclusion and 

conclude[d] that he properly considered how such boundary should be now 

constructed.” Id. The Court went on to endorse the master’s application of 

the Geneva Convention’s principles to the modern coast lines of Texas and 
166 Shore and Sea Boundaries 

Figure 23. Offshore extension of Texas/Louisiana boundary. Texas’s 3-league 

(9 nautical mile) boundary is measured from the most landward of the 

modern and historic coast lines; Louisiana's 3-mile boundary is measured 

from the modern coast line, including jetties. 

Louisiana. With respect to the state’s contention that 1845 coastlines 

should have been used, it responded “the short answer to Texas’ argument 

is that no line was drawn by Congress and that the boundary line is being 

described in this litigation for the first time. The Court should not be called 

upon to speculate as to what Congress might have done.” Id. at 469-470. It 

went on to suggest that this is indeed “one of the lesser” coastline problems, 

which can be well settled by adopting the Convention’s principles and that 

“the Special Master correctly applied the Convention.” Id. at 470. 

The lateral boundary recommended by the master was adopted and 

incorporated in a decree of the Court. Texas v. Louisiana, 431 U.S. 161, 

167 (1977). 

GEORGIA V. SOUTH CAROLINA 

Like Texas and Louisiana, Georgia and South Carolina had river 

boundary disputes which they asked the Supreme Court to resolve. While 

they were about it, the parties expanded their litigation to include their 

lateral offshore boundary. 

Part One 167 

That issue raised two interesting problems. The first was, where should 

the offshore boundary begin? The states’ Savannah River boundary was 

described in the Treaty of Beaufort and resolved by the master and Court by 

interpreting that Treaty. However, that boundary ended at the mouth of the 

Savannah River and the river does not open directly to the sea but into a 

juridical bay whose mouth is some distance seaward. Thus, the master’s first 

chore was to divide the inland waters of that bay between the states. He 

recommended a line that “continues down the river’s mouth until it 

intersects . . . [the bay closing line, which runs] from Tybee Island’s most 

northern point to Hilton Head Island’s most southern point . . . .” The 

parties took minor exception to that line but it was adopted by the Court. 

Georgia v. South Carolina, 497 U.S. 376, 406 (1990). 

More controversial was the master’s course thereafter. He recommended 

a lateral offshore boundary which continued offshore on a perpendicular to 

the Baseline Committee’s bay closing line to the 3-mile limit. 

The coastlines of Georgia and South Carolina come together in such a 

way that an unusual lateral boundary circumstance is created. The totality 

of that coast is concave. South Carolina faces more southerly and Georgia 

faces more easterly. To exacerbate the problem, the bay which includes their 

coastal boundary happens to face even more easterly than does the general 

direction of the Georgia coast. For that reason, any line running offshore 

and perpendicular to the closing line will soon be closer to the South 

Carolina than the Georgia coast, giving Georgia jurisdiction over waters and 

submerged lands that are closer to South Carolina. 

In reaching his recommendation Special Master Hoffman considered 

international law principles, specifically noting the Convention on the 

Territorial Sea and the Contiguous Zone’s admonition that in the absence of 

agreement adjacent states are not to extend their jurisdiction beyond a 

median line projected from their coasts. Article 12. Id. at 407. He also 

discussed the use of that method by Judge Van Pelt in constructing the 

Texas/Louisiana lateral boundary. Nevertheless, he pointed out that the 

overriding principle in lateral boundary delimitation is “equity” and 

concluded that in these circumstances equity is better accomplished with a 

perpendicular to the line closing inland waters. 

Both states took exception to the recommendation but it was adopted 

by a majority of the Court. Id. at 408. However, Justices Stevens and Scalia 

dissented on the issue. Justice Stevens agreed that equity is the goal (as 

clearly it is) but opined that equity would be better served in this case by a 

different method of delimitation. He proposed running the lateral 

boundary “at an angle perpendicular to the average angle of the States’ 

coastal fronts.” Id. at 412 n.* Given the geographic circumstances, such a 

line more closely approximated an equidistant, or median, line. South 

Carolina would have gained a significant area of offshore jurisdiction. 
168 Shore and Sea Boundaries 

Despite the disparity in result, the alternative proposals were actually 

based on the same internationally recognized option for lateral boundary 

delimitation, that being a perpendicular to the general direction of the 

coast. Their different boundaries resulted from a well recognized deficiency 

in the method, that the outcome may be radically affected by the length of 

coastline used for establishing the “general direction.” The majority and 

special master ran a perpendicular from the bay closing line alone, a mere 

6-mile segment of coast which, it happens, was atypical of the general 

coastline of either state. Justice Stevens proposed a slight variation of the 

principle, to account for the change in “general direction” as one passed 

from one state to the other, but his boundary differs primarily because a 

much longer segment of coast is being considered to establish a general 

direction. 

Judge Van Pelt pointed out this difficulty in considering the 

Texas/Louisiana lateral boundary. He opted for the Convention’s 

equidistant line. Texas v. Louisiana, Report of the Special Master of October 

Term, 1974, at 34 and 49.234 The justices’ disparate conclusions in Georgia 

v. South Carolina provide a good example of Judge Van Pelt’s concern. 

That is not to say that either the majority or dissent’s line is necessarily 

inappropriate. Equity remains the bottom line. 

NEW HAMPSHIRE V. MAINE 

New Hampshire and Maine share a common boundary that reaches the 

Atlantic Ocean at the mouth of the Piscataqua River. Just seaward of the 

mainland are valuable lobster grounds. The Supreme Court litigation to 

resolve this lateral boundary was preceded by what the locals described as 

“the lobster war.” Each state had its own view of where the boundary was 

located. Those views resulted in conflicting claims to approximately 2,500 

acres of seabed. Lobster regulations differed between the two states and 

when enforcement officers from Maine imposed their more stringent 

standards on lobstermen from New Hampshire, the governor of New 

Hampshire opined that war had been declared. 

Minor legal skirmishes were fought before the states agreed to halt 

enforcement and put the question to the United States Supreme Court. 

Retired Justice Tom C. Clark was appointed as special master. 

The issues differed from those in Texas v. Louisiana in two significant 

particulars. The first was geographic. Five miles off the Maine/New 

Hampshire coast lie the Isles of Shoals, a group of small islands. Some are 

in Maine and others in New Hampshire. (Figure 24) Strict application of 

the equidistant principle employed in Texas v. Louisiana, would have been a 

complicated, though feasible, option. The second distinction was historic. 

234. In doing so he explained that “[t]he trend of the coast theory was rejected by the Geneva Convention 

draftsmen in 1958 as too subjective a method of constructing boundaries, and it must be rejected in this case. 

There are many possible trends in the coastline depending on the surveyor.” Id. 

Part One 169 

Figure 24. Maine/New Hampshire boundary. The state boundary extends 

offshore to divide the Isles of Shoals. 

The states’ conflict over this boundary was nothing new. Following an 

earlier protracted controversy, King George II had decreed in 1740 that the 

boundary “shall pass thro the Mouth of Piscataqua Harbour and up the 

Middle of the River . . . . And that the Dividing Line shall part the Isles of 

Shoals and run thro the Middle of the Harbour Between the Islands to the 

Sea on the Southerly Side . . . .” Quoted at New Hampshire v. Maine, 426 U.S. 

363, 366 (1976). The states’ purpose in Number 64 Original was to 

implement this language, not to create a boundary in the first instance. 

The parties presented their positions to the special master but before 

trial, and at his urging, they negotiated an agreement on the boundary. That 

agreement read the 1740 Order’s references to “middle of the river” and 

“middle of the harbour” to mean the middle of the main channel of 
170 Shore and Sea Boundaries 

navigation. The states then agreed upon specific points at which the middle 

of each channel intersected the river and harbor mouths and those points 

became the termini of the lateral boundary. That boundary was agreed to 

be the arc of a great circle, which appears as a straight line on Mercator 

projection charts, connecting those termini. 

The parties moved the special master for entry of judgment by consent 

and provided, in the event that the master were disinclined to follow that 

process, an agreed-upon record by which they believed the matter could be 

independently decided.235 

The special master concluded that “under Vermont v. New York, 417 U.S. 

270 (1974), the proposed decree must be rejected because it constitutes 

‘mere settlements by the parties acting under compulsions and motives that 

have no relation to performance of [the Court’s] Article III functions.’ Id., at 

277.” New Hampshire v. Maine, Report of the Special Master of October 8, 

1975, at 3. Nevertheless, he submitted the proposed consent decree to the 

Court for its consideration. But, with it, he provided his own 

recommendation as to the appropriate lateral boundary should the Court 

reject the parties’ negotiated line. 

In a nutshell, the Court did not share the master’s concern that adoption 

of the proposed consent decree would be inconsistent with its ruling in 

Vermont v. New York. It said, “the Court may give effect to the States’ 

agreement consistently with performance of our Art. III function and duty.” 

363 U.S. at 367. It reasoned that the 1740 decree actually fixed the line and 

the parties merely agreed on the meaning of that decree. “Vermont v. New 

York does not proscribe the acceptance of settlements between the States 

that merely have the effect, as here, of reasonably investing imprecise terms 

with definitions that give effect to a decree that permanently fixed the 

boundary between the States.” Id. at 369. The agreed upon boundary was 

described in a final decree of the Court. 

Although the special master’s recommendation as to a line became 

moot, some of his work may be applicable to future controversies. To begin, 

he reasoned that the “thalweg” (or middle of the navigation channel) 

concept was not in common use in 1740. George II was, therefore, unlikely 

to have been referring to a navigation channel as the boundary when he 

described the “middle of the river” and “middle of the harbor.” He also 

found “legislative history” that supported that interpretation. Report at 41. 

For these reasons, the master recommended that geographic midpoints 

must have been intended and he used them as termini of his proposed 

closing line. 

He also made much of the fact that the Crown would not have 

235. The parties also stipulated that strict application of the equidistant principle, referred to in Article 

12 of the Convention and applied in Texas v. Louisiana, would produce an “inconvenient and unworkable” 

boundary. New Hampshire v. Maine, Report of the Special Master of October 8, 1975, at 3. 

Part One 171 

delimited a boundary in the open sea because it claimed no rights there 

itself. Report at 47-48, citing United States v. California, 332 U.S. 19 (1947) 

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

Finally, Justice Clark reviewed Article 12 of the Convention. His 

recommended boundary ran from the geographic middle of the entrance of 

Portsmouth Harbor to the geographic middle of the entrance on Gosport 

Harbor on the Isles of Shoals. It was not an equidistant line. Article 12 of 

the Convention favors an equidistant line but recognizes that historic title 

or special circumstances may dictate another boundary. The master found 

no historic title. He did conclude that a number of special circumstances 

supported his line. Among these were: the existence of the Isles of Shoals,236 

the mainland coastline (to which the proposed line is perpendicular), 

agreement that the 1740 decree controlled the boundary determination, 

history, usage, ease of enforcement, and an equitable result. 

Although the Court had no occasion to comment on these factors, 

having adopted the parties’ negotiated settlement, it did acknowledge a role 

for the Convention and its special circumstances exception. Paragraph 9 of 

its final decree in the case provides that “the lateral marine boundary 

between New Hampshire and Maine connecting the channel termination 

points described in paragraphs (6) and (8) above has been determined on 

the basis of the ‘special circumstances’ exception to Article 12 of the 

Convention on the Territorial Sea and the Contiguous Zone (15 U.S. 

Treaties 1608) and of the location of the Isles of Shoals which were divided 

between the two States in their colonial grants and charters.” New 

Hampshire v. Maine, 434 U.S. 1, 3 (1977). 

His analysis may provide guidance for future litigants. 

These then are the tidelands decisions. They tell the story of a half 

century of controversy between the federal government and the coastal 

states over rights in submerged lands. But in doing so they do much more. 

Because the Supreme Court adopted principles of the Convention on the 

Territorial Sea and the Contiguous Zone for purposes of delimiting 

Submerged Lands Act grants, these decisions describe boundaries applicable 

to numerous other state and federal statutes that apply in “waters of the 

United States,” “territorial waters,” “navigable waters,” or equivalent state 

references. What is more, they provide much of the limited precedent for 

international boundary delimitations. 

We turn now to Part II in which the boundary principles that have 

evolved from these decisions are more thoroughly analyzed and organized 

in a manner more suitable for use by the practitioner. 

236. Offshore islands have traditionally been considered a ‘special circumstance’ that might justify 

deviation from an equidistant line. 
172 Shore and Sea Boundaries Part One 173 
174 Shore and Sea Boundaries Part One 175 
176 Shore and Sea Boundaries Part One 177 
178 Shore and Sea Boundaries Part One 179 
180 Shore and Sea Boundaries 
Part Two 

DELIMITING MARITIME 

BOUNDARIES 
INTRODUCTORY 

Despite the fact that maritime boundaries1 have always been important 

to the United States in both its international and domestic affairs, the exact 

location of those boundaries is only now becoming known. A 

congressional committee investigating the issue in 1952 concluded that 

“[a]lthough our country is now 163 years old, no one can say exactly where 

our seaward boundaries are located. Along much of our coastline, it is 

impossible to say, even within a few miles, where our territory ends and the 

high seas begin.” 

The problem was not one of articulating our claim; the United States has 

claimed a territorial sea since the first years of the Republic. Rather, it has 

been one of determining the baseline from which that claim is to be 

measured. The primary position of the United States has always been, and 

remains today, that maritime zones are measured from the shore. An 

alternative method, employing construction lines connecting promontories 

along the coast, and in some cases offshore islands, was employed by the 

British during the reign of the Stuarts in the mid-1600s. However, the 

United States specifically rejected such a system, retaining its “rule of the 

tide-mark.”2 

The United States has, however, traditionally recognized that minor 

embayments along the coast may be claimed by the coastal sovereign. Thus, 

the baseline, or coast line, from which maritime zones are measured is 

composed of the shoreline itself and the seaward limits of inland water 

bodies claimed by the United States. Congress has adopted this definition 

for purposes of the Submerged Lands Act, 43 U.S.C. 1301(c), United States 

v. Louisiana, 364, U.S. 502, 503 (1960), Louisiana Boundary Case, 394 U.S. 11, 

15 (1969); and the Supreme Court has concluded that the “coast line” in 

the Act and the “baseline” referred to in the 1958 Geneva Convention on 

the Territorial Sea and the Contiguous Zone, 15 U.S.T. 1606, are one and the 

same. United States v. California, 381 U.S. 139, 164-165 (1965). 

1. The term “boundaries,” when used in this volume, refers to the extent of zones of national jurisdiction. 

Political geographers often employ the term “limits” for this purpose and use “boundaries” to describe lines 

that separate the jurisdiction of adjacent or opposite sovereigns. 

2. The United States’ rejection of the headland theory is set out in a letter from Secretary of State Bayard 

to Secretary of the Treasury Manning, dated May 28, 1886, stating that: “We may therefore regard it as settled 

that so far as concerns the eastern coast of North America, the position of the Department has uniformly been 

that . . . the seaward boundary of this zone of territorial waters follows the coast of the mainland, extending 

where there are islands so as to place around such islands the same belt. This necessarily excludes the position 

that the seaward boundary is to be drawn from headland to headland, and makes it follow closely, at a distance 

of three miles, the boundary of the shore of the continent or of adjacent islands belonging to the continental 

sovereign.” 1 Moore, International Law Digest 718-721 (1906). That position was reaffirmed by the acting 

secretary of state in 1951. 1 Shalowitz, supra, 354-356. 

175 
176 Shore and Sea Boundaries 

With that conclusion, we are able to look to the Convention for answers 

to the many practical questions that arise in delimiting the coast line of the 

United States. United States v. California, 381 U.S. 139, 165 (1965). The 

remainder of this part is a review of the ways in which each of the coast line 

provisions of the Convention on the Territorial Sea has been interpreted by 

the Court, its special masters, and the executive branch in more exactly 

delimiting our maritime boundaries. 

CHAPTER 5 

THE NORMAL COASTLINE 

To conclude that the “normal” coastline is the shoreline, or the line at 

which the land meets the water, is merely to frame the issue, not resolve it. 

Recurring tides guarantee that the “shore” will be a continually moving line. 

The first step, then, in locating the normal coastline is to define that stage 

of the tide that will be used as the benchmark. 

THE LOW-WATER LINE 

Whiteman suggests that as many as six tidal lines may be recognized, 

ranging from higher high to lower low water. 4 Whiteman, Digest of 

International Law 138 (1965). Hydrographers may even identify more tidal 

datums. Certain early writers supported the use of the high-water line for 

purposes of measuring the territorial sea. Such a line has much in its favor. 

It is, in American jurisprudence, the usual seaward boundary of the upland 

estate. What is more, it is a conservative choice, in keeping with this 

country’s traditional policy of minimizing encroachments on freedom of 

the seas. Nevertheless, it did not catch on. 

Which Low-Water Line? 

United States foreign policy has always employed the “ordinary lowwater mark” for delimitation purposes. It is that line that was established 

as dividing state and federal interests in the pre–Submerged Lands Act 

tidelands cases. United States v. California, 332 U.S. 804 (1947); United 

States v. Louisiana, 339 U.S. 699 (1950); and United States v. Texas, 339 U.S. 

707 (1950). 

Likewise, the International Court of Justice concluded in 1951 that it is 

the low-water mark, not the high-water mark or a mean between them, 

which has been accepted in international practice for purposes of delimiting 

the territorial sea. Fisheries Case, I.C.J. Reports, [1951], p. 128. 

The Submerged Lands Act and 1958 Convention are in accord, albeit 

through slightly different terminology. The Act refers to the “ordinary lowwater” line. The Convention refers to the “low-water line along the coast as 

marked on large-scale charts.” 

Thus, the issue is reduced to determining which of a number of 

alternative low-water lines is to be employed. 

177 
178 Shore and Sea Boundaries 

The Charted Line 

The question was first considered by the Hague Convention on the law 

of the sea in 1930. However, by that time countries were already publishing 

official charts using a variety of low-water lines, and no consensus could be 

reached on a single datum. Although no treaty evolved, a draft article 

provided simply that the line of ordinary low water would be used, with the 

proviso that it could not appreciably depart from the line of mean lowwater spring tides.3 Although the proviso was not retained in the 1958 

Convention, commentators do not anticipate problems from its absence. 

It is clear that the failure to choose a single low-water line in 1958 

resulted from the same practical problem that had confronted the conferees 

in 1930; state practice was already established and there appeared to be no 

compelling reason to fashion a rule that would require modification of 

entire charting systems. 

Thus, the selection of a particular low-water datum for charting 

purposes is within the discretion of the state involved.4 Yet that selection 

may have a significant effect on the seaward limit of a particular state’s 

jurisdiction. For example, as Prescott points out, the use of extreme lowwater datum not only has the immediate effect of pushing the territorial sea 

to its seaward limit, it also increases the likelihood that a seabed feature will 

extend above that datum, qualifying as a low-tide elevation and further 

extending jurisdictional zones. Prescott, supra, at 47. 

Of course, the contrary may occur when using the line for bay 

delimitation purposes. The more extreme the low-water line chosen, the 

smaller the water area within each coastal indentation. In close cases, the 

difference may be sufficient to prevent the indentation from meeting the 

semicircle test. If that occurs, waters that might have qualified as inland 

using a more conservative low-water line will become territorial seas and 

high seas simply through the selection of a more extreme datum.5 

The United States Supreme Court has long since resolved the tidal 

datum issue for purposes of American jurisprudence. In its decree in the 

3. This line is obtained by measuring low waters when the maximum declination of the moon is 23 

degrees 30 minutes. 

4. McDougal and Burke, The Public Order of the Oceans at 327 (1962); Prescott, The Maritime Political 

Boundaries of the World at 46 (1985). The United States, for example, altered its charted datum along some 

coasts in recent years. Pursuant to the National Tidal Datum Convention of 1980, it now uses a single, uniform 

tidal datum system for all of its marine waters. 

5. Prescott suggests that a state may elect to avoid such dilemmas by picking and choosing among 

potential datums as best suits its purposes along a particular coast, Prescott supra at 47, even to the extent of 

adopting a high-water line as the coastline if necessary to meet the semicircle test, id. at 60. Although it is not 

unusual to find more than one datum employed by a state, because of different tidal characteristics along 

different coasts, it is doubtful that a court would countenance a blatant abuse of the right to select. The 

Convention appears clear that it is a low-water line that will be used, and not a high-water line. 

Part Two 179 

first California case, it ordered that the federal government has paramount 

rights in the submerged lands seaward of the “ordinary low-water mark.” 

United States v. California, 332 U.S. 804, 805 (1947). It then appointed a 

special master to, among other things, give specificity to that term. 

Unlike the east coast of the United States, California has two low tides 

a day, of unequal height. The federal government argued that in such 

circumstances “ordinary low water” should be computed by averaging all 

low tides. “Ordinary” was acknowledged not to be a term of art and the 

government contended that it should be equated to “mean,” which would 

then encompass all low tides, not just all lower-low tides. 1 Shalowitz, 

supra, at 163. 

California urged the contrary, pointing out that mean lower low water is 

the datum used for hydrographic surveys and navigation charts of the 

California coast, is required by the Corps of Engineers, and is used by the 

State Lands Commission. United States v. California, Report of the Special 

Master of October 14, 1952, at 41. 

The special master could find no indication of what the Court intended 

in its use of the term and opted for the mean of all low tides for the 18.6-

year tidal cycle. Id. at 39-40. The Court held otherwise. It concluded that 

“California’s position represents the better view of the matter.” United States 

v. California, 381 U.S. 175, 176 (1965). The Court ultimately ordered that, 

for purposes of the California coast, ordinary low water is the average of 

only the lower of the daily low tides over an 18.6-year period. 

The Supreme Court’s conclusion appears to have been greatly 

influenced by the fact that the official federal charting agency depicted the 

lower low-water line on its charts of the California coast and did not depict 

the mean of all low tides. The result would appear to be reasonable and 

conforms to the Court’s general position that the same baseline would be 

used for international and domestic purposes. 

The lesson to be derived is that the line chosen by our official charting 

agency to depict as a low-water line will be used as the “ordinary low-water” 

line for purposes of the Submerged Lands Act. United States v. California, 

381 U.S. 175, 176 (1965). (Figure 25) 

The Actual Line 

That is not to say that the line depicted on a particular chart accurately 

portrays the baseline. The Convention’s reference to “the low-water line 

along the coast as marked on large-scale charts” refers to the particular 

datum selected for that purpose, not to the line drawn on the chart. The 

latter may be incorrect through error in the original or may simply be 

outdated. Or, because of scale, the low-water line may not even appear on 

a particular chart. In all such cases, the baseline is the actual low-water line, 
180 Shore and Sea Boundaries 

Figure 25. High- and low-water lines. The high-water line is depicted with a solid line 

and the low-water line is depicted with a dotted line. (Based on NOAA Chart 11438) 

defined according to the principles that the charting agency purports to 

employ for that coast.6 

Comments from members of the International Law Commission, 

during their preparation of the draft articles that led to the 1958 

Convention, make their intent clear; a charted line that departs appreciably 

from the actual low-water line could be challenged in any legal tribunal.7 

6. At least one eminent authority may have concluded the opposite, stating that “[i]t is important, too, to 

note that it is the charted low-water line that is relevant, and not necessarily the low-water line as it actually exists 

at the particular time an incident occurs.” Beazley, Maritime Limits and Baselines: A Guide to Their Delineation, The 

Hydrographic Society, Special Publication No. 2, 1978. However, the intent of the Convention’s drafters appears 

to support American practice discussed below, that is, that the legal coastline is the actual coastline, not a line 

drawn on a map, and the limits of maritime jurisdiction are measured from that actual coastline. However, 

Commander Beazley’s statement may be reconciled with American practice in that he apparently refers to the 

coastal state’s ability to assert jurisdiction over a vessel whose master, relying upon incorrect charts, unwittingly 

enters the territorial sea. Although the actual coastline has been employed by American courts rather than 

outdated or incorrect charts, the litigation has involved the establishment of offshore boundaries between the 

federal and state governments. It is not so clear that a mariner could be successfully prosecuted for inadvertently 

sailing into American waters in similar circumstances. 

7. Typical summaries of the participants’ positions include the following: 

“If the low-water mark on official charts departed appreciably from the line of mean low-water spring tides, 

those charts would not be accurate and their validity would be questioned by any legal tribunal.” Mr. Amado, 

Yearbook of International Law Commission 1952, Vol. I, p. 172. 

“To accept a line indicated on official charts which, incidentally, frequently omitted to show the low-water 

mark properly, would be inconsistent with the judgement of the Court.” Mr. Hudson, Id. at 173. 

“If a dispute arose as to whether a chart did or did not ‘appreciably’ depart from that criterion, it could be 

referred to an international tribunal.” Mr. Yepes, id. at 178. 

“In order to guard against abuse they had added a proviso that the line indicated on the chart must not 

depart appreciably from the more scientific criterion.” Id. at 178. 

Part Two 181 

The question has arisen in two of the tidelands cases. In United States v. 

Louisiana the state argued that the Convention’s drafters purposely adopted 

the charted rather than the actual coast line, knowing that charts would err 

on the side of safety. Therefore, it said, the federal government should not 

be permitted to disclaim the coast line as depicted on its own charts to 

prove erosion and a more landward Submerged Lands Act grant than would 

result from using the charted line as a baseline. 

By the time that the state made this argument to the special master, the 

Supreme Court had already directed that the master determine, among 

many other things, the existence or nonexistence of certain islands in 

dispute off the Mississippi River delta. Louisiana Boundary Case, 394 U.S. 11, 

40-41 n.48 (1969). From this the master concluded that “the Court must 

be saying as a general principle, as insisted by the United States, that at least 

in certain instances the Special Master may look beyond the charts of the 

area involved to the actual facts.” United States v. Louisiana, Report of the 

Special Master, at 25 (July 31, 1974). The master cited a federal concession 

that “extrinsic evidence is admissible to show significant deviations on such 

charts from the actual low-water line, in which case the actual low-water line 

prevails.” Id. at 43. He then went on to apply the best and most recent 

evidence to determine the location of extensive areas of the Louisiana 

coastline, sometimes to the advantage of the state and sometimes to the 

federal benefit. 

California made a similar argument in the phase of its tidelands cases 

that considered the propriety of using piers as base points from which to 

measure the state’s Submerged Lands Act grant. By then the federal 

government had published nautical charts that included a line depicting the 

outer limit of the territorial sea. There was no doubt that in some instances 

that line had been constructed by swinging 3-mile arcs not only from the 

natural coast line, but from some of the piers at issue.8 

California contended that “pursuant to Article 3, the United States is 

bound by these charts and may not now argue against using the piers for 

measuring the territorial sea.” United States v. California, Report of the 

Special Master, at 25 (August 20, 1979). The United States argued to the 

contrary and offered witnesses who explained how such errors might have 

occurred at various stages of the printing process. Dr. Robert Hodgson, then 

geographer of the Department of State, testified that the charts did not 

accurately represent the United States’ position with respect to the limits of 

the territorial sea and opined that where charts are incorrect, the actual coast 

line should be used. Id. at 16. The special master adopted that view, id. at 

25, and noted that a disclaimer included on the charts governed just such 

circumstances. Id. at 25. He recommended against treating the charts as 

conclusive evidence of the location of the coast line. 

8. At trial, the charts were also shown to include a number of unrelated errors in the depiction of the 

territorial sea line. 
182 Shore and Sea Boundaries 

The Supreme Court adopted that recommendation, saying “[t]he fact 

that every National Ocean Survey chart of the California coast ‘officially 

recognized’ by the United States displays a black line connoting the coastal 

low-water mark following the configuration of the seaward edge of the 16 

structures, as it does groins, breakwaters, and other structures that extend 

seaward, is likewise not dispositive. We agree with the master’s finding that 

the charts contain an aggregate of errors and in many places depict the 

territorial sea without regard to the coast line. And each chart, as the Master 

found, includes a disclaimer to that effect.” United States v. California, 447 

U.S. 1, 6-7 (1980). 

The proposition is, therefore, well settled in American law. It is the 

actual low-water line and not a charted line that is to be used as the baseline 

under the Convention. 

In practice, the charted line is clearly the starting point in each effort to 

locate the low-water line. The party that expected that that line erred to its 

detriment has offered evidence to contradict the chart. Two immediate 

questions arise under the rules just stated. First, to what extent must the 

chart be in error to justify departing from its lines? Second, what kind of 

evidence will be required to justify such departures? 

As set out, the rule might be read to require a chart error of some 

magnitude to justify putting the chart aside and relying on outside evidence 

to establish the location of the coast line. That has not been the practice. In 

fact, both the federal government and the states have offered evidence of 

relatively minor deviations that has been accepted by the special masters 

without objection, at least on this ground, from the opposition. The 

approach makes sense in that it results in final decrees that describe a coast 

line based upon the most recently available information.9 

More difficult has been the question of the nature of evidence that 

should be required to disprove a charted coast line. Louisiana argued to the 

special master that a chart should not be changed with evidence of lesser 

reliability than that used to produce it in the first place. Specifically, the 

state contended that features along the Louisiana coast that had been 

located during a hydrographic survey should not be deleted as base points 

merely because they did not appear in a subsequent photogrammetric 

survey.10 The master did not accept that constraint on either party’s right to 

9. This procedure is not, of course, an unfavorable reflection on either the charting process or the National 

Ocean Service, which produces those charts. Because there are practical limitations on how often a particular chart 

can be updated, and the coastline is constantly changing, it is understood by all that it would be pure coincidence 

for a given chart to be precisely accurate even by the time it is printed. Indeed, it is routine for the litigants to rely 

upon the National Ocean Service’s methods and experts in proving the actual low-water line locations. 

10. Alaska made a similar argument with respect to the feature off Prudhoe Bay known as Dinkum Sands. 

In fact, the National Ocean Service typically makes such alterations when convinced by any subsequent evidence 

that a change has occurred since an original survey. To do otherwise would be to perpetuate known errors in a 

chart, which have resulted from erosion or accretion, simply because resources are not available for regular 

hydrographic surveys. 

Part Two 183 

offer evidence of the actual location of the low-water line. It would now 

seem safe to conclude that there is a presumption that the low-water line is 

as charted but that a preponderance of evidence, of whatever type, may 

result in a modification of that line. 

No Low-Water Line Charted 

Some experts have been concerned that a low-water line may not be 

depicted on a nation’s official large-scale charts. Some countries, for 

example, simply do not publish such a line, while others may do so 

generally but do not on particular charts either because surveys are 

incomplete or the chart scale is inadequate.11 

For example, McDougal and Burke note that the United States itself 

commented that the draft article was ambiguous for this reason, McDougal 

and Burke, The Public Order of the Oceans 326 (1962); but the authors 

conclude, properly it would seem, that the provision should not be read to 

require the publication of a low-water line. Id. at 326. Clearly, the 

Convention did not contemplate that each state would produce a new set of 

charts upon which the low-water line is specifically delineated as a baseline. 

Beazley, supra, at 5. 

The United States, for one, does not publish a low-water line for 

portions of its coast. Although the policy is to include such a line, it is 

occasionally missing either because its exact location is unknown, as is 

sometimes the case on extensive mud flats or in areas of mangrove swamp, 

or because at the chart’s scale the low-water line cannot be depicted 

separately from the high-water line.12 (Figure 26) 

Commentators have occasionally concerned themselves with the 

definition of “large-scale” because that term appears in Article 3 and was 

used by the International Court of Justice in the Anglo-Norwegian Fisheries 

11. See: Griffin, The Emerging Law of Ocean Space, 1 The International Lawyer 548, 559; Churchill and 

Lowe, The Law of the Sea26 (1983). 

12. This will occur, for example, where the line representing the high-water line, because of scale, is 

actually wider than the distance between mean high water and mean low water. It is easy to understand the 

likelihood of this event when one realizes that at a map scale of 1:100,000 the high-water line as depicted will 

actually represent 80 feet on the ground. Griffen, Jones and McAlinden, Establishing Tidal Datum Lines for Sea 

Boundaries (1967). The matter was put at issue by a Cuban fisherman arrested by the United States for 

operating within the United States’ then 12-mile exclusive fisheries zone off the coast of Texas. The nearest 

point on the coast was sufficiently steep that the low-water line and high-water line could not be depicted 

separately and only the latter was shown. The defendant contended that he was denied due process because 

the Convention requires maritime jurisdiction to be measured from the low-water line and he was not put on 

notice of the location of that datum. His conviction was upheld by the United States Court of Appeals for the 

Fifth Circuit. United States v. Sorina, No. 74-325 (S.D. Tx. Sep. 9, 1974), aff’d. without opinion, 511 F.2d 1401 

(1975). 

The Sorina decision stands only for the proposition that there is no technical requirement for publication 

of the low-water line. Sorina should have been able to conclude that by being within 10.5 miles of the highwater line he was even closer to the low-water line. A defendant who had in fact been misled by properly using 

charts that turn out to be inaccurate would, presumably, have a much better case, but not necessarily based 

upon the language of Article 3. See: McDougal and Burke, supra, at 322 and 327. 
184 Shore and Sea Boundaries 

Figure 26. High-water line only. Here the high- and low-water lines are 

too close to one another to be depicted separately at the chart scale. 

(Based on NOAA Chart 11438) 

Case. One suggests that the Court and the drafters of the Convention 

intended planning charts of 1:1 million or 1:2 million, rather than 

navigation charts.13 Another suggests that large-scale refers to 1:80,000 or 

larger.14 A third opines that the Convention must refer to the largest scale 

available of the particular coastline.15 

American practice has led to no litigation over this term. The federal 

government publishes its territorial sea limits on the largest scale series of 

charts that covers the entire coast. On the Atlantic and Gulf coasts, this is 

1:80,000. A smaller scale must be used on the west coast and for Alaska in 

order to get complete coverage. However, where questions arise, it is the 

policy of the Baseline Committee to consult the largest scale chart available. 

13. 2 O’Connell, The International Law of the Sea 646 (1982). Charts at these scales would rarely show 

both high- and low-water lines. 

14. Griffin, supra, at 559. This is, in fact, the scale of charts of the east coast of the United States upon 

which the United States publishes its territorial sea limits and has been described by Special Master Armstrong 

as within the meaning of the Convention. United States v. Louisiana, Report of the Special Master, supra, at 24. 

See: Minutes of the Baseline Committee of July 27, 1970. 

15. Beazley, supra, at 6. 

Part Two 185 

What is more, as previously discussed, where true contentions arise, outside 

evidence will be introduced to prove the location of a coast line regardless 

of the scale of the relevant chart. Because Article 3 has been interpreted to 

refer to the type of low-water line employed by the particular state, rather 

than the depiction of that line in a particular place, the definition of “largescale” becomes meaningless. The low-water line to be used on a given coast 

is the same regardless of scale.16 

The Ambulatory Low-Water Line 

A final element of the normal low-water line must be mentioned, that 

being its ambulatory nature. The coast line, or baseline, is the mean lowwater line. As that line moves landward and seaward with accretion and 

erosion, so does the baseline. As the baseline ambulates, so does each of 

the maritime zones measured from it.17 

From the foregoing, we can conclude that the “normal” baseline 

referred to in Article 3 of the Convention is that low-water datum that has 

been selected by the state for purposes of charting a particular coast. It is 

not the line as marked on a chart but the actual line defined through 

methods employed by the charting agency. Although the chart may provide 

a presumption of that line’s location, extrinsic evidence will be permitted to 

prove its actual location and no particularly oppressive burden of proof 

seems to be required. Although some language may suggest that charts may 

be challenged only if they contain significant deviations from the actual 

low-water line, that has not been the practice. The Convention’s reference 

to “large-scale” charts has not created litigation issues and should not unless 

a charting agency is found to use different low-water datums for larger scale 

charts than it does for smaller. Finally, the “normal” coastline is 

ambulatory. 

Man-Made Coast Line 

The foregoing applies whether changes occur as a result of natural 

processes, through the intervention of man-made structures, or entirely by 

artificial means. As Special Master Arraj noted in United States v. California, 

“[t]he statute [Submerged Lands Act] does not define the term ‘coast’ and 

16. For a more detailed discussion of the importance of chart selection in boundary delimitation see 

Smith, A Geographical Primer to Maritime Boundary Making, 12 Ocean Development and International Law 

Journal 1 (1982). See also: 2 O’Connell, supra, at 636. 

17. This rule has traditionally applied to the states’ Submerged Lands Act grants as well as the territorial 

sea, contiguous zones and exclusive economic zone. However, an amendment to the Submerged Lands Act 

provides that when an offshore boundary has been established by final Supreme Court decree, it will remain 

fixed in that location regardless of changes in the coast line. 43 U.S.C. 1301(b). 
186 Shore and Sea Boundaries 

there is no indication in the Act as to whether the term was intended to 

encompass only the natural shore or the natural shore as modified by 

manmade structures protruding into the open sea.” United States v. 

California, Report of the Special Master of August 20, 1979, at 22. 

The question arose early in the California litigation. The state took the 

position that areas of landfill in what used to be sea and areas of natural 

accretion that had been prompted by a nearby jetty or groin should be used 

as base points from which to measure its submerged lands rights. (Figure 

27) The federal government contended that title should not be affected by 

changes brought about by artificial causes. 1 Shalowitz, supra, at 103. The 

United States argued that it would be inequitable to permit California to 

extend its submerged lands jurisdiction, at the expense of the federal 

government, simply by constructing more and more coastal works or filling 

along the shore. 

Figure 27. Effects of groin or jetty. Accretion and erosion caused by a 

groin or jetty result in changes in the legal coast line. 

The special master sided with the state, recommending that the artificial 

accretion be employed, and the Court adopted that position. United States 

v. California, Report of the Special Master of October 14, 1952, at 44-46. 

United States v. California, 381 U.S. 139, 176- 177 (1965). In fact, this 

conclusion is consistent with the United States’ international position that 

Part Two 187 

permits the use of such accretions as base points for measuring the 

territorial sea. Although the Court had already ruled that future wholesale 

changes in international legal principles for determining baselines would 

not be adopted to upset the Submerged Lands Act grants then being 

delimited, id. at 166-167, it concluded that the “relatively slight and 

sporadic changes which can be brought about artificially” did not present 

the same concerns. Id. at 177. 

Nor was the master or the Court particularly concerned over the federal 

allegation that states could use this device to push their submerged lands 

jurisdiction ever seaward. He pointed out that the United States, through its 

power over navigable waters, could prevent these feared consequences. All 

such construction in the navigable waters must be approved by the federal 

government. And, the master suggested, “it seems clear that in the future 

that aspect [the submerged lands consequences] of the matter can be, and 

probably will be, taken into account.” United States v. California, Report of 

the Special Master, supra, at 45-46. Both the master and the Court suggested 

that that consequence would be the proper subject of negotiation between 

the parties in the consideration of future applications for coastal 

modification. Id. at 46; United States v. California, 381 U.S. at 176. 

Both clearly anticipated that the federal government might condition 

approval of such applications on the states’ waiver of Submerged Lands Act 

consequences. The master said, “I think it would give an opportunity for 

the appropriate negotiations and agreement between the State and the 

United States at the time the artificial change is approved.” Report, supra, at 

46. The Court noted that, “the effect of future changes could thus be the 

subject of agreement between the parties.” 381 U.S. at 176. A subsequent 

special master agreed, saying, “the United States retains the ability to 

control any construction over navigable waters to condition such 

construction on an agreement not to alter the Submerged Lands Act 

boundary.” United States v. California, Report of the Special Master of August 

20, 1979, at 26. (Figure 28) 

This is the course that has been taken. The U.S. Army Corps of 

Engineers (Corps) regulations now require that the agency determine 

whether a proposed project will have submerged lands consequences, and, 

if so, consult the Departments of the Interior and Justice prior to the 

issuance of a permit. 33 C.F.R. 320.4(f). That is routinely done, and a 

number of permits have been issued only after the state involved has agreed 

to waive any extension of its Submerged Lands Act rights that otherwise 

accrue. 

The legal effect of this process has been twice tested in litigation 

between the United States and Alaska. The subject of United States v. Alaska, 

Number 118 Original, was a substantial jetty constructed to serve as a 
188 Shore and Sea Boundaries 

Figure 28. Jetty at the mouth of the San Diego River, California. Such 

structures, when connected to the upland, form part of the coast line. 

(Photo by Donna M. Reed) 

harbor for the community of Nome. The regulatory process was followed. 

The necessary Corps permit was sought and, after Alaska agreed that its 

Submerged Lands Act rights would not be extended by the jetty, the permit 

was issued. However (and despite the history just outlined), the state 

“reserved” its right to challenge the federal government’s authority to so 

condition the issuance of permits. Soon thereafter, the United States 

conducted an outer continental shelf lease sale in the vicinity. Relying on 

the state’s waiver, the Department of the Interior included in the sale 

submerged lands that were more than 3 nautical miles from the natural 

shoreline but within 3 miles of the jetty. Alaska brought an Original action 

in the Supreme Court contesting the United States’ authority to extract a 

waiver and claiming title to all submerged lands within 3 miles of the jetty. 

The issue was strictly legal and the parties asked that it be considered by 

the Court without the appointment of a special master. The Court agreed. 

Acknowledging that the Corps could properly consider “the public 

interest” in evaluating a permit application, Alaska nevertheless argued that 

the federal government’s proprietary interest in submerged lands did not 

Part Two 189 

fall within that rubric. The United States pointed to the Court’s recognition 

of just such authority as part of its rationale in accepting artificial structures 

as part of the coast line in the first place. 

The Supreme Court accepted the federal position. “Whether an artificial 

addition to the coastline will increase the State’s control over submerged 

lands to the detriment of the United States’ legitimate interests” was 

determined to be an appropriate question of “public interest.” United States 

v. Alaska, 503 U.S. 569, 585 (1992). The states cannot have it both ways. To 

enjoy the direct benefits of an artificial extension of their coast lines, they 

may be required to waive any collateral benefits in the nature of extended 

title to submerged lands. 

The federal government tested the applicability of the Corps’ regulation 

in a slightly different context. An extension to the ARCO Pier, near Prudhoe 

Bay, Alaska, was constructed in the fall of 1976. It became necessary when 

unexpected early arctic ice held vessels offshore, preventing them from 

offloading supplies and equipment needed through the upcoming winter. 

A permit was sought for the construction but, in the emergency, the Interior 

and Justice Departments were not notified and no waiver of submerged 

lands consequences was sought or acquired. 

As one of 15 issues in United States v. Alaska, Number 84 Original, the 

United States claimed that because Corps regulations had not been 

followed in evaluating the permit, the construction was illegal and could 

not deprive the federal government of title to submerged lands within 3 

miles of the extension but more than 3 miles from the original jetty or 

natural coast line.18 

Special Master Mann recommended a finding for the state. He pointed 

out that the Trans-Alaska Pipeline Authorization Act compelled the issuance 

of federal permits “necessary for or related to” the operation of the pipeline 

system and authorized the waiver of “procedural requirements . . . .” 43 

U.S.C. 1652(b)-(c). Report at 326. In addition, he noted that agency action 

is entitled to a presumption of legality.19 Finally, he pointed to the Supreme 

Court’s treatment of a spoil bank along the Louisiana coast. That feature 

had been constructed without Corps approval at all, yet was determined to 

be a proper part of the coast line. United States v. Louisiana, 394 U.S. 11, 41 

n.48 (1969). 

The United States did not take exception to the recommendation and 

the disputed portion of ARCO Pier will be used for measuring Alaska’s 

Submerged Lands Act grant. 

18. The original section had been constructed with a permit issued following the proper processes. 

19. Citing Citizens to Preserve Overton Park, Inc., v. Volpe, 401 U.S. 402, 415 (1971). 
190 Shore and Sea Boundaries 

Harborworks 

When the Supreme Court decreed, in United States v. California, 382 U.S. 

448 (1966), that the coast line encompassed subsequent natural or artificial 

changes, it specifically included “outermost permanent harbor works that 

form an integral part of the harbor system . . . .” Id. at 449. That concept is 

not derived directly from the Submerged Lands Act, but from Article 8 of the 

Convention, which had been adopted by the Court for purposes of 

implementing the Act. 

Article 8 provides that, “[f]or 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.” It is 

apparent from the language that the drafters intended that certain artificial 

structures along the coast would be treated as part of the baseline, but just 

which features are to be included is not always clear. 

Shalowitz defined harborworks as, “[s]tructures erected along the 

seacoast at inlets or rivers for protective purposes, or for enclosing sea areas 

adjacent to the coast to provide anchorage and shelter.” 1 Shalowitz, supra, 

at 292. The Supreme Court has quoted that definition with favor in United 

States v. Louisiana. 394 U.S. 11, 37 n.42 (1969). 

Clearly, breakwaters that form artificial harbors are included, such as 

those at the port of San Pedro (Los Angeles’s harbor). Similar structures at 

the mouths of rivers, such as the Sabine between Texas and Louisiana, are 

equally obvious. But less apparent are jetties of similar construction built 

out from the coast to discourage the erosion of beaches. Although such 

structures would not appear to fall within the Shalowitz definition, they 

were accepted as the base points by the Supreme Court and the Baseline 

Committee. It would thus appear that beach erosion jetties, which are 

sufficiently substantial to meet the Convention’s requirement of 

permanence, will be treated as part of the coast line, although they will 

seldom have a significant effect on the outer limit of the territorial sea. 

Commentators suggest that to be an “integral part of the harbor 

system,” a structure must be physically attached to the mainland coast.20 All 

American examples meet that requirement, with the proviso that there need 

not be a continuous low-water line from the mainland coast to the portion 

of the structure being used as a base point. The Zuniga jetty at San Diego 

provides an example. The jetty leaves the mainland above water, then dips 

below mean low water for a stretch before reappearing and continuing to its 

seawardmost point opposite Point Loma, a parallel natural formation. The 

federal government has, at least since 1971, treated the seawardmost point 

20. McDougal and Burke, supra, at 422. See also: Bowett, The Legal Regime of Islands in International Law 

(1979) at 138, whose particular concern with islands leads him to remind us that to conclude otherwise is to 

chance running afoul of the well accepted principle that artificial islands may not be used as base points. 

Part Two 191 

on the Zuniga jetty as the “outermost permanent harbour work” and part of 

the coast of California. Coastline Committee Minutes of December 21, 

1976.21 In 1977 the state and federal government proposed, by joint 

motion, a decree that listed agreed-upon base points, among them “[t]he 

Zuniga jetty at San Diego (including the southern seaward end of this entire 

structure).” United States v. California, 432 U.S. 40, 42 (1977).22 A similar 

agreement has been reached with Florida. United States v. Florida, Number 

52 Original, Joint Prehearing Statement of September 1971 at 68-69. 

Although stretches of the Zuniga jetty may fall below mean low water 

simply because it has not been maintained to its intended elevation, similar 

jetties, such as those at the mouth of the Sabine River, have intentional gaps 

to permit the passage of small boats. That fact has not prevented their 

acceptance as harborworks to their entire length.23 The Supreme Court’s 

special master in Texas v. Louisiana concluded that “[u]nder Article 8 the 

‘outermost permanent harbour works’ in this case are the jetties at the 

entrance of the Sabine River into the Gulf of Mexico.” Texas v. Louisiana, 

Report of Special Master Van Pelt of October Term 1974, at 29. 

It is clear, however, that only that portion of the harborwork that has a 

low-water line may be treated as part of the coast. Louisiana sought a more 

expansive interpretation in its tidelands dispute with the United States. The 

Corps of Engineers maintains dredged channels in the nearshore shallow 

waters of the Gulf of Mexico to permit oceangoing vessels to enter 

Louisiana’s ports. These channels are marked on navigation charts but are 

literally holes in the seabed rather than structures either on or above it. 

(Figure 29) The state contended that such channels “form an integral part 

of the harbour system,” are maintained at substantial public expense, and 

should, therefore, be considered harborworks. 

Louisiana reasoned that Article 3 dictates use of the low-water line 

“except as otherwise provided” and that Article 8 provides otherwise in the 

case of harborworks. The United States took the position that Article 8 

envisioned only raised structures. The Court accepted that latter 

interpretation, explaining that Article 8 does not provide an alternative 

“method” of determining the baseline, as the inland water articles do, but 

21. Although Pearcy suggested that the Zuniga jetty did not affect the limit of the territorial sea, that 

conclusion seems to have been based on the assumption that 3-mile arcs constructed from it would have been 

shoreward of similar arcs drawn from other coastal features, not because its use would be inappropriate. 4 

Whiteman, Digest of International Law at 263 (1965). 

22. The parties disagreed on whether this feature was also appropriate for use as a headland delimiting 

the inland waters of San Diego Bay, a question put to Special Master Arraj and, upon his recommendation, 

resolved in favor of the state in litigation that also involved the issue whether California’s piers should be 

treated as part of the coast line. 

23. In the case of intentional gaps, the result might be explained because the jetty itself is typically 

continuous, whether above or below water, or because the gaps represent a de minimus break in the structure as 

a whole. In either case, the result appears to represent a common sense interpretation of Article 8. 
192 Shore and Sea Boundaries 

Figure 29. Louisiana coast. This dredged channel off the Louisiana coast 

is not a harborwork for coast line purposes. (Based on NOAA Chart 11349) 

merely identifies specific structures, the low-water line on which is to be 

considered part of the coast. United States v. Louisiana, supra, 394 U.S. at 38. 

According to the Court, “[a]s part of the coast, the breadth of the territorial 

sea is measured from the harbor works’ low-water lines, attributes 

not possessed by dredged channels.” Id.24 The Court reiterated its 

24. The logical extension of Louisiana’s argument would have required that dredged channels, as part of 

the coast line, also qualify as headlands to juridical bays, a conclusion that not even the state was willing to 

assert, but that did not go unnoticed by the Court. Id. at 38 n.44. 

Part Two 193 

understanding that the term “harborworks” was meant to include structures 

and installations that are part of the land and in some sense provide shelter. 

Id. at 36-37. 

Other features have also been rejected as potential harborworks. The 

federal government has taken the position that as a general rule it will not 

use groins as base points for delimiting the territorial sea but will consider 

evidence that a particular groin is in fact permanent. Coastline Committee 

Minutes of December 21, 1976. (Although the accretion that accumulates 

because of the groins is always used. Id.) California has presented such 

evidence, and eight groins along its shores are now treated as part of the 

coast. Coastline Committee Minutes of December 17, 1976, and February 

25, 1977. Beazley is of the opinion that “structures such as cooling water 

intakes or sewage outfalls” may not be considered, even though they may lie 

above mean low water . The United States has not used such structures, or 

similar pipeline protective works, as part of the coast line. Coastline 

Committee Minutes of December 1, 1976. 

Piers Contrasted 

The most intense litigation under Article 8 has concerned the potential 

use of piers as part of the baseline. California, with few natural harbors but 

numerous coastal piers that are said to substitute, contended that such piers 

are in fact harborworks and base points. (Figure 30) The Supreme Court’s 

eventual conclusion was that they do not qualify, but the contention was 

too significant to dismiss with that conclusion alone. 

As usual, the analysis of both parties began with the meaning of the 

1958 Convention. California offered the testimony of the distinguished 

jurist Philip C. Jessup, one-time member of the International Court of 

Justice. Judge Jessup testified that, but for piers of many miles length, the 

Convention’s drafters intended to include all permanent structures erected 

on the coast and jutting out to sea as base points for territorial sea 

delimitation. For the United States, Mr. Elihu Lauterpacht, Queen’s 

Counsel, offered contrary evidence. Following extensive inquiry, which 

included comparisons of the French and English texts of the “legislative 

history” and explanatory notes to the Convention, the special master 

concluded that “[w]hen all is said and done it seems clear that the drafters 

of the Geneva Convention and the commentators simply did not think of 

or consider the question of artificial piers erected on the open coast and not 

directly connected with any conventional harbor.” United States v. 

California, Report of the Special Master of August 20, 1979, at 28. 

The parties did not, of course, base their cases entirely upon the hope of 

proving original intent. Each side also offered substantial evidence that 
194 Shore and Sea Boundaries 

Figure 30. Ocean Beach Pier, San Diego, California. Piers on pilings are 

not part of the coast line for purposes of delimiting maritime zones. 

(Photo by Donna M. Reed) 

piers did, or did not, fit the description contained in Article 8. Their 

physical construction, use, and effect on the natural coastline were all 

emphasized. 

All 15 piers at issue in the litigation have similar characteristics. All are 

built on pilings, stand some distance above the water, have a continuous 

flow of water beneath them, and are relatively permanent structures. All are 

permanently attached to the mainland. None is closely associated with a 

natural harbor, or haven for vessels. Because both parties had previously 

recognized certain artificial structures as appropriate base points, typically 

jetties and groins, the object here was to prove the similarities and 

differences between such structures and the piers at issue. 

The federal government emphasized the absence of a continuous lowwater line that could be used as a baseline. The California piers, as noted, 

are constructed on pilings. An expert for the United States, Dr. Weggel, 

estimated that 90 to 98 percent of the space beneath such a pier is water.25 

In its 1969 decision in United States v. Louisiana, the Supreme Court had 

refused to accept dredged channels as harborworks for that very reason.26 

25. Transcript of Denver hearings at 402-403. 

26. 394 U.S. at 36-40. 

Part Two 195 

California countered with the contention that neither the artificial 

structures already accepted by the Court nor the natural sand beach itself 

has a completely continuous low-water line.27 

The United States believed that using the pilings as base points created 

an unprecedented anomaly. Pilings would have to be considered either 

individual artificial islands, a conclusion that would seem to prohibit their 

use under Article 10, or artificial limits to an inland water body, the area 

beneath the pier. Each seemed, at the time, an equally unlikely conclusion. 

Nevertheless, the special master recommended that “the discontinuous 

nature of the low water line does not affect whether or not the structure is 

to be considered a part of the coast.” Report at 24. In so doing he reasoned 

that “[i]f the structure is part of the coast, then the perimeter of the structure, 

as delineated by a series of lines drawn tangent to, and connecting, the outer 

edges of the pilings, constitutes the coast line.” Id. 

Although we are not now faced with the issue, because the master 

ultimately ruled for the federal government on other grounds and his 

conclusions were adopted by the Court, there appears to be something 

wrong with the suggestion that the waters beneath the California piers 

might be inland waters although no more landlocked or protected than the 

immediately adjacent open sea. 

Alternatively, the United States argued that unlike jetties and groins, the 

California piers provided no coast protective function. They neither create 

an artificial harbor that would provide shelter during weather at sea, such as 

the harborworks at San Pedro, nor do they protect the beach from erosion, 

as do the groins and jetties considered by the Court along the Louisiana and 

California coasts. 

There was little or no disagreement on this point. The coastal experts 

concurred that not only did the piers have little or no effect on the natural 

shoreline, they were specifically designed to avoid such effects. And the 

master so found, Report at 21, as did the Supreme Court.28 

Finally, the United States contended that the piers might not meet the 

permanency requirement of Article 8. In fact, one of the piers originally 

claimed by the state, at El Segundo, was destroyed during the litigation. 

Nevertheless, the special master, who had visited most of the piers with 

counsel for the parties, concluded that they were indeed permanent for 

purposes of the litigation.29 

27. William Herron, a coastal engineer, testified that even sand beaches are approximately 20 percent 

voids. Transcript of Denver hearing at 361. 

28. United States v. California, 447 U.S. 1, 4 (1980). Judge Jessup testified that the piers might be said to 

have a coast protective function in that they provided a radar target and might, thereby, prevent vessels from 

running into the shore. Transcript of New York hearings at 33. The state never seriously pursued that theory. 

29. Report at 27. The piers are probably as permanent as the jetties and groins previously accepted as 

Article 8 harborworks. 
196 Shore and Sea Boundaries 

California took a different approach to the proof. It emphasized that 

along the California coast, largely barren of natural embayments, the piers 

at issue serve as artificial harbors and thereby qualify as harborworks and 

base points. As might be expected, the evidence on this point differed from 

pier to pier. Some had been constructed by oil companies for use by vessels 

supplying offshore rigs. At least one had a davit for launching private 

pleasure craft. But the majority had been constructed, and continue to be 

used primarily, as recreation piers for fishing and promenading. They were 

acknowledged by the state’s witness not to provide shelter for vessels.30 Nor 

are they listed as harbors in the Coast Pilot.31 From this the master 

concluded that the volume of shipping handled by the piers did not justify 

assimilating them to harborworks. Report at 29. 

In sum, the master concluded that the history of the Convention 

provided no guidance on the pier issue and rejected both parties’ theories 

on whether piers qualify under the language of Article 8. Nevertheless, he 

recommended that they not be treated as base points. This conclusion was 

reached by what the master characterized as a “practical” approach to the 

issue. Report at 26. He cited as his guide the notation of McDougal and 

Burke that “[t]he principle policy issue in determining whether any effect 

for delimitation purposes ought to be attributed to other formations and 

structures is whether they create in the coastal state any particular interest in 

the surrounding waters that would otherwise not exist, requiring that the 

total area of the territorial sea be increased.”32 The master then concluded 

that California’s piers create no such interest and recommended against 

their use as base points. Report at 29. 

California took exception to that recommendation before the Supreme 

Court. However, the Court agreed that the piers are neither coast protective 

works nor harborworks and adopted the position of the master.33 

30. Denver Transcript at 341. 

31. Id. at 407. (Federal witness) 

32. McDougal and Burke, The Public Order of the Oceans (1962) 387-388, cited in the Report of the Special 

Master, at 26. 

33. United States v. California, 447 U.S. 1, 4-6 (1980). See also, final decree at 449 U.S. 408 (1981). The federal 

government has traditionally declined to use piers as base points. See Minutes of the Coastline Committee of 

August 30, 1970; October 26, 1976; December 17, 1976; and December 21, 1976. The Committee specifically 

considered the possible use of the California piers in response to a petition from the state and declined to alter its 

previously established practice. Minutes of December 17 and 21, 1976. In 1959 the geographer of the Department 

of State wrote that “[t]he outermost of certain permanent installations associated with port facilities are construed 

as parts of baselines, and the territorial sea is measured from them. Piers and breakwaters are the most common 

examples.” Pearcy, Measurement of the U.S. Territorial Sea, Department of State Bulletin, June 29, 1959. That 

statement encouraged California until, during a deposition taken for purposes of the litigation, Dr. Pearcy explained 

that the passage did not refer to open-pile piers such as those along the California coast. 

Commander Beazley has taken the position that certain English piers, specifically designed for the berthing 

of ships, ought to be treated as base points. Beazley, Maritime Limits and Baselines: A Guide to Their Delineation(The 

Hydrographic Society, Spec. Pub. No. 2, 2d ed. rev. 1978) at 23. It is not clear whether the piers to which Beazley 

refers can be distinguished from those along the California coast. It is clear that the Supreme Court has rejected 

their use as base points in the United States. 

Part Two 197 

Existing Supreme Court decisions probably do not exhaust the possible 

types of structures that might be argued to constitute part of the baseline. 

Bridges, for example, may raise questions. In the article just mentioned, 

Pearcy concluded that “[b]ridges along the periphery of a coast, such as 

those connecting the keys on U.S. Highway No. 1 between Miami and Key 

West, are not covered by a law-of-the-sea convention . . . .”34 Since that 

article was written, however, the Court has twice considered the status of 

bridges. 

The first such occasion arose in United States v. Florida, Number 52 

Original, and involved the very series of bridges cited by Pearcy. The special 

master in that action had recommended that Florida Bay, bounded on the 

north by the Everglades and on the south by the Florida Keys, is a juridical 

bay. (Figure 31) In fact, neither party had taken that position in the 

proceedings before the master and it could only be reached upon the 

assumption that the Keys constitute, at least for these purposes, part of the 

mainland of Florida.35 The Florida Keys are clearly so widely separated, 

including one gap of 7 miles, that unless the bridges are also considered 

extensions of the mainland, the line of Keys would not qualify as the 

headland of a bay. 

The United States took exception to the recommendation and the 

Court, noting that the issue had not been presented before the master, 

returned it for further proceedings. At that stage the State of Florida 

accepted the federal position and a final decree was ultimately entered that 

did not include Florida Bay as inland water. Implicit in that determination 

is the assumption that the bridges connecting the upper Florida Keys are not 

part of the coastline. If they were, Florida Bay would, without question, 

qualify as a juridical bay.36 

The question of bridges also arose in the California piers case. One of 

the structures at issue there was not technically a pier but a bridge 

connecting an artificial island to the mainland. The island itself was built 

to accommodate offshore oil drilling. It is, in fact, the platform from which 

a large number of producing wells have been directionally drilled. (Figure 

32) Although the island, known as Rincon, is a substantial structure many 

acres in size, the state acknowledged that it could not be treated as part of 

the baseline because it is man-made. Nevertheless, the state argued that the 

bridge to the island should be considered a harborwork on the same basis 

34. Pearcy, supra, at 4-5. 

35. The Supreme Court itself had previously ruled that a bay is an indentation into the mainland and may 

not be formed by a string of islands unless those islands are so aligned that they may be construed to constitute 

an extension of the mainland. United States v. Louisiana, 394 U.S. 11, 60-66 (1969). 

36. It must be emphasized that the issue was never argued before the master or the Court. It reached the 

Court on a stipulated settlement by the parties after Florida determined to accept the federal position. 

Nevertheless, the final decree entered by the Court can be said to be consistent only with the understanding 

that these bridges, at least, are not part of the coast line of the United States. 
198 Shore and Sea Boundaries 

Figure 31. Florida Bay, Florida. The “bay” is formed by the mainland and 

islands connected by bridges. 

as the coastal piers in contention. Both the master and the Court rejected 

the state’s arguments. Neither Rincon Island nor the pier connecting it to 

the mainland is to be considered a harborwork.37 

The Florida and California bridges are much like the piers now rejected 

by the Court as base points. However, more substantial structures might 

present a more difficult case. For example, it would appear that certain 

causeways more closely resemble the jetties that have been accepted as part 

of the coast line. We might expect that they will be proposed for 

consideration either as base points themselves or as part of the mainland for 

purposes of creating headlands to bays. 

Spoil Banks 

The treatment of artificial spoil banks became a difficult issue in United 

States v. Louisiana, where a number of “fingers” of land had been created by 

dredges digging channels for offshore oil equipment to follow through the 

shallow waters of the Mississippi River delta and the adjacent Gulf. (Figure 

33) The United States pointed out that the banks were not useful, had not 

37. United States v. California, 447 U.S. at 7-8. 

Part Two 199 

Figure 32. Rincon Island off the coast of California. Neither the island 

nor the bridge to the mainland (left foreground) is part of the legal 

coast line. (Photo by C. Wishman) 

Figure 33. East Bay, Louisiana. Spoil banks are not part of the coast line. 

(Based on NOAA Chart 11361) 
200 Shore and Sea Boundaries 

been authorized, and were likely to be short-lived. It contended, therefore, 

that the features should not be treated as part of the coast line. With respect 

to spoil attached to the mainland, the Court was not persuaded, noting that, 

“[i]t suffices to say that the Convention contains no such criteria.” United 

States v. Louisiana, 394 U.S. 11, 41 (1969). 

Islands 

The coast line of an island is determined in exactly the same way as that 

of the mainland. Each island is generally understood to generate its own 

territorial sea and other maritime zones.38 (Figure 34) There is, however, 

some controversy as to what features qualify as islands. Article 10 of the 

Convention on the Territorial Sea and the Contiguous Zone provides that 

“[a]n island is a naturally formed area of land, surrounded by water, which 

is above water at high tide.”39 The definition contains three elements that 

have been the subject of litigation. Those will be discussed in turn. But first 

we note the particular significance of islands to the maritime boundary 

question. 

Dr. Robert Hodgson, the late geographer of the United States 

Department of State, estimated that there are “more than one-half million 

pieces of distinctly subcontinental land territory defined generally as 

islands, with a combined area worldwide exceeding 3,823,000 square 

miles.”40 Although many of these are within the territorial sea of a 

continent or other islands, many are not and generate maritime zones far 

larger than the area of the islands themselves. For example, an island of the 

smallest possible size would possess a territorial sea of 28.3 square miles 

38. We say “generally” because there may be two exceptions to this proposition. First, islands may occur 

within inland waters. The fact that such islands do not have their own territorial seas is apparently the reason for 

the wording of Article 10 (2) of the 1958 Convention, rather than the simple statement that all islands have their 

own territorial seas, as proposed by the International Law Commission. McDougal and Burke, supra, at 397. 

Second, although it is still true that all islands lying outside inland waters may generate territorial seas, 

Article 121(3) of the 1982 Law of the Sea Convention provides that more seaward maritime zones are not created 

by mere “rocks.” 

The existence of territorial seas surrounding islands has not always been taken for granted. When the 

American vessel, The Anna,was seized by a British privateer more than 3 miles from the mainland coast but within 

2 miles of an uninhabited island off the Mississippi River delta, the British admiralty court recognized a territorial 

sea around the island, not wholly in its own right but because it formed a “portico to the mainland.” The Anna, 

5 Rob. 373 (1805). Eventually, however, all islands were understood to generate maritime zones. 1 O’Connell, 

supra, at 185. The United States has followed this practice consistently, most often in distinguishing this method 

of treating islands individually from alternative archipelagic proposals. For histories of American practice with 

respect to islands, and citations to official government statements and judicial decisions, see United States v. 

California, Report of the Special Master of October 19, 1952, at 10-12; 4 Whiteman, supra, at 293; 1 Shalowitz, 

supra, at 161, 206, and 228; and Symmons, supra, at 2 and 84-88. British practice is in accord where islands lie 

outside the straight baseline system established by the Territorial Waters Order in Council of 1964. 1 O’Connell, 

supra, at 187-188; Symmons, supra, at 89. See also, Bowett, supra, at 16. 

39. The Supreme Court has also adopted this definition. United States v. California, 382 U.S. 448, 449 

(1965). 

40. Hodgson, Islands: Normal and Special Circumstances, in Law of the Sea: The Emerging Regime of the 

Oceans 137 (John K. Gamble and Giulio Pontecorvo eds. 1974). 

Part Two 201 

Figure 34. California mainland and islands with 3-mile maritime boundaries. 

The boundaries are constructed by an envelope of arcs from the coastlines. 

(After I Shalowitz, Figure 13) 

even with a minimum 3-mile claim.41 (Figure 35) According to Dr. 

Hodgson, a single minor island may command an exclusive economic zone 

of 125,000 square miles of adjacent ocean and seabed.42 What, then, 

qualifies as an island? 

Naturally Formed 

To begin, an island must be “naturally formed.” It is universally 

understood that artificial islands do not qualify as base points from which 

the standard maritime zones are delimited.43 It is less clear just what 

qualifies as a natural island. 

41. Department of State Publication, Sovereignty of the Seas 8 (1969). 

42. Hodgson, Islands . . . . supra, at 68. 

43. This is not to say that a state may not assert sovereignty over artificial islands or installations or even 

create limited safety zones around them. See: Law of the Sea Convention, Article 60; Papadakis, The 

International Legal Regime of Artificial Islands (1977); and Bowett, supra, at 5. McDougal and Burke point out 

that there are substantial policy reasons for treating the waters among houses constructed on piles on the ocean 

floor as inland (which would, presumably, result in the recognition of adjacent territorial seas) but even they 

do not suggest that the Convention permits that result. McDougal and Burke, supra, at 390. 
202 Shore and Sea Boundaries 

Figure 35. Insignificant islet with a 28-square-mile maritime zone. 

O’Connell notes that the term “naturally formed” is ambiguous and 

may refer either to the materials used in construction or to human 

intervention. O’Connell, supra, at 196. However, Symmons states that the 

usual view is that there must have been no human intervention whatsoever 

for a feature to attain insular status. Symmons, supra, at 36. That 

understanding would seem to be consistent with the legislative history of 

the provision.44 

The term “naturally formed” was not part of the originally proposed 

definition of an island. Early drafts of the article would have included 

among “islands” those features composed of natural materials even though 

placed on the seabed by man. Id. at 31-32.45 The American delegation 

expressed concern that governments might seek to extend maritime 

jurisdiction, and, thereby encroach on the high seas, by creating offshore 

islands with landfill. To preclude that possibility, the “naturally formed” 

requirement was added.46 From this, we can conclude that the provision 

44. Commander Beazley seems to agree that a structure of man-made materials does not qualify as an island 

but is less clear as to whether “reclaimed land” is precluded. Beazley, supra, at 24. 

45. This was consistent with the Harvard Research Group’s draft proposal. McDougal and Burke, supra, at 391. 

46. Id. at 4 and 36. 

Part Two 203 

must be interpreted to deny insular status to any feature that owes its 

existence to the direct intervention of man.47 

United States practice has been consistent with this concept. In an early 

decision, a federal court determined that the territorial sea did not extend 

from a beacon built on a permanently submerged reef.48 More recently, the 

Supreme Court noted that Rincon Island, a substantial artificial island 

constructed as a base for offshore petroleum drilling, does not qualify as an 

island because it is man-made.49 The Coastline Committee has also 

declined to make use of a lighthouse on a submerged feature as a base point 

for delimiting the territorial sea of the United States.50 The Supreme Court 

has established that spoil banks created by dredging channels through 

coastal waters are not part of the baseline, if severed from the mainland, 

because they are not naturally formed.

51 

The difficulty of distinguishing spoil banks from natural islands, 

especially some years after their creation, presents a factual problem. Dr. 

Hodgson suggested that the provision “naturally formed” might be 

interpreted as distinct from “naturally created.”52 Under that interpretation, 

an aging spoil bank whose present “form” is more properly attributable to 

natural processes over the years might become an appropriate base point. 

Although a possible interpretation, this suggestion is not consistent 

with the history of Article 10 or Supreme Court precedent. The better 

approach would seem to be in equating “formed” with “created” and 

47. The qualification that intervention be “direct” is not intended to exclude features that rise from the 

seabed as a result of natural processes but through the influence of a nearby man-made feature. For example, 

man-made jetties commonly cause the subsequent accumulation of accretion through what might be 

considered natural processes. If an artificial structure encouraged the growth of an insular feature, not attached 

to the structure itself, it is not clear that Article 10 would preclude the use of that insular feature as a base point 

from which to measure the territorial sea. Churchill and Lowe ask a similar question but do not suggest that 

the Conventions provide an answer. The Law of the Sea 37 (1983). 

48. United States v. Henning, 7 F. 2d 488 (S.D. Ala. 1925). 

49. United States v. California, 447 U.S. 1, 5 (1980). The matter came up in the phase of this case in which 

California sought to have coastal piers included as base points for measuring the territorial sea. One of the 

“piers” of interest to California is actually a bridge connecting Rincon Island to the mainland. Although the 

state argued that the bridge should be used as a base point, it recognized that under no circumstance could the 

man-made island be used; and the latter question was not an issue in the case. See: United States v. California, 

Report of the Special Master, August 20, 1979, at 29. 

50. Minutes of August 10, 1970. The Committee has, however, used the seaward tip of the Zuniga jetty, 

at San Diego Bay, as a base point. That structure may appear to be an artificial island but is in fact merely the 

seawardmost extension of a continuous harborwork that is connected to the mainland. Where it appears above 

water it qualifies as part of the coast line. The Supreme Court has also ruled that this structure forms the eastern 

headland of San Diego Bay. United States v. California, 449 U.S. 408 (1981). 

51. United States v. Louisiana, 394 U.S. 11, 41 n.48 (1969). In this instance the Court was specifically 

referring to banks that extend only above mean low water, but the “naturally formed” requirement applies 

equally to Articles 10 and 11 and there is no room to argue that a spoil bank that extends above high water 

should be accorded different treatment once severed from the mainland. 

52. Hodgson, Islands . . . , supra, at 13. 
204 Shore and Sea Boundaries 

establishing the juridical status of such features at the time of their 

creation.53 

Areas of Land 

The second requirement of island status is that the formation consist of 

“land.” That is, it must be composed not only of natural materials, as 

already discussed, but those materials must be in the nature of terra firma.

54 

The question arose in United States v. Alaska, Number 84 Original, when 

evidence indicated that a natural formation off the north slope of Alaska, 

which the state argued is an island, was found by the federal government to 

be composed of alternating layers of gravel, clear ice, and ice mixed with 

gravel. The formation, known as Dinkum Sands, varies in elevation but may 

occasionally appear above mean high water, and therefore arguably 

qualifies as an island, only through the introduction of this “excess” ice. 

The federal government argued that the formation’s elevation could not be 

calculated, for island qualifying purposes, without discounting elevation 

attributable to that ice. 

Professor Symmons, testifying for the United States, explained that 

“land . . . is something which is formed of truly terrestrial components such 

as sand, rock, coral, and truly organic compounds of that nature.”55 From 

this he concluded that “the mention of ‘land’ in Article 10 of the 1958 

Convention implies that an island for the purposes of that article must be 

composed of wholly terrestrial or organic substances.”56 

Other commentators are in agreement. Dr. Hodgson maintained that 

islands must be made of dirt, rock, organic matter, or a combination 

thereof.57 Likewise, Lumb has concluded that “[t]he areas must be a 

naturally formed area of land (rock, sand etc.).”58 

53. The Coastline Committee determined early in its existence that spoil banks would not be used as base 

points but recognized that occasionally it is difficult to determine from charts whether a feature is natural or 

man-made. It decided not to use features marked as spoil or that are obviously spoil because of location or 

description. However, if one cannot reasonably assume that a feature is spoil, it has been treated as natural. 

Minutes of August 3, 1970. Presumably, if a particular feature becomes the subject of litigation, its status will 

be a question of fact, whatever its treatment by the Committee. 

54. Symmons, supra, at 21. 

55. United States v. Alaska, Number 84 Original, transcript of proceedings before the Special Master, at 

1118. 

56. Id. at 1099. 

57. Hodgson, Islands: Special and Normal Circumstances, Gambell & Pontecorvo (eds.) Law of the Sea: 

Emerging Regime 148 (1974). 

58. Lumb, The Law of the Sea and Australian Off-Shore Areas, 2d. ed. 1978, at 14. See also: Papadakis, The 

International Legal Regime of Artificial Islands 93 (1977); and Johnson, Artificial Islands, 4 International Law 

Quarterly 203 at 213-214 (1951). 

Part Two 205 

Ice has been consistently distinguished from land in a slightly different, 

but closely related, law of the sea context. It seems to be agreed that ice 

floes, or ice islands, are not treated as islands and do not, therefore, generate 

maritime zones. 

According to Pharand, the 1958 Conventions “make it quite clear that 

an island must be land before it can be legally considered an island.”59 

Teutenberg suggests agreement when he asks, “Can one equate ‘terra firma’ 

with ‘glacies firma’? . . . the overriding conclusion seems to be that sea ice, 

pack ice, ice keels etc., which are constantly changing in appearance and 

position in the Arctic basin, do not have the permanence and stability 

required by international law in order to be the object of sovereign 

possession — in the same way as sovereignty over land. It would be illogical 

to claim national, permanent sovereignty over areas which can ‘melt’ when 

the weather gets warmer.”60 

In the Alaska litigation the parties conducted a joint scientific survey to 

collect evidence on the matter. The survey was composed of two inquiries. 

The first was to establish the surface level of the feature with respect to a 

theoretical horizontal plane. The second was to establish the mean highwater datum with respect to that same plane. Both inquiries were 

conducted and combined to determine whether the surface lay above mean 

high water. That process, and its product, will be discussed below. In sum, 

it was learned that the surface did not generally extend above mean high 

water and the feature did not meet the definition of an island. 

Nevertheless, both parties challenged various conclusions of the survey. 

Alaska contended that errors in calculating the high-water datum resulted in 

an improperly high determination, prejudicing the state’s position. In 

response the United States contended that layers of ice and ice mixed with 

gravel existed below the measured surface, and elevation attributable to the 

ice should be deducted before calculating the feature’s height. (Figure 36) 

Dr. Erk Reimnitz, testifying for the United States, explained that Dinkum 

Sands, as measured, is not composed entirely of “land” but includes up to 

50 percent ice that melts during the summer. United States v. Alaska, Report 

of Special Master Mann of March 1996, at 270. The “ice collapse” causes 

the feature to “slump” in elevation. United States v. Alaska , 521 U.S. 1, 

23 (1997). 

59. Pharand, The Legal Status of Ice Shelves and Ice Islands, 10 C. de D. 461 (1969) at 174. 

60. Teutenberg, The Evolution of the Law of the Sea: A Study of Resources and Strategy with Special Regard to 

the Polar Regions 42 (1984). On this same subject see Gidel, Le Droit International Public de la Mer, BK IV, Pt. 3 

at 530 (1934). O’Connell points out that with the advent of submarines that are capable of transiting beneath 

pack ice in the Arctic one may ask whether the argument for treating ice as water, rather than land, has not been 

further strengthened. 1 O’Connell, The International Law of the Sea 198 (1982), 
206 Shore and Sea Boundaries 

Figure 36. Ice/gravel mix in subsurface of Dinkum Sands, Alaska. The U.S. 

contended that ice should be discounted in calculating the feature's elevation. 

(Photo by Dr. Erk Reimnitz) 

As it turned out, the “composition” question did not affect the outcome 

of the Dinkum Sands issue and, therefore, the master and Court did not 

have to make detailed determinations regarding the extent to which ice 

contributed to the feature’s elevation.61 However, the master provided 

insights that may prove helpful if the issue arises in a future case. He 

concluded that difficulties in measuring seasonally melting ice would make 

the federal proposal impractical, and recommended that the Convention be 

61. The special master rejected Alaska’s proposed modifications to the mean high-water calculation from 

the joint survey and found that Dinkum Sands is frequently below mean high water and is, therefore, not an 

island as a matter of law, even treating its ice content as land. Report at 310. The Supreme Court agreed. United 

States v. Alaska, supra, at 32. 

Part Two 207 

read to assimilate all submerged ice to land. Report at 275. At the same 

time he emphasized that measurements made early in the year, and more 

likely to be affected by ice in the structure, “cannot be relied upon as 

representative of the whole year,” Report at 275, and that late season 

measurements must be included to obtain a “fair picture” of Dinkum 

Sands’ height. 

Although the Supreme Court noted the ice content of Dinkum Sands, 

and the process of “ice collapse” as part of the explanation for the feature’s 

regular change in elevation, the Court did not have occasion to comment on 

the United States’ theory that it should be discounted in determining 

elevation or the master’s recommendation on that matter. Whether the 

Supreme Court would treat ice as land, for purposes of defining an island, 

will have to await another case. 

Above the Water at High Tide 

This final element of insular status actually raises two distinct issues. 

The first, and more obvious, is the requirement that the formation exist 

above the specified tidal datum, high tide. The second, and possibly less 

apparent, is the need for some degree of permanence in elevation. 

The present language of Article 10 is the product of evolution. The 

relevant portion of the 1930 draft provided that an island must be 

“permanently above high water mark.”62 The 1956 International Law 

Commission draft qualified that provision slightly to read “which in 

normal circumstances is permanently above high-water mark.”63 This 

amendment was thought necessary so as not to disqualify features that 

stood above high water except during extraordinary events, such as 

hurricane-driven seas. Yet, during the negotiations that led directly to the 

1958 Convention, the United States suggested that the provisions “in 

normal circumstances” and “permanently” were conflicting and should be 

deleted.64 They were. 

There is no international consensus on the definition of “high tide,” as 

that term is used in Article 10. It could refer to the highest astronomical 

tide, mean high-water spring tides, mean high-water neap tides, mean sea 

level, mean higher high water, or probably a number of others.65 The British 

have argued that mean high-water spring tides should be used. The French 

62. United Nations Document A/C.6/L.378 at 47. 

63. Id. at 44. 

64. Symmons, supra, at 43. 

65. 1 O’Connell, The International Law of the Sea 173 (1982). 
208 Shore and Sea Boundaries 

have said that for insular status a feature should remain above all stages of 

the tide, including the highest annual tide mark, the equinoctial tide. 

The controversy, of course, is more theoretical than practical, as with the 

problem of defining the low-water line. It arises primarily because there is 

no internationally agreed-upon charting practice. The obvious solution is 

simply to adopt the high-water datum employed by each sovereign in its 

official charting capacity. That line has been accepted by all parties to the 

tidelands litigation in the United States. The National Ocean Service uses 

the mean of all high waters over a specific 19-year period (National Tidal 

Datum Epoch) to construct the “high-water line” for the United States. That 

line is reflected on its charts, and a feature that is entirely surrounded by 

water, and which is shown to have a high-water line, is treated as an island.66 

More difficult is the question of permanence. The matter arose in United 

States v. Alaska when the elusive “Dinkum Sands” was determined to have 

existed above high water for some period in the past, and possibly on 

occasion in recent years, but is thought to spend most of its life below high 

tide.67 (Figure 37) 

As noted above, an early draft of Article 10 included permanence above 

mean high water as a requirement of insular status. That term, along with 

“in normal circumstances,” was dropped at the suggestion of the delegate 

from the United States. According to Professor Symmons, testifying for the 

United States before the special master in the Alaska case, this change was 

merely a “drafting, tidying up process,”68 which did not produce a 

substantive change in the Convention’s definition or in customary 

international law.69 

Dr. Symmons’s interpretation is consistent with that of two influential 

members of the International Law Commission, which had produced the 

66. An interesting question may arise as to when in the daily tidal cycle one determines whether a feature 

is an island or part of the mainland. Article 10 might be read to suggest that insular status is determined at the 

time of mean high water. If, at that time, a naturally formed area of land extends above the sea and is 

surrounded by water, it is an island. Consider, however, an extensive sandbar, which lies below water at high 

tide but connects a permanently dry feature to the mainland at low water. If the status of the feature is 

determined at low water, it is a peninsula. If at high water, it is an island. Its ultimate characterization could 

affect title to substantial areas. Notwithstanding the possible contrary interpretation of Article 10, Symmons 

opines that the feature described is not an island but part of the mainland. Symmons, supra, at 41. That would 

seem to be the proper conclusion. It may be supported by the provision of Article 10 that an island must be 

“surrounded by water.” This provision might be read to indicate that an island must be surrounded by water 

at all stages of the tide, precluding the treatment of the seaward portion of this peninsula as an island. That 

interpretation would be consistent with the permanency of elevation requirement discussed below. 

67. Because Dinkum Sands lies more than 3 miles from the mainland coast, or the coast of any true 

island, it could serve as a base point from which to measure Alaska’s Submerged Lands Act grant, only if it were 

an island. Extending above mean low water, and thereby qualifying as a low-tide elevation, would not have 

been sufficient. See Article 11 and discussion below. 

68. United States v. Alaska, Transcript of proceedings before the Special Master at 1111. 

69. Id. at 1135. See also: Symmons, supra, at 23, 25, and 37. 

Part Two 209 

Figure 37. Alaska expert, Claud Hoffman, claiming Alaskan "sovereignty" 

over Dinkum Sands. (Photo by Richard Davis) 

draft articles for consideration.70 It is also consistent with the 

understanding of the British delegate to the Conference, and later judge on 

the International Court of Justice, Mr. Fitzmaurice, who commented on 

islands immediately after the Conference, saying “in the absence of any 

special agreement to the contrary, any natural formation (even a rock) 

permanently (even if just visible at all states of the tide) generates a 

territorial sea.”71 More recently, O’Connell has discussed the long trend 

70. Symmons, supra, at 42. 

71. Fitzmaurice, Some Results of the Geneva Conference on the Law of the Sea, 8 I.C.L.Q. 73, 85 (1959). Other 

commentators have emphasized the need for permanence. See: Fulton, The Sovereignty of the Sea 640 (1911); 

and Boggs, Delimitation of Seaward Areas Under National Jurisdiction, 45 Am.J.Int’l L. 256, 263 (1951). 
210 Shore and Sea Boundaries 

toward the requirement of permanence, beginning with the decision in Soult 

v. Africaine, 22 Fed. Cases 13179 (D.S.C. 1804), with no hint that that trend 

had been suddenly reversed with the 1958 Convention.72 

Vertical or Horizontal Migration 

The Convention’s history was the basis for part of the federal legal 

argument in United States v. Alaska. The areas of Dinkum Sands that rise 

above high-water datum, if any, are acknowledged to meander horizontally 

along the extensive subsurface shoal and also vary in vertical elevation, 

either because of ice collapse, as discussed above, or through traditional 

erosion, or both. 

The parties put on extensive evidence to document Dinkum Sands’ 

existence above or below water over many years. Some was tide controlled 

and some was not. It is fair to say that neither side could prove that Dinkum 

Sands has consistently existed either above or below mean high water. 

Thus, the question became – does Article 10 include features that regularly 

slump below mean high-water datum? The United States argued that to 

qualify as an island a feature had to permanently remain above mean high 

water. 

Special Master Mann adopted something just short of the federal 

position. He concluded, as a matter of law, that Article 10 requires 

“general,” “normal,” or “usual” elevation above mean high water. He 

found, as a matter of fact, that “Dinkum Sands is frequently below mean 

high water and therefore does not meet the standard for an island.” Report 

at 309. 

Alaska took exception to that recommendation and put the issue before 

the Supreme Court. The Court recognized the master’s interpretation as 

being more lenient than that proposed by the federal government 

(“generally,” “normally,” or “usually” as opposed to “permanently” above 

mean high water). United States v. Alaska, supra, at 24. It went on to note 

that the history of Article 10 supports a standard at least as stringent as that 

adopted by the master. Id. at 25. The Court noted that the drafter’s concern 

that island status not be denied merely due to submergence during 

abnormal events is taken care of by the use of “mean” high water. Id. at 27. 

It pointed out that Alaska was not seeking insular status for a feature that is 

occasionally inundated by abnormal water levels, as feared by the drafters, 

but for a feature that “exhibits a pattern of slumping below mean high water 

because of seasonal changes in elevation.” Id. [emphasis in original]. 

72. 1 O’Connell, supra, at 170. 

Part Two 211 

The Court concluded that “to qualify as an island, a feature must be 

above high water except in abnormal circumstances. Alaska identifies no 

basis for according insular status to a feature which is frequently below 

mean high water.” Id. at 27. The history of Article 10 “does not support the 

broader conclusion that a feature with a seasonal loss in elevation, bringing 

it below mean high water, qualifies as an island.” Id. at 31 [emphasis in 

original]. 

It has been asked whether a feature such as Dinkum Sands should be 

given island status when it rises above mean high water and treated as a lowtide elevation, or seabed, as it subsides. That result might be thought to 

follow from the general propositions that coast lines are ambulatory with 

accretion and erosion. Such a result in the Alaska case would have meant 

babysitting the feature around the clock (and the calendar) and allocating 

mineral royalties from a vast area of seabed accordingly. 

Although the parties to the Alaska case acknowledged the possibility of 

that result, they both understood its difficulties and neither adopted it as a 

primary position, or even briefed it, before the special master. In his Report 

Dean Mann emphasized the practical difficulties associated with “divided 

ownership” and its inconsistency with the Court’s goal of achieving stability 

in offshore boundaries. Report at 306. His conclusion that a feature must 

be “generally,” “normally,” or “usually” above mean high water resolved the 

issue for him. Dinkum Sands would be an island if it met those criteria, 

would not if it didn’t, but its legal status would not vary absent “a sustained 

change in its characteristics.” Id. at 307. 

Alaska took greater interest in the theory when it got back to the 

Supreme Court, arguing that Dinkum Sands should indeed be treated as an 

island whenever any part of it peeked above mean high-water datum. The 

Court was not convinced. It distinguished the concept of an ambulatory 

low-water line from that of an island that would come and go in its entirety, 

finding no support in the Convention for the latter. It too identified 

significant practical problems with such an approach and adopted its 

master’s position. United States v. Alaska, supra, at 32. A feature that 

regularly comes and goes in its entirety will not be treated as an island. 

Thus, although the coast line of an island may be ambulatory on a 

horizontal plane, the feature must have some degree of vertical permanence 

such that it is not regularly appearing and disappearing above and below 

the level of mean high water. 

In sum, an island must be naturally formed. That is, it must be 

composed of natural substance that has been naturally placed; it may not be 

man-made. Second, it must be composed not only of natural substance but 
212 Shore and Sea Boundaries 

of “land.” Finally, it must extend above the level of high tide, most logically 

that datum charted by the sovereign concerned, and must have some 

significant permanence of elevation above that datum.73 

Reefs 

Coral reefs, often submerged at all stages of the tide, present a separate 

problem. The 1958 Convention on the Territorial Sea and the Contiguous 

Zone makes no mention of such features. From that we can only conclude 

that they may not be used as base points for measuring the territorial sea.74 

(Figure 38) Sometime thereafter, however, additional consideration was 

given to the matter,75 and Article 6 of the Law of the Sea Convention of 1982 

provides that “[i]n the case of islands situated on atolls or of islands having 

fringing reefs, the baseline for measuring the breadth of the territorial sea is 

the seaward low-water line of the reef, as shown by the appropriate symbol 

on charts officially recognized by the coastal State.” 

73. At times in the history of the law of the sea, it has been suggested that an island must be of some 

minimum size and must be capable of habitation, or some other particular use. See: Fachille, Traite de Droit 

International Public, pt. II 202 (8th ed., 1925);Gidel, Le Droit International Public de la Mer 684 and 717 (1934) 

[quoted at 4 Whiteman 285]; Bowett, supra, at 7-9; and Symmons, supra, at 41. The habitability criterion has 

not been required by American courts. Middleton v. United States, 32 F.2d 239, 240 (5th Cir. 1929). Nor has it 

played a part in American diplomatic practice. In 1975 the unarmed cargo vessel Mayaguez, under contract to 

the U.S. Navy, was seized by the Khmer Rouge within the claimed territorial sea of the uninhabited rocks of 

Pulo Wai, in the Gulf of Siam. Although the United States protested the incident as a violation of the right of 

innocent passage, it did not assert that because they were uninhabited the rocks generated no territorial sea. It 

is clear that Article 10 contains neither requirement. See: Symmons, supra, at 37 and 41; Bowett, supra, at 9; 

and McDougal and Burke, supra, at 397. However, Article 121 of the recent Law of the Sea Convention appears 

to breathe fresh life into the habitation requirement by providing that mere rocks, incapable of sustaining 

habitation or economic life of their own, while generating territorial seas, do not generate exclusive economic 

zones or continental shelves, two of the maritime zones traditionally associated with islands. 

Although the new provision is clearly intended to minimize the effect of minor features on maritime 

jurisdiction, its application seems certain to be controversial. As Professor Prescott points out, one must 

initially discern how “rocks” are to be distinguished from “islands,” and then must determine what minimum 

requirements for sustaining habitation or economic life might include. Prescott, supra, at 72. Prescott opines 

that a rock large enough to accommodate a shelter would qualify under the initial criterion, and that the 

regular collection of guano would satisfy the second. Id. at 73. He is less sure whether the feature should have 

to be capable of providing all necessities of life, id., a requirement that would seem to preclude the use of 

numerous islets around the world that are presently given full island status. Likewise, Prescott questions 

whether the use of a rock to support a navigation aid or collect weather data could be said to fulfill the 

economic requirement. Id. If so, it would seem that no feature would be disqualified, again indicating that 

such a test is more liberal than the drafters intended. 

Interestingly, Professor Prescott suggests that to be considered a “rock” for these purposes, a feature 

should consist of “solid parts of continental crust” but that sand islands should generate maritime zones even 

though incapable of sustaining habitation or economic life. Id. His reasoning is not entirely clear. It would 

seem that if a substantial and permanent “rock” is to be denied full island status for its inability to sustain 

habitation or economic life, a sand cay that suffers from the same shortcomings and, additionally, is likely to 

be here today and gone tomorrow, should be attributed even less legal standing. 

74. Although the International Law Commission’s committee of experts had recommended that “[a]s 

regards coral reefs, the edge of the reef . . . should be accepted as the low-water line for measuring the territorial 

sea,” that provision was not included in the Convention. See Bowett, supra, at 14. 

75. Hodgson and Alexander, for example, recommended that the territorial sea should be measured from 

the outer limit of a reef, even though it may lie below mean low water. Hodgson and Alexander, supra, at 52-54. 

Part Two 213 

Figure 38. Coral reefs off Buck Island, U.S. Virgin Islands. These reefs emerge at 

some stages of the tide; others are permanently submerged. 

(Based on NOAA Chart 25641 ) 

Article 6 has focused new attention on the possible uses of reefs in 

maritime boundary delimitation. But its consequence is not entirely clear. 

To begin our consideration, we note that Article 6 applies only to delimiting 

the territorial seas of "islands" which lie on atolls or have fringing reefs. 

Presumable reefs lying off a mainland coast will affect maritime jurisdiction 

only under separate articles, if at all. The provision makes clear that any 

portion of a reef which extends above mean low water will serve as a base 

point for territorial sea measurement. Query whether, in these limited 

circumstances, Article 6 thereby trumps the traditional requirement that to 

serve as a base point a low-tide elevation must lie within the breadth of the 

territorial sea from the mainland or an island.76 If so, a low-tide elevation 

that is more than the breadth of the territorial sea from an island may 

function as a base point if it is part of a reef. 

Neither is Article 6 clear about whether submerged portions of a reef 

may be used as base points.77 It provides that the baseline is the "low-water 

line" of the reef, but goes on to describe that line as that "shown by the 

appropriate symbol on charts officially recognized by the coastal State." 

Charting symbols for reefs may not indicate whether the feature dries at any 

stage of the tide. 

76. Convention on the Territorial Sea and the Contiguous Zone, Article 11; Convention on the Law of the 

Sea, Article 13. 

77. As suggested by two American experts. See note 75, supra. 
214 Shore and Sea Boundaries 

United States practice may even have deviated over time. When our 

territorial sea was first depicted, in 1971, submerged portions of the Florida 

reef were not employed as base points. Nor were they included in the 

Supreme Court's description of the Florida coast.78 However, when similar 

boundaries were constructed in the United States Virgin Islands, after 

negotiation of the Law of the Sea Convention, it would appear that reefs 

were used as base points.79 

Even more troubling, if the 1982 Convention is read to permit 

submerged portions of reefs to serve as base points, is the possibility that 

they may be said to enclose inland waters. If a feature is part of the coast 

line for base point purposes, it is presumably part of the coast line for all 

purposes. Thus, under this interpretation, Article 6 might allow a 

submerged portion of a reef to serve as the headland of a bay. Yet that 

proposition is disturbing. In fact, it was that very extension of logic that the 

Supreme Court used to indicate how irrational it would have been to adopt 

Louisiana's contention that submerged features should be considered 

harborworks.80 

It would appear that there has been insufficient opportunity to evaluate 

the potential implications of Article 6, but possible interpretations could 

produce anomalous results. 

Low-Tide Elevations 

Article 11 of the Convention defines “low-tide elevations” and provides 

that they will generate territorial seas only when within the territorial sea of 

a true island or the mainland. (Figure 39) 

The provision is a compromise stemming from disagreement as to how 

the term “island” was to be defined at the time of the 1930 Hague 

Codification Conference. Although it was understood that islands 

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

79. Coastline Committee Minutes of November 17, 1982, and November 18, 1983. In 1978 the 

Committee noted that submerged reefs should not be used as base points of the Micronesian Trust Territory. 

Minutes of March 31, 1978. In subsequent negotiations, green tint indicating the Samoan Reef was used as the 

"best estimate" of the low-water line. Similarly, the upper limit of visible coral was treated as low water along 

the New Zealand coast. Minutes of February 27, 1980. It would appear from the context that these charted 

lines were adopted for negotiating purposes, being the best evidence available, and that the parties were not 

necessarily endorsing the use of submerged features for unilateral claims. For other Committee consideration 

of reefs, see Minutes of January 13, 1976; December 15, 1977; and March 31, 1978. 

80. United States v. Louisiana, 394 U.S. 11, 36-40 (1969). The Coastline Committee also refused to employ 

a reef extending from Point St. George (near the California/Oregon border) as a headland of Pelican Bay, 

reasoning that the "headland" would be 99.9 percent water. Minutes of December 17, 1976. Although this 

example may be distinguishable in that it probably does not fall within Article 6‘s requirement that a reef fringe 

an island, apparently in contrast to fringing the mainland, it points out the conceptual difficulty of "enclosing" 

inland waters with submerged features. The waters would not be landlocked in any traditional sense. 

Part Two 215 

Figure 39. Low-tide elevation. Shell reefs are typical low-tide elevations 

off the coast of Louisiana. (Based on NOAA Chart 11351). 

generated territorial seas, there was no understanding on what constituted 

an island. Some states insisted upon elevation above high water (as 

ultimately required by Article 10), while others suggested that no emergence 

was necessary at all, so long as it was not practical to navigate above the 

feature.81 The International Law Commission’s (ILC) draft text, and the 

ultimate Convention, represented a compromise solution.82 

Article 11 defines a low-tide elevation exactly as Article 10 defines an 

island, except for the requirement that the low-tide elevation need only 

emerge at low tide. We will not, therefore, repeat the discussions of the 

terms “naturally formed,” “area of land,” and “surrounded by water,” all of 

which apply equally here. Instead, we deal with the distinctions between 

islands and low-tide elevations. 

81. Bowett, supra, at 7. 

82. 4 Whiteman, supra, at 306: Bowett, supra, at 10. See, however, McDougal and Burke, supra, at 394, who 

suggest that security considerations may have been used to justify the use of low-tide elevations. 
216 Shore and Sea Boundaries 

The Low-Water Line 

As with the term “high water,” the Convention’s use of “low water” does 

not refer to a single, internationally recognized datum. The issue arose in 

Post Office v. Estuary Radio Ltd., in which the situs at issue was said to lie 

within 3 miles of a low-tide elevation and, therefore, within the territorial 

sea. It happened that the Convention and the Territorial Waters Order in 

Council83 defined the term differently. Diplock L.J., writing for the Court of 

Appeal, noted that “[u]pon these definitions interesting and difficult 

questions arise as to whether a ‘low-tide elevation’ must be above water at 

all low tides, at mean low-water spring tides, at Admiralty datum, at the 

lowest tides experienced from time to time (and if so, how often?) in the 

course of a year, or at lowest astronomical tides. Some day some court, 

municipal or international, may have to decide this.” [1968] 2 Q.B. 740 

at 761. 

At one time the same question might have arisen in American practice. 

However, since the Supreme Court determined in United States v. California 

that the term “low-water line” as used in Article 3 means the particular 

datum employed in the construction of our official nautical charts, the 

matter must now be considered resolved.84 Any naturally formed area of 

land that is surrounded by water and above water at the charted low-water 

datum is a low-tide elevation. It would appear that Commander 

Beazley arrived at this same conclusion following the decision in the Post 

Office case.85 

Contrasted with Islands 

Low-tide elevations do not, however, rise to the status of islands for the 

purpose of establishing zones of maritime jurisdiction. Under the 1958 

Convention, every island generates the full spectrum of maritime zones, 

including a territorial sea, contiguous zone, and continental shelf. The same 

is true under the Law of the Sea Convention, although the exclusive 

economic zone is added and certain “rocks” are deprived of a continental 

shelf and economic zone. In contrast, Article 11 specifically provides that 

only those low-tide elevations that lie within the territorial sea of the 

mainland or a true island will generate a territorial sea (and, presumably, a 

contiguous zone and continental shelf). In effect, the most that a low-tide 

elevation can do is create an additional “bulge” in an already existing 

territorial sea. (Figure 40) It will never, by definition, have a territorial sea 

83. S.I. 1965, Vol. 3, 6452A. 

84. United States v. California, 381 U.S. 139, 175-176 (1965). 

85. Beazley, supra, at 24. 

Part Two 217 

Figure 40. Coastal Louisiana. A low-tide elevation within the maritime boundary 

of Marsh Island, Louisiana, extends the boundary. (Based on NOAA Chart 11349) 
218 Shore and Sea Boundaries 

that does not overlap that of a nearby island or the mainland. Nor may a 

state’s total territorial sea be increased by leapfrogging seaward from one 

low-tide elevation to another.86 

At least one controversy does arise concerning which low-tide elevations 

are to be treated as base points, and that comes in interpreting the 

requirement that they be within the breadth of the territorial sea of the 

mainland or an island. The question is whether it is enough to be within 

the territorial sea of the closing line of an inland water body, or, if to be 

considered a base point, a low-tide elevation must actually be within the 

territorial sea of the low-water line of the mainland or an island. 

Bowett is of the opinion that it is not enough to lie within the territorial 

sea where that zone is measured from an inland water closing line. He 

appears to reach that conclusion by analogy to the International Law 

Commission’s explanation of why it would not permit Article 4 straight 

baselines to be drawn to low-tide elevations.87 

Although the reasoning may be convincing, it comes too late for 

American practice. The Supreme Court was faced with the identical issue in 

United States v. Louisiana. A low-tide elevation lay more than 3 miles from 

any land but within 3 miles of the closing line of a juridical bay. (Figure 41) 

The federal government interpreted Article 11 to preclude the use of the 

feature as a base point. Louisiana contended that because it fell within the 

existing territorial sea, it generated a territorial sea of its own. The Court 

agreed with the state. It concluded that the drafters intended to give 

significance to all low-tide elevations that fall within the territorial sea of the 

mainland or an island. Thus, at least for this purpose, inland waters are to 

be treated as “mainland.”88 

American practice has conformed to the Court’s determination in the 

subsequent instances in which the question has arisen. For example, a lowtide elevation in southeastern Alaska, known as Hanus Reef, has been used 

as a base point. The feature lies more than 3 miles from land but within 3 

miles of the bay closing line across Lynn Canal. Its use as a base point 

serves to eliminate or reduce the size of several potential high-seas enclaves 

in the area.89 

86. Bowett, supra, at 12. However, as territorial seas are extended from 3 to 12 miles, low-tide elevations 

take on new significance. Such a formation lying 11 miles offshore has no boundary significance with a 3-mile 

territorial sea claim. But, if it lies within a 12-mile territorial sea, it generates a significant “bulge” of additional 

jurisdiction. See: Churchill and Lowe, supra, at 35. 

A good example can be found off the coast of Louisiana where, just south of Marsh Island, a series of lowtide elevations extends more than 3 miles offshore. The elevations within 3 miles of Marsh Island generate 

territorial seas of their own, while others farther seaward have no such effect. United States v. Louisiana, 452 

U.S. 726 (1981); Coastline Committee Minutes of April 25, 1972. 

87. Bowett, supra, at 13. 

88. United States v. Louisiana, 394 U.S. 11, 45, and 47 (1969). 

89. Coastline Committee Minutes of September 20, 1971. 

Part Two 219 

Figure 41. Atchafalaya Bay, Louisiana. A low-tide elevation within the maritime 

boundary measured from a juridical bay closing line extends the boundary. 

(Based on NOAA Chart 11351) 
220 Shore and Sea Boundaries 

Practical Problems 

The most difficult issue with respect to low-tide elevations has been 

determining whether a given feature extends above the low-water datum. 

The farther offshore the feature is located, the more technically difficult the 

problem. The federal government has faced this issue off the coasts of both 

California and Alaska. Carpenteria Rock, off the coast of California, has 

been the subject of extensive survey by both federal and state experts with 

no consensus as to its status. It would appear that the surface of the rock 

lies within as little as 2 inches above or below mean low water. The parties 

cannot agree which. Consequently, the area around the rock has been 

withheld from oil and gas leasing. 

The problem typically arises when a geographic feature is charted with 

a symbol that does not purport to indicate its elevation with respect to the 

tidal datum. Most features are shown with both high- and low-water lines 

(for islands) or low-water lines (for low-tide elevations) and are, further, 

tinted to symbolize their status. Some, however, are represented merely by 

asterisks, symbols used to indicate that the surface of the feature lies at an 

elevation within a given range of feet either above or below the datum. This 

is, of course, proper charting practice in that it puts the mariner on notice of 

a potential hazard to navigation and avoids the need to conduct thorough, 

and extremely expensive, individual surveys. It does not, however, provide 

sufficient information for boundary determinations. 

As a group, features denoted with asterisks are characterized as “rocks 

awash.” The International Law Commission’s committee of experts made 

clear that rocks awash are not to be taken into consideration in boundary 

delimitation.90 Thus, the Coastline Committee, in establishing guidelines 

for its work in delimiting the coastline of the United States, determined that 

it would not use asterisks as base points absent additional information to 

indicate that they actually qualify under the Convention, either as islands or 

low-tide elevations.91 

The federal government and State of Alaska have undertaken a joint 

project to survey a large number of features marked with asterisks and have, 

in many cases, reached agreement as to whether or not they qualify as base 

points. The information collected has then been presented to the Coastline 

Committee, which has modified the official charts delimiting our maritime 

boundaries accordingly.92 The Committee has also gone so far as to 

90. 4 Whiteman, supra, at 182. 

91. See Coastline Committee Minutes of: June 1, 1970; August 3, 1970; September 20, 1971; April 25, 

1972; and August 2, 1972. In some cases the asterisk will be accompanied by a number that indicates that it 

dries to that elevation. Such additional symbolization has been taken as sufficient evidence to justify use as a 

base point. Coastline Committee Minutes of September 27, 1979, and December 16, 1981. 

92. Minutes of November 1 and November 26, 1985. 

Part Two 221 

research historic records to determine whether a lighthouse was originally 

constructed on a low-tide elevation and should, therefore, be treated as a 

base point.93 

Unanswered Questions 

Finally, the 1982 Law of the Sea Convention apparently leaves 

unanswered an interesting question as to the effect of low-tide elevations; 

that is, whether they generate only limited maritime zones. As noted above, 

Article 121(3) of the Convention provides, with respect to islands: “[r]ocks 

which cannot sustain human habitation or economic life of their own shall 

have no exclusive economic zone or continental shelf.” Churchill and Lowe 

point out that there is no indication that low-tide elevations are 

similarly limited, even though the latter will be a less visible “manifestation 

of land.”94 

However, as a purely logical matter, it seems that had the drafters 

considered the matter, they would have included a like restriction on all 

low-tide elevations, permitting their use for territorial water and contiguous 

zone purposes but not for exclusive economic zones or continental shelves. 

It would seem to go without saying that a low-tide elevation is not suited to 

human habitation nor capable of supporting an economic base.95 The issue 

has not yet been litigated. As Professor Prescott suggests, it is probably safe 

to predict that most states will make the maximum claim possible in the 

face of this anomaly.96 

In sum, a low-tide elevation must be naturally formed, made of land, 

surrounded by water, and extend above the charted low-water datum but 

not above the high. Such features will generate maritime zones if they lie 

within the territorial sea of the mainland or an island, whether measured 

from the low-water line or inland water closing lines. Otherwise they will not. 

93. Minutes of August 10, 1970. 

94. Churchill and Lowe, supra, at 36. 

95. Although imaginative advocates will quickly suggest means by which people might live, and make a 

living, on a low-tide elevation, it seems clear that the situations would necessarily be so extreme that if applied 

equally to rocks there would be no meaning left to Article 121(3). 

96. Prescott, supra, at 62. 
CHAPTER 6 

INTERNAL WATERS 

Waters landward of the baseline from which the territorial sea is 

measured constitute the internal waters of a state.97 Thus, the territorial 

sea’s baseline is composed of two parts, the low-water line along the open 

coast, or “normal” baseline, and a series of imaginary lines separating 

inland water bodies from the open sea. 

It may be important to know the exact location of the line between 

internal waters and the territorial sea. Internationally, foreign vessels may 

enter internal waters only with permission of the coastal state. Though 

vessels may transit the territorial sea in innocent passage, other limitations 

apply. For example, foreign submarines must surface to enter the territorial 

sea; and foreign aircraft may fly over only with permission. Domestically, 

the waters landward of the baseline have traditionally belonged to the 

states98 while those seaward, 3 miles from the baseline,99 were only granted 

to the states in 1953.100 Some statutory prohibitions apply only in the 

territorial sea and not inland waters. For all of these reasons, it is important 

to be able to determine the seaward limit of inland waters. 

Inland waters include bays, rivers, harbors, waters enclosed by Article 4 

straight baselines, and the area between mean high and mean low water 

along the open coast.101 Although the 1958 Convention on the Territorial 

Sea and the Contiguous Zone and subsequent Law of the Sea Convention 

provide some guidance on how to delimit internal waters, their rules are 

necessarily general. This section reviews, among other authorities, the 

numerous U.S. Supreme Court decisions, including those of its special 

masters, that have put meat on the bones of these rules through their 

application to a large number of actual coastal situations. 

97. Convention on the Territorial Sea, Article 5. In American practice the internal waters are often referred 

to as “inland” waters. The terms are synonymous. 

98. See Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845). 

99. Or up to 3 leagues off the Gulf coasts of Florida and Texas. 

100. 43 U.S.C. 1301 et seq. 

101. The United States has produced official charts depicting the limits of its territorial sea and contiguous 

zone. To date no other country is known to have done so with the exception of those that employ Article 4 

straight baselines for their entire coasts. Even the United States has not attempted to depict the vast majority 

of closing lines across the mouths of inland water bodies. Early in its delimitation exercise, the Coastline 

Committee determined that to avoid additional clutter on nautical charts only those closing lines that affect 

the outer limit of the territorial sea would be depicted. Minutes of August 3, 1970. 

Part Two 223 

BAYS 

The most difficult problems of inland water delimitation arise at the 

mouths of juridical bays. Article 7 of the 1958 Convention sets out the 

criteria for constructing bay closing lines. 

Bays of a Single State 

Article 7 begins with a disclaimer. Paragraph 1 provides that the article 

relates only to bays the coasts of which belong to a single state. That is to 

say, Article 7 does not authorize the closure of an indentation into the 

mainland, that otherwise meets all of its criteria, if the shores of that 

indentation are controlled by more than one state. According to one 

authority, there are more than 40 such bays in the world.102 Most, if not all, 

such bays will lie on the border between two sovereigns, such as 

Passamaquoddy Bay, between Maine and New Brunswick. 

The Convention does not establish that such bays are not inland waters; 

it merely leaves the question unresolved.103 Sohn and Gustafson indicate 

that there is no clear rule in such circumstances, and discuss three 

alternative views.104 First, each state bordering on the bay is understood to 

have a belt of territorial waters along the shore, and the center of the bay is 

left as high seas (or, presumably, zones of lesser maritime jurisdiction). 

Second, each state will have an exclusive territorial sea along the shore, as 

above, but the remainder of the bay will be subject to the joint jurisdiction 

of the coastal sovereigns.105 Finally, the bay may be divided among the 

bordering states through principles usually applicable to such divisions 

between states with adjacent or opposite coasts. 

Lauterpacht has no hesitation in proclaiming that the first alternative 

represents the majority view and provides a thorough discussion in 

support.106 Likewise, Churchill and Lowe characterize the second as an 

102. Churchill and Lowe, supra, at 33. 

103. Historic waters are treated in the same way. See Article 7(6). 

104. Sohn and Gustafson, The Law of the Sea at 45-46 (1984). 

105. This example comes from the decree of the Central American Court of Justice in El Salvador v. 

Nicaragua, holding the Gulf of Fonesca to be under the joint sovereignty of those two nations and Honduras, 

all of which border on the Gulf. See: 11 A.J.I.L. 674 (1917). The International Court of Justice has since 

confirmed that the Gulf is historic water but has left the three parties to resolve their boundaries within it. El 

Salvador/Honduras, Nicaragua Intervening [1992] I.C.J. 351. It is doubtful that that decision is binding on any 

but the parties involved or that its reasoning, based largely on local history and geography, can be easily 

extended to other boundary waters. 

106. 1 Lauterpacht, Oppenheim’s International Law 508 (8th ed. 1955). 

222 
224 Shore and Sea Boundaries 

exception, as surely it must be.107 However, as a practical matter, it would 

appear that the third alternative is most applicable, with the caveat that 

what is being divided is not an area of inland water sovereignty but lesser 

maritime jurisdiction. With contiguous zones of up to 12 miles recognized 

in the 1958 Convention and up to 24 miles in the 1982 Convention, and 

exclusive economic zone rights extending to 200 miles, it is clear that any 

boundary bay with an entrance of less than 24 miles will be sufficiently 

small that all of its waters will fall within one of these categories, and the 

coastal states will be permitted to divide the bay among themselves at least 

for these more limited purposes.108 

That is not to say that the international community may not still 

consider it important to assert other high-seas rights within the bay, such as 

the right of passage, but the extension of maritime zones in recent years 

would appear to protect most coastal state economic interests in boundary 

bays without asserting inland water claims. 

In short, Article 7 does not apply to boundary bays. The accepted rule 

is that such bays are not inland waters.109 However, contiguous and 

exclusive economic zones would appear to protect most coastal state 

interests in such bays. 

What Is a Bay? 

Article 7(2) of the 1958 Convention defines a bay through a number of 

rather subjective terms and a separate, precise objective criterion. First, it 

describes a bay as a “well-marked indentation whose penetration is in such 

proportion to the width of its mouth as to contain landlocked waters and 

constitute more than a mere curvature of the coast.” Then it provides that 

“[a]n indentation shall not, however, be regarded as a bay unless its area is 

as large as, or larger than, that of the semi-circle whose diameter is a line 

drawn across the mouth of that indentation.” (Figure 42) But how are 

these criteria to be applied? 

Some have suggested that the more subjective, and first mentioned, 

criteria are subsumed in the semicircle test, and that any indentation that 

conforms to that test is, by definition, landlocked.

110 It is clear that the 

107. Churchill and Lowe, supra, at 33. 

108. Nothing in either treaty prevents coastal states from asserting these recognized rights in boundary bays. 

109. Boundary rivers are treated differently. See discussion infra. 

110. For example, Sohn and Gustafson assert that the “well-marked indentation” requirement is met 

when the semicircle test is met. Sohn and Gustafson, supra, at 41. This may merely represent a shorthand 

statement of the authors, or be based upon some early judicial language that might be so interpreted. In United 

States v. California, the Supreme Court emphasized the semicircle test in its evaluation of Monterey Bay. 381 

U.S. 139, 164, 169-170 (1965). See, also: Island Airways, Inc. v. C.A.B., 352 F.2d 735, 738 (1965). But the 

history of the Convention and subsequent Supreme Court decisions make clear that more is required. 

Part Two 225 

Figure 42. Delaware Bay. This landlocked body clearly meets international 

criteria for juridical bay status. 

Convention’s drafters did not intend that result, nor has the Supreme Court 

accepted it. 

Prior to the 1958 Convention there was certainly no internationally 

agreed-upon set of rules for the enclosure of bays. The ILC committee of 

experts sought to provide an objective approach to the subject and 

recommended the semicircle test. That test, and the maximum 10-mile 

limit for closing lines, provided specific criteria. However, the International 

Court of Justice had recently rejected the 10-mile rule and, in that 

environment, the ILC considered such complete dependence on objective 

criteria to be too great a departure from customary international law.111 

111. 1 O’Connell, supra, at 389. 
226 Shore and Sea Boundaries 

Thus, the more traditional term “so as to contain landlocked waters” was 

adopted from the judgment of Judge McNair.112 Commentators have 

interpreted this requirement to involve two separate inquiries.113 So has the 

Supreme Court. 

In United States v. Louisiana, the parties disagreed over the juridical status 

of a number of coastal indentations. The state took the position that any 

area that met the semicircle test ipso facto qualified as a bay under the 

Convention. The federal government insisted that the objective semicircle 

test is a minimum requirement to be applied only after a water body has 

been determined to be landlocked under the primary criteria.114 Although 

at that stage of the case the Court did not rule on the status of individual 

indentations, it did adopt the federal position that the subjective criteria of 

Article 7 must be met before the semicircle test will be applied.115 

What Waters Are Landlocked? 

O’Connell points out that the International Law Commission’s 

preoccupation with arithmetic limits distracted it from looking carefully at 

the term “landlocked,” with its obvious ambiguity.116 Since 1958, lawyers 

and geographers have wrestled with the problem, seeking to provide 

objective criteria by which the term can be applied and to determine 

whether specific indentations are actually landlocked. A number of factors 

have been considered and some ruled upon by the Court or its masters. 

THE TWO-DIMENSIONAL CRITERION. At first blush it may appear 

reasonable to contend that waters that are enclosed by high bluffs or 

underwater sills are more “landlocked” than those whose headlands barely 

rise above the tidal datum or whose bottom is merely a continuation of the 

bed of the open sea. For example, in United States v. Maine (New York/Rhode 

Island), the states argued that an underwater “sill” running between 

Montauk Point, Long Island, and Block Island “caused the waters of Block 

Island Sound to have a ‘different character’ than the waters outside Block 

112. Fisheries Case, [1951] I.C.J. Rep. 116, 163. 

113. O’Connell indicates that the definition “contains three main elements: bays must (a) be ‘landlocked;’ 

(b) satisfy the semi-circle test of penetration; and (c) satisfy the twenty-four mile rule.” Supra, at 390. Gross 

has said that “[u]nder this test, . . . true bays must constitute more than mere curvatures in the coast, contain 

landlocked waters, and contain an area as large or larger than that of a semi-circle . . . .” Gross, The Maritime 

Boundaries of the States, 64 Mich. L. Rev. 639, 651 (1966). 

114. United States v. Louisiana, 394 U.S. 11, 48, and 54 (1969). 

115. Id. at 54. Prescott agrees with this interpretation but does not believe that any country would refuse 

to close an indentation that meets the semicircle test except, as in the case of the United States, where the 

national sovereign stands to gain thereby in disputes with its constituent political subdivisions. Prescott, supra, 

at 53. That position suggests, contrary to the history of Article 7 and the Supreme Court’s decisions concerning 

it, that the more subjective criteria are superfluous. It is too late in the day to pursue that route. 

116. O’Connell, supra, at 388. 

Part Two 227 

Island Sound.”117 (Figure 43) From this, they suggested that Block Island 

Sound should be considered landlocked.118 Neither the special master nor 

the Supreme Court accepted this logic. 

Figure 43. Block Island Sound. The shallow sill between Long Island and 

Block Island was said to help "enclose" the waters of Block Island Sound. 

(Based on NOAA Chart 12300) 

A similar argument had been made in the English courts when, in the 

famous pirate radio station case, a determination had to be made as to the 

limit of landlocked waters in the Thames estuary.119 Defendants there 

argued that factors such as geology, tide streams, and the position of lights 

and shoals should be considered, while the Crown espoused a twodimensional approach, concentrating on a search for headlands above the 

tidal datum that enclosed landlocked waters.120 

117. Report of the Special Master of October Term 1983, at 55-56 n.42. 

118. Id. at 55. 

119. Post Office v. Estuary Radio Ltd. [1968] 2 Q.B. 740. 

120. O’Connell, supra, at 398. 
228 Shore and Sea Boundaries 

Finally, the state of Florida has taken the position that the limits of the 

Gulf of Mexico should be determined by defining the subsurface basin that 

is identified with that water body, rather than the land features that provide 

its character as a gulf and distinguish it from the Atlantic Ocean. The 

question arose because Congress, through the Submerged Lands Act, 

granted states bordering on the Gulf of Mexico an opportunity to acquire a 

9-mile belt of seabed in the Gulf, rather than the standard 3, by proving 

historic boundaries in that water body. Florida proved its right to the more 

expansive grant121 but had next to establish the boundary between the Gulf 

and Atlantic, because the extraordinary grant did not apply in the latter. 

Florida defined the entrance to the Gulf as that point on the seabed at which 

a marble, if dropped, would roll toward the Gulf rather than the Atlantic. 

The federal government, in contrast, looked to surface features that enclose 

the area commonly understood to constitute the Gulf. The state’s formula 

provided a boundary running east from the Florida mainland to the 

Bahamas. The government’s line ran due north from Cuba to the Dry 

Tortugas. The former included the Straits of Florida in the Gulf; the latter 

made the straits part of the Atlantic. The master and the Court adopted the 

federal position, relying on the two-dimensional analysis for determining 

the limits of the Gulf of Mexico and limiting Florida to a 3-mile boundary 

along the south coast of the Keys.122 

According to Hodgson, this two-dimensional approach was intended by 

the committee of experts and final drafters of Article 7.123 So, although it 

may once have seemed logical to consider subsurface features for purposes 

of determining whether a water body is landlocked, that argument is now 

closed. The approach is two-dimensional. Only features that extend above 

the low-water datum may be considered, and each of those is equally 

capable of “locking” adjacent waters, regardless of elevation.124 

121. 363 U.S. 121 (1960). 

122. United States v. Florida, 420 U.S. 531 (1975). 

123. Hodgson, Toward a More Objective Analysis, supra, at 3. The geographer goes on to explain that the 

depth of water within an indentation is irrelevant to bay status. A bay may be navigable or not so long as the 

specified two-dimensional criteria are met. It seems equally well accepted that nomenclature has no legal 

significance. Florida Bay, Florida, and East Bay, Louisiana, are examples that have been the subject of litigation. 

On the other hand, the water body formed by the western side of the Mississippi River delta and the mainland 

of Louisiana was determined to qualify as an overlarge bay by Special Master Armstrong in United States v. 

Louisiana. The United States did not take exception to his recommendation and an appropriate 24-mile 

fallback line was included in the Court’s baseline decree. 422 U.S. 13 (1975). The indentation was 

denominated “Ascension Bay” by the state but that name does not typically appear on charts of the area. See 

also: Beazley, supra, at 12 and 2 Shalowitz, Shore and Sea Boundaries 367 (1964). 

124. The entrance to San Diego Bay provides a graphic example. The western headland to the Bay is the 

formidable Point Loma, a massive peninsula jutting into the Pacific and rising probably 100 feet above sea 

level. The eastern headland is a man-made jetty that rises above the tidal datum only in places. Nevertheless, 

each is given equal status as a headland of San Diego Bay. United States v. California, 449 U.S. 408 (1981). 

Part Two 229 

THE HEADLAND REQUIREMENT. Typical bays are characterized by a 

pair of headlands which, in some sense, pinch in toward each other to 

enclose the waters between. Such headlands have traditionally caused 

inland waters to be described as inter fauces terrae, within the jaws of the 

land.125 The term had its genesis in early English attempts to determine 

the limits of admiralty jurisdiction but continues as the essence of inland 

water status.126 

The need for identifiable headlands was the focus of a significant issue 

in United States v. Louisiana. East Bay, at the southern tip of the Mississippi 

River delta, is a triangular feature formed primarily by two of the river’s 

passes into the Gulf. (Figure 44) The seawardmost potential headlands are 

the southern tips of the jetties that form those passes. However, the waters 

enclosed by a line between those headlands do not meet the semicircle test, 

disqualifying the whole of those waters from juridical bay status. 

Nevertheless, it was agreed that lines could be drawn within the triangle, 

enclosing waters that do meet the semicircle test. Louisiana contended that 

such waters automatically qualified as a juridical bay. The United States 

took the position that to achieve bay status the lesser indentation had to 

qualify separately. This, according to the federal government, required 

identifiable headlands enclosing landlocked waters. The Court agreed, and 

left its special master the problem of determining, in the first instance, 

whether such headlands existed within East Bay.127 

It is difficult to predict in advance what feature will qualify as a 

headland. Headlands to Monterey Bay, recognized by the Court in United 

States v. California, are substantial and readily identifiable.128 In contrast, 

the headlands selected for East Bay were little more than bumps on an 

otherwise straight coastline. What is clear is that headlands are required if 

an indentation is to be landlocked.129 

SIZE AND SHAPE. It has sometimes been said that the semicircle is the 

classic form of a bay, 130 yet a perfect semicircle would, by definition, just 

125. O’Connell, supra, at 385. 

126. Alabama and Mississippi Boundary Cases, Report of the Special Master of April 9, 1984, at 18. 

127. United States v. Louisiana, 394 U.S. 11, 54 (1969). The master ultimately determined that there were 

sufficient headlands along each of the passes to enclose a lesser landlocked bay that meets all of the criteria of 

Article 7. Report of July 31, 1974, at 32-35. The United States took exception to that recommendation but it 

was adopted by the Court, 420 U.S. 529 (1975), and the internal closing line was incorporated in the eventual 

coast line decree. 422 U.S. 13 (1975). 

128. 381 U.S. 139 (1965). See map at Appendix B to dissenting opinion. 

129. The means of selecting headlands, and entrance points on them that anchor inland water closing 

lines, is discussed at length below. 

130. United States v. Louisiana, Report of the Special Master of July 31, 1974, at 45. 
230 Shore and Sea Boundaries 

Figure 44. East Bay, Louisiana, at the southern tip of the Mississippi River 

delta. The limit of East Bay's landlocked waters, as contended by Louisiana, 

is illustrated. (Note the proliferation of oil production platforms, depicted 

on the chart as small black squares.) (Based on NOAA Chart 11361 ) 

barely meet even the minimum test for juridical bay status. The United 

States has argued that something in the nature of pinching headlands is 

necessary to create landlocked waters.131 

For example, the federal government took the position in United States 

v. Louisiana that a “V”-shaped indentation, East Bay, is not landlocked. The 

question did not have to be met directly because the entire “V”-shaped 

feature did not meet the semicircle test, and was thereby disqualified, while 

the lesser, interior indentations that were found to qualify had minor 

131. For a discussion of the effort to locate headlands in the Post Office case, see O’Connell, supra, at 397-398. 

Part Two 231 

headlands that created landlocked waters. So the question remains whether 

a perfectly “V”-shaped indentation does enclose landlocked waters. 

O’Connell has raised the question without answering it.132 The United 

States has closed a number of similar bays on its official charts depicting the 

limits of the territorial sea.133 

Article 7 itself suggests that a comparison of the length of the closing 

line to the depth of penetration within the indentation will assist in 

determining whether waters are landlocked.

134 Numerous commentators 

have attempted to reduce this requirement to a more objective test. Strohl 

has suggested that the line of deepest penetration should equal or exceed 

the length of a bay closing line.135 Beazley indicates that the closing line 

shall be twice the depth of the indentation.136 That formula would seem to 

be justified under the semicircle rule. 

Special Master Armstrong has referred to this relationship on two 

occasions. With respect to East Bay, he noted that it “would seem to meet 

this test upon the basis of relationship between the width of its mouth to its 

depth upon a number of different closing lines . . . .”137 Applying the test 

to Mississippi Sound he calculated that “[t]he relation of maximum 

penetration to width of mouth is therefore .4167:1, which in my opinion is 

enough to constitute more than a mere curvature of the coast . . . .”138 The 

Court was not called upon to comment on either determination. 

The issue arose again in United States v. Alaska when the state and federal 

governments disagreed as to whether the southeastern portion of Harrison 

Bay is landlocked.139 The state’s expert, Dr. Prescott, constructed a proposed 

closing line, and various penetration lines from it, to various points along 

the mainland coast to emphasize the depth of penetration as compared to 

the length of the closing line. The parties agreed on the length of Dr. 

132. O’Connell, supra, at 394. 

133. These include: Ursus Cove, Portage Bay, Abraham Bay, and Puget Bay. United States v. Louisiana, 

Report of the Special Master of July 31, 1974, at 27-28. 

134. Article 7(2). 

135. Strohl, The International Law of Bays 56-57 (1963). 

136. Beazley, supra, at 13. Presumably Commander Beazley meant that an indentation will qualify if its 

mouth is no more than twice its depth, not that it need be that length. 

137. United States v. Louisiana, Report of the Special Master of July 31, 1974, at 27. 

138. Alabama and Mississippi Boundary Cases, Report of the Special Master of April 9, 1984, at 20. 

139. Harrison Bay is located on the north slope of Alaska. It is divided into two distinct parts, the 

northwestern of which is recognized as an Article 7 bay by both parties. However, the federal government 

contended that the southeastern portion represents a mere curvature in the general direction of the coastline in 

the area. For that reason, it did not accept a closing line across the most seaward headlands of that embayment. 

The United States did, however, recognize two lesser bays within it. 
232 Shore and Sea Boundaries 

Prescott’s proposed closing line, but the means of measuring depth of 

penetration from it does not follow automatically. Four potential methods 

were suggested. 

First, one could begin from the midpoint of the closing line and 

construct a perpendicular to the mainland coast. On a perfect semicircle 

this line would be exactly half the length of the closing line. Second, a 

perpendicular could be drawn from any point on the closing line to the 

deepest point in the indentation that could be reached with a straight line. 

Dr. Prescott tested that method in Harrison Bay and calculated ratios of 53 

and 65 percent.140 Third, a straight (but not perpendicular) line could be 

drawn from the closing line to the point of deepest penetration into the 

indentation.141 Here Dr. Prescott calculated a penetration ratio of 120 

percent. Finally, and Dr. Prescott’s preferred method, is the shortest nonstraight line, from the closing line to the point of deepest penetration. 

In the case of southern Harrison Bay, that produced a ratio of more than 

70 percent. 

The United States urged a more subjective analysis, suggesting that the 

inquiry should go to the feature’s entire configuration. In particular, the 

government pointed out, Dr. Prescott’s lines went to an arm of the feature 

whose inland water status was not in dispute, rather than the shallower 

adjacent feature at issue.142 Dr. Robert Smith, the federal expert, contended 

that when viewed as a whole, the closing line proposed by Alaska encloses 

waters that are not landlocked and the whole of south Harrison Bay should 

not be considered inland. 

The special master carefully considered all of the information offered 

about southern Harrison Bay . He compared the calculations to similar 

information from other indentations that are acknowledged by the United 

States and the courts to constitute juridical bays. In the end he concluded 

that south Harrison Bay meets the requirements of Article 7 and is inland 

water. Report at 226. The United States did not take exception to his 

recommendation. 

The requirements as to depth of penetration remain difficult to 

articulate. Clearly the first sentence of Article 7(2) remains viable. Meeting 

the semicircle test alone does not assure juridical bay status. 

“Landlockedness” requires something more. United States v. Louisiana, 394 

140. The master noted that these ratios exceeded those available for northern Harrison Bay, a water body 

that the United States conceded to be inland. Report at 205. 

141. This method had been suggested by Robert Hodgson, the late State Department geographer, as the 

most logical for determining penetration. Report at 206, citing Hodgson and Alexander, Towards an Objective 

Analysis of Special Circumstances, supra, at 8. 

142. As a general proposition the United States objected that penetration should not be constructed into 

subsidiary water bodies acknowledged to be inland. The master, however, noted that the United States had 

included those subsidiary features for purposes of applying the semicircle test to the entire feature at issue and 

concluded that “surely all of the [Article 7] tests should be applied to the same area.” Report at 203. His 

reasoning seems appropriate. 

Part Two 233 

U.S. 11, 54 (1969). Not surprisingly, the answer will often be in the eye of 

the beholder. The four methods of calculating depth of penetration 

described above will undoubtedly be useful, but they will often appear to 

justify closing lines that are clearly inappropriate. 

The size of a water body may also help determine whether it is 

landlocked. According to Hodgson and Alexander, “[t]he scale of the body 

must also be considered. Basically, the character of the bay must lead to its 

being perceived as part of the land rather than of the sea. Or, conversely, the 

bay, in a practical sense, must be usefully sheltered and isolated from the 

sea. Isolation or detachment from the sea must be considered the key 

factor.”143 As Dr. Hodgson testified in United States v. Louisiana, the smaller 

an indentation, the less that is required to establish that it is landlocked.144 

That is to say, a bay with the maximum 24-mile closing line may be required 

to have more pronounced headlands, deeper penetration, and a greater 

water area than a smaller indentation. 

LANDLOCKED FROM THE VIEW OF THE MARINER. A number of 

commentators have approached the “landlocked” issue from the viewpoint 

of the mariner and sought to identify tests to establish at what point, from 

his perspective, inland waters had been reached. These authorities were 

thoroughly reviewed in the New York/Rhode Island phase of United States v. 

Maine, in which those states contended that Block Island Sound is 

landlocked and considered inland waters. 

The federal government agreed that if Long Island were considered part 

of the mainland, the waters of Long Island Sound are landlocked to a line 

from Montauk Point due north to Watch Hill Point.145 The states contended 

that those inland waters extended farther to enclose Block Island Sound 

with lines from Montauk Point to Block Island and Block Island to Point 

Judith, Rhode Island. The parties could not agree on whether those 

additional waters of Block Island Sound were landlocked.

146 

The United States relied upon the writings of Bowett, Beazley, and 

Prescott, all of whom endorse the proposition that to be landlocked, a 

seaman must be surrounded by land in all but one direction.147 The states 

took a slightly different approach, offering the testimony of Jeremy White 

143. Hodgson and Alexander, supra, at 6; quoted at United States v. Maine, et al. (Rhode Island and New 

York Boundary Case), 469 U.S. 504, 525 (1985). 

144. United States v. Louisiana, Report of the Special Master of July 31, 1974, at 18. 

145. The United States did not concede that Long Island is part of the mainland, but the states convinced 

the special master and the Court that it should be considered so for these purposes. 

146. The parties did agree that the semicircle test is met. 

147. Bowett, testimony in Rhode Island and New York Boundary Case, transcript of November 11, 1981, at 

65, quoted at Report of the Special Master of October Term 1983, at 53 n.40; Beazley, supra, at 13; Prescott, 

supra, at 51-53. Prescott suggests, in addition, that landlocked waters are those that are difficult to enter or leave 

under adverse weather conditions. Id. at 51-53. See also, Strohl, supra, quoted at Rhode Island and New York 

Boundary Case Special Master’s Report. Id. 
234 Shore and Sea Boundaries 

who opined that a ship has reached inland waters when there is land in all 

directions but seaward.148 This formulation would apparently recognize 

inland waters that are open to the sea on two sides rather than only one.149 

Although both tests would appear to be highly objective, it is 

surprisingly difficult to reach consensus on how they might be applied. 

Clearly, any true bay will pass the White test. When the closing line is 

crossed, there is land on 180 degrees of the horizon. Unfortunately, the 

same is true when a mariner enters a bight, or mere curvature of the coast. 

The drafters did not intend to include such features among Article 7 bays.150 

That alone indicates that the test does not conform to the requirements of 

the Convention. 

On the other hand, it is not much easier to determine when a mariner 

has protection from three sides. If his vessel lies just inside the closing line 

of a relatively large, but admitted, juridical bay, he would seem to be 

protected only from two sides. At least it is not apparent that he is more 

landlocked than he might be in an indentation meeting only the White test. 

Despite the attempts to bring objectivity to the inquiry, the matter 

remains subjective. In reviewing the Block Island Sound question, the 

Supreme Court has adopted the federal position, saying “[w]e agree with the 

general proposition that the term ‘landlocked’ implies both that there shall 

be land in all but one direction and also that it should be close enough at 

all points to provide [a seaman] with shelter from all but that one 

direction.”151 Applying those criteria, Block Island Sound was determined 

not to be landlocked or inland waters. In concluding that “the States’ 

proposed closing line is defective because it includes open sea in the 

indentation in violation of the mandates of the Convention,”152 the Court 

was stating a conclusion more than a test. With the infinite number of 

geographic possibilities, that may be the best solution.153 

148. Rhode Island and New York Boundary Case, Report of the Special Master, supra, at 53. 

149. As explained by the special master, Mr. White’s test “is based on the observation that if a ship is on 

the closing line of a bay . . . the angle between the ship and the two headlands, using the ship as the vertex of 

the angle, is 180 degrees. If the ship proceeds into the bay the angle formed on the seaward side is less than 

180 degrees. White, thus, concludes that any point in a bay is landlocked when the sea area, or area of sea 

horizon, is less than 180 degrees.” Id. at 56. 

150. It might be argued that the semicircle test will eliminate mere curvatures but that puts the test 

backward. One cannot conceive of any concavity in the coastline that does not meet the White test. Thus, by 

using it, the semicircle test would become the only means of determining “landlockedness,” a result that the 

Supreme Court has already foreclosed. What is more, in situations akin to Block Island Sound, interior bays, 

with admittedly landlocked waters, might provide the necessary area to permit the larger body to meet the 

semicircle test, even though it clearly includes waters that are not landlocked. 

151. Rhode Island and New York Boundary Case, 469 U.S. 504, 525 (1985), quoting Beazley, supra, at 13. 

152. Id. at 526. 

153. The Court also noted that “[a]s the Special Master and the members of the Baseline Committee 

concluded, the waters in the outer reaches of Block Island in any practical sense are not usefully sheltered and 

isolated from the sea so as to constitute a bay or bay-like formation.” 469 U.S. at 526. Again, this language 

indicates a subjective approach that probably cannot be avoided in applying the first criterion of Article 7. 

Part Two 235 

Examples of waters that have been determined not to be landlocked 

may be more instructive than efforts to craft a dispositive test. We have just 

reviewed the Block Island Sound situation, in which both the special master 

and the Court determined that lines connecting Block Island Sound with 

Long Island and Point Judith enclose waters that are not landlocked.154 

Special Master Armstrong was twice faced with similar determinations. The 

Mississippi River delta has numerous bays along its seaward side, many of 

which are formed by the arms of the various passes to the Gulf. In many 

instances these mainland headlands are, in a sense, extended by tiny islets 

known as mudlumps. The United States proposed that the acknowledged 

bays be closed with lines between headlands on the mainland passes. 

Louisiana argued for more seaward closing lines, anchored on mudlumps 

rather than the mainland. The special master concluded that the state’s 

proposed lines “would not include solely landlocked waters in a coastal 

indentation, but a substantial area of open water beyond the coastal 

line.”155 On that basis he rejected the state’s proposal and his 

recommendations were adopted by the Court.156 

The issue arose again at the mouth of Atchafalaya Bay, to the west of the 

Mississippi delta. Both parties agreed that the Bay qualified under Article 7, 

but they could not agree on the location of the headlands that enclose 

landlocked waters. The federal government nominated South Point on 

Marsh Island. The state contended that Mound Point should be used. The 

master adopted the former terminus, finding that “the relation of Mound 

Point to the coast is such that a line drawn to it would include waters that 

cannot be viewed as ‘landlocked.’”157 

The Coastline Committee has also faced the issue and, at least twice, 

concluded that water bodies were not “well-marked” indentations. It 

determined that the indentation between Cape Spencer and Cape Fanshaw, 

Alaska, is merely a bight, or change in the direction of the coastline, and not 

a true bay.158 Likewise, it decided that southeastern Harrison Bay, Alaska, is 

not, in its entirety, more than a curvature in an otherwise straight coast.159 

It will seem that such determinations have been highly subjective and 

probably will remain so. Commentators and the Court have tried to 

154. 469 U.S. 504, 525; Report of the Special Master of October Term 1983, at 59 n.45. 

155. United States v. Louisiana, Report of the Special Master of July 31, 1974, at 38. The master went on 

to note that the islands do not qualify for consideration as extensions of the mainland, a subject that is covered 

separately herein. 

156. United States v. Louisiana, 420 U.S. 529 (1975). 

157. United States v. Louisiana, Report of the Special Master of July 31, 1974, at 53. Again, the 

recommendation was accepted by the Court. 420 U.S. 529 (1975). 

158. Minutes of September 20, 1971. 

159. Minutes of April 14, 1982. That decision was, of course, challenged by Alaska. Special Master Mann 

recommended the state’s position and the United States did not take exception. 
236 Shore and Sea Boundaries 

provide objective criteria to determine when waters are landlocked but the 

issue does not appear to lend itself to objective resolution. Future 

controversies will undoubtedly be resolved as have those in the past. 

Masters and the Court will review specific indentations, with the subjective 

criteria in mind, and determine on a case-by-case basis which bodies are 

indeed landlocked. 

INDENTATION INTO THE MAINLAND. A final consideration with 

respect to the subjective criteria is that the well-marked indentation must be 

“into the mainland.” Bays may not be formed by islands extending out 

from the mainland even though the waters thus enclosed are, in a certain 

sense, landlocked. An offshore area formed by enclosing waters between 

the mainland and islands is a projection from the mainland, not an 

indentation into it. (Figure 45) 

Figure 45. Nantucket Sound, off the coast of Cape Cod, Massachusetts. 

This water body is formed by islands that are not considered part of the 

mainland for boundary purposes. (Based on NOAA Chart 13200) 

Part Two 237 

This is one of the subjects that was open to question in international law 

prior to 1958 but specifically resolved by the Convention. Three distinct 

situations arise, depending on the relationship of islands to the mainland 

and their distance offshore. First, as with the California Channel Islands, 

distances may be so great that the “enclosed” water body contains straits of 

high seas so that a vessel may enter, transit the water body, and exit without 

passing within 3 miles of the mainland or an island. This would appear to 

present the least compelling case for inland water status. Second, barrier 

islands may lie within 6 miles of each other but, on occasion, more than 6 

miles of the mainland, creating enclaves of high seas that may only be 

reached by transiting the territorial sea. Mississippi Sound and the 

southeastern and northern coasts of Alaska are examples. Finally, the 

islands may be within 6 miles of the mainland so that all enclosed waters 

are at least territorial but, if islands are joined by closing lines, minor areas 

of jurisdiction are picked up to the seaward by measuring from those lines 

rather than the low-water lines on the islands alone. Caillou Bay, Louisiana, 

fits this description. 

Prior to 1958, areas enclosed by the mainland and offshore islands were 

sometimes referred to as “fictitious bays.” A number of proposals had been 

discussed that would permit the closure of such water bodies but, according 

to the Supreme Court, attempts to apply bay-like criteria to such areas “have 

not got beyond the stage of proposals.”160 Nevertheless, the United States 

attempted to employ just such criteria when faced with constructing a coast 

line for Louisiana before the Supreme Court announced that the 1958 

Convention would be used for that purpose. 

In 1950 the Supreme Court said, in effect, that the same rules apply to 

Louisiana as had been applied to California in 1947. That is, the federal 

government and not the state held paramount rights to submerged lands 

beneath the territorial sea.161 That decision made it necessary to delimit 

inland waters along the complicated Louisiana coast. A coast line known as 

160. United States v. Louisiana, 394 U.S. 11, at 70 n.93 (1969). According to the Court, “[t]he expression 

seems to have originated in a proposal by the Committee of Experts, made to the Fifth Session of the 

International Law Commission, suggesting a ten-mile rule for bays, a general ten-mile limit for straight 

baselines, providing that baselines should not be drawn to islands more than five miles from shore, and 

limiting baselines to five miles in groups of islands or between such groups and the mainland, except that in 

such a group one opening could be ten miles. The latter situation was called a ‘fictitious bay.’” United States v. 

California, 381 U.S. 139, 170 n.38 (1965). California claimed that the Strait of Juan de Fuca is a fictitious bay, 

a precedent, it thought, for claiming the Santa Barbara Channel, but the Court concluded that the Strait had 

not been claimed by the United States. Id. at 171. 

For a discussion of various proposals, beginning with the 1930 Hague Conference, including policy 

considerations affecting the propriety of enclosing such areas as territorial sea or inland waters, see McDougal 

and Burke, The Public Order of the Oceans 373-377 and 386 (1962). 

161. United States v. Louisiana, 339 U.S. 699 (1950). 
238 Shore and Sea Boundaries Part Two 239 

the Chapman Line (after the then secretary of the interior) was developed. 

That line enclosed a number of water bodies formed by the mainland and 

barrier islands such that no entrance exceeded 10 nautical miles, the 

distance accepted by the United States at the time as the maximum for bay 

closing lines. Most notable were Chandeleur Sound, on the east side of the 

Mississippi River delta, and Caillou Bay, some distance west.162 (Figure 46) 

The 1958 Convention, and its adoption by the Supreme Court for 

Submerged Lands Act purposes, erased any doubt about the existence of 

“fictitious bays.” The Convention provides two means for dealing with 

islands and water areas adjacent to them. First, each island has its own 

territorial sea, measured as it would be from the mainland. This is the selfexecuting provision of Article 10. Article 4, in contrast, provides that 

straight baselines may be constructed to join fringing islands and that the 

waters thus enclosed will be inland. That Article is not self-executing and 

such lines must be specifically adopted by the coastal nation. 

The Supreme Court recognized that “[t]he drafters of the Convention 

and their predecessors were aware that international law permitted such 

island fringes in some circumstances to enclose inland waters”163 and 

concluded that “it is apparent from the face and the history of the 

Convention that such insular formations were intended to be governed 

solely by the provision in Article 4 for straight baselines.”164 “The deliberate 

decision was that such island formations are not to be treated differently 

from any other islands unless the coastal nation decides to draw straight 

baselines.”165 Of course the Court held that only the national government 

could adopt the straight baseline method for the United States and that it 

had not done so.166 

162. For a thorough discussion of the Chapman Line’s derivation, see 1 Shalowitz, supra, at 108-112. 

163. United States v. Louisiana, 394 U.S. 11, 68 (1969). 

164. Id. at 67-68. The Court noted that Strohl suggests that “a fringe of islands can make up one side of 

a bay” but, at the same time acknowledged that under the Convention, only the straight baseline provisions 

would authorize such a line. Id. at 71. Pearcy, one-time geographer of the Department of State, is cited as the 

only authority who suggested that islands might form the side of an Article 7 bay. Id. at 72. Pearcy was referring 

to Florida Bay, formed on the south by the Florida Keys. Since that reference, the Florida coast line has been 

resolved by litigation and Florida Bay was stipulated not to be an Article 7 indentation. United States v. Florida, 

425 U.S. 791 (1976). 

165. Id. at 71. 

166. “In the same vein, we held that the choice whether to employ the concept of a ‘fictitious bay’ was 

that of the Federal Government alone. 381 U.S., at 172. That holding was, of course, consistent with the 

conclusion that the drawing of straight baselines is left to the Federal Government, for a ‘fictitious bay’ is merely 

the configuration which results from drawing straight baselines from the mainland to a string of islands along 

the coast. See 381 U.S., at 170 n.38.” United States v. Louisiana, 394 U.S. 11, at 72 n.95 (1969). The Court had 

previously ruled in California that “as with the drawing of straight baselines, we hold that if the United States 

does not choose to employ the concept of a ‘fictitious bay’ in order to extend our international boundaries 

around the islands framing Santa Barbara Channel, it cannot be forced to do so by California.” United States 

v. California, 381 U.S. 139, 172 (1965). 

Figure 46. Caillou Bay, Louisiana. This bay might have been 

treated as inland water under pre-Convention rules sometimes 

employed by the United States. (Based on NOAA Chart 11340) 

Figure 47. Mainland coast of Caillou Bay, Louisiana. With the 

islands erased, there are no landlocked waters. 

(Based on NOAA Chart 11340) 
240 Shore and Sea Boundaries 

With the Supreme Court’s adoption of the Convention for Submerged 

Lands Act purposes, the federal government abandoned the Chapman Line 

and employed the Convention’s principles in its litigation with Louisiana. 

Areas such as Caillou Bay became territorial seas under the Convention’s 

principles and, although the state claimed that they continued as inland 

waters under a number of theories, the master and Court eventually 

ruled otherwise.167 

It is now clear that “[a]rticle 7 does not encompass bays formed in part 

by islands which cannot realistically be considered part of the mainland.”168 

Thus, where there is a question as to whether an indentation into the 

mainland exists in the vicinity of offshore islands, the United States first 

inspects a chart of the area with the islands erased. Any indentation into the 

mainland is then tested for bay status without regard to the islands.169 

(Figure 47) (Compare with Figure 46) If a bay exists, the islands are 

restored to determine whether they form multiple mouths to the bay and 

thereby affect the closing line. But the bay may not be created by the islands. 

THE SEMICIRCLE TEST. The presumably more objective criterion for 

juridical bay status is the semicircle test. Article 7(2) of the Convention 

provides that to qualify as a bay, an indentation must have an area at least 

as large as a semicircle whose diameter is the mouth of the indentation. 

(Figure 48) 

As discussed above, the Supreme Court and its special masters have 

interpreted Article 7 to impose this test as an absolute minimum limit, once 

an indentation has been determined to be landlocked through the more 

subjective criteria.170 A water body may meet the semicircle test yet fail to 

167. Caillou Bay provides the best example of an area that might be said to have been claimed by the 

United States under principles employed prior to the Convention yet no longer claimed after adoption of that 

treaty. To that extent, it stands for the proposition that states are not entitled to pre-Convention closing lines 

that may have been more seaward than those permitted under the provisions of the Convention now employed 

by the United States. Some states have contended that this constitutes an impermissible contraction of state 

territory. In fact, it is not established that the principles adopted for construction of the Chapman Line were 

ever the official international position of the United States. It is clear, however, that in most cases application 

of Convention principles, such as the 24-mile bay closing lines instead of the traditional 10, has worked to the 

decided benefit of the states. 

The solicitor general determined that the United States would not withdraw its concession of Chandeleur 

Sound and entered a stipulation that recognizes Louisiana’s Submerged Lands Act rights in that body. The 

stipulation represents no more than federal largess and does not purport to be based upon the application of 

Convention principles. 

168. United States v. Louisiana, 394 U.S. 11, 67 (1969). As the Court has noted, “[A]rticle 7 defines bays as 

indentations in the ‘coast,’ a term which is used in contrast with ‘islands’ throughout the Convention.” Id. at 67. 

169. See Report of the Special Master in United States v. Maine, et al. (Rhode Island/New York) of October 

Term 1983, at 24 n.17. 

170. See for example, Report of the Special Master in United States v. Maine, et al. (Rhode Island/New York) of 

October Term 1983, at 51-52, n.40, quoting Hodgson and Alexander, supra. Hodgson has indicated that “while 

the juridical bay must meet the semi-circle test, a perfect semi-circle (which would not exist in nature) would not 

in itself meet the criterion of being landlocked.” Hodgson, Toward a More Objective Analysis, supra, at 20. 

Part Two 241 

Figure 48. The semicircle test. Applying the semicircle test, indentation "B" 

qualifies as a bay, but indentation "A" does not. (After I Shalowitz, Figure 4) 

qualify on other bases,171 or may appear to be a bay yet not achieve that 

status for failure to enclose the area of a semicircle.172 

Only one substantial issue has arisen in litigation concerning the 

application of the semicircle test to actual geographic situations. That is, 

what subsidiary water bodies are to be included within the area measured? 

It is not uncommon to have lesser water bodies adjacent to, or emptying 

into, the indentation being considered for juridical bay status. Article 7 

does not make clear whether, in such cases, the area of those separate bodies 

is to be included for purposes of the semicircle measurement. 

History. The original formulation of the semicircle test avoided this 

issue. It directed that a belt of water be drawn along the shore of the 

indentation with a width equal to one-fourth of the mouth and that the area 

outside that belt but within the mouth be compared to a semicircle with a 

diameter of one-half the length of the mouth. If the area of the interior 

exceeded that of the hypothetical semicircle, the indentation qualified.173 In 

171. For example, the Supreme Court rejected Louisiana’s argument that any portion of East Bay that met 

the semicircle test should be considered inland waters even though the entirety of that water body is not. 

United States v. Louisiana, 394 U.S. 11, 53-54 (1969). 

172. It has been said, for example, that “Santa Monica Bay on the California coast looks like a bay but 

does not qualify in the semi-circle test.” United States Department of State, Sovereignty of the Sea 13 (1969). 

173. See United States v. California, 381 U.S. 139, 144 (1965). The proposal is often referred to as the 

“Boggs Formula,” after the then geographer of the Department of State, but was apparently developed by 

Admiral Patton of the Coast Survey at the request of the State Department. 
242 Shore and Sea Boundaries 

most instances, subsidiary water bodies would be subsumed within the 

interior belt and not measured for semicircle test purposes. It was then 

offered by the United States as an appropriate method of determining 

inland water status at the 1930 Hague Conference on the Law of the Sea. 

Shalowitz, Legal-Technical Aspects of the Submerged Lands Cases 29 (1954). It 

is also sometimes known as “the reduced area method.” 

Of course, no treaty resulted from the 1930 Conference and the test, as 

originally proposed, was thought to be too complicated for practical use 

unless applied in advance and published on coastal charts.174 

In 1953 Shalowitz revisited the adjacent water body issue. After 

discussing the earlier United States proposal, he concluded that an easier 

approach might be to determine the mouths of interior water bodies in the 

first instance. Any that qualified as inland waters would be excluded from 

the area measurement to determine whether the principal water body met 

the semicircle test. Others would be included.175 Such an approach is not 

inconsistent with the language of Article 7 as it now stands. That language 

was first proposed by the committee of experts in 1953.176 Before it had 

been interpreted by the Supreme Court, Shalowitz recognized that 

problems of interpretation would doubtless arise, making it necessary to 

establish “a set of secondary rules within the framework of the primary 

rule.”177 O’Connell seems to agree, noting that the method has been 

simplified without attention to the question of whether it can be easily 

applied by the mariner.178 

174. O’Connell, supra, at 392. In fact, the proposal had consequences that required refinement. For 

example, Shalowitz opined that fractions other than one-fourth might sometimes have to be used “in order not 

to generalize the shape of the bay too much.” 1 Shalowitz, supra, at 38. Whether and when other fractions 

would be used introduces a subjective judgment that reduces the appeal of the test. Yet the fact that San Diego 

Bay does not qualify as inland water using the one quarter of the headland-to-headland distance indicates that 

a significant shortcoming exists. 

The formula never became a rule of international law, or even the official policy of the United States. 

Report of the Special Master in United States v. California of October 14, 1952, at 25. Yet the federal government 

urged that it be employed in the California case as an appropriate means of determining inland water status and 

the master made that recommendation. Id. at 25 and 26. That issue became moot when the Court later 

adopted the 1958 Convention for Submerged Lands Act purposes. As a subsequent master has noted, “[a]ny 

bay which meets the requirements of the semicircle test under Article 7 of the Geneva Convention obviously 

meets those of the Boggs formula.” Alabama and Mississippi Boundary Cases, Report of the Special Master of 

April 9, 1984, at 40. 

According to Shalowitz, the method was used by the United States Tariff Commission in its 1930 exercise 

to delimit the territorial sea of the United States for the purpose of compiling fisheries statistics, by the 

Department of Commerce for purposes of measuring the areas of coastal states for the 1940 census, and the 

Department of the Interior in its construction of the Chapman Line along the Louisiana coast. 1 Shalowitz, 

supra, at 40-41. 

For a graphic example of how the test is applied, see 1 Shalowitz, supra, at 37. 

175. Shalowitz, The Concept of a Bay as Inland Waters, Surveying and Mapping, Vol. XIII, No. 4 (1953) 432 

at 438. Dr. Hodgson has taken a similar position, contending that one must distinguish among water bodies 

and in measuring one should not include the water area of another, distinct indentation or subsidiary feature. 

Hodgson, Toward a More Objective Analysis . . ., supra, at 6. Dr. Hodgson so testified in United States v. Louisiana, 

where his proposals for area measurement were adopted by the master and the closing lines that resulted were 

eventually incorporated in a Court decree. United States v. Louisiana, 422 U.S. 13 (1975). 

176. Report annexed to U.N. Doc. A/CN.4.61/Add. 1 (1953). See also, 4 Whiteman, supra, at 222. 

177. 1 Shalowitz, supra, at 41. 

178. 1 O’Connell, supra, at 392. 

Part Two 243 

The Louisiana case provided an opportunity to consider the question in 

the context of an intricate coastline. Two controversies arose immediately. 

One involved the treatment of rivers that flow into an indentation and 

whether any part of the area of the river should be included in the area 

measurement being made to determine whether the indentation qualified 

as a bay. The second involved subsidiary bays, and whether their areas 

could be included for purposes of testing a more seaward indentation. 

In each instance, it was in the state’s interest to maximize water area so 

as to assure that the semicircle test would be met in the greatest number of 

cases, resulting in more bay closing lines and increased state jurisdiction. 

Louisiana suggested a number of alternative theories for including 

subsidiary water bodies within the area to be measured for semicircle 

purposes. First, the state proposed that the low-water line be followed 

wherever it goes. Second, it recommended that all salt waters be included. 

Third, it suggested that all tributaries that lead to the main stream of the 

Mississippi River be followed until the river is reached, including all land 

areas encompassed by such a line. Fourth, the same water bodies would be 

included, but only those land areas lying within the mouths of the tributary 

waters and the bay being measured. Finally, it proposed closing off water 

bodies where they entered the bay.179 

The United States emphasized that only the water body being tested 

should be measured, ignoring tributaries and lands within them. This 

position appears to have been the same as Louisiana’s final alternative. 

Rivers. East Bay, at the southern tip of the Mississippi River delta, 

contains an extremely productive oil and gas field. Although the two major 

distributaries of the Mississippi in the area form the sides of East Bay, a 

number of minor passes from the Mississippi empty into it. If the area of 

East Bay is measured by following its shores, and crossing these river 

mouths such that they are not included in the area measurement, the bay 

does not meet the semicircle test. Louisiana made each of the arguments 

just mentioned to justify inclusion of some of the river water within the bay. 

(Figure 49) 

It contended that its first position conforms to the literal wording of 

Article 7, which refers to the “low-water mark along the shore of the 

indentation.”180 Yet, in practice, this proposal is unworkable. In the simple 

case of a single river emptying into an indentation, one might begin at the 

headland of the indentation, proceed along the low water to the river 

179. United States v. Louisiana, Report of the Special Master of July 31, 1974, at 30-31. 

180. Louisiana also argued that this interpretation is supported by Article 13 of the Convention, which 

provides that “[i]f a river flows directly into the sea, the baseline shall be a straight line across the mouth of the 

river between points on the low-tide of its banks.” As noted by the special master, “[o]n the principle of expressio 

unius est exclusio alterius, Louisiana argues that if a river does not flow directly into the sea but instead into a bay, 

a straight line should not be drawn across its mouth but instead the low-water markaround the shore of the bay 

should be followed up into tributary waters.” Report of the Special Master of July 31, 1974, at 30. 
244 Shore and Sea Boundaries 

Figure 49. East Bay, Louisiana. Small channels connect the Southwest Pass 

of the Mississippi River with the bay. (Based on NOAA Chart 11361 ) 

mouth, follow the low-water line into the river and upstream to its 

headwaters, continue down the opposite bank back to the indentation and 

seaward to its mouth. The Mississippi delta is even more difficult to deal 

with. By following a channel from East Bay, one shortly arrives at a primary 

trunk of the Mississippi. By continuing along the low-water line, one 

proceeds either downstream, eventually returning to the Gulf of Mexico or 

the indentation being measured, or upstream, where another distributary 

channel is eventually reached. If the low-water line is followed, one simply 

returns to the Gulf or the indentation sought to be measured. In either case, 

it is actually the land forming the indentation that is being measured, not 

the water area. In neither case does the procedure make any sense. 

Louisiana’s purpose, of course, was to include substantial portions of 

the Mississippi River itself, but the proposal could not have that effect 

Part Two 245 

without crossing a channel at some point. And if that is going to be done, 

no particular crossing is more logical than that where the channel empties 

into the indentation being defined. 

The United States stood by its primary contention that the semicircle 

test is to be applied to a particular indentation and that clearly separate 

water bodies should not be included. 

The state’s second proposal is related. It would have all river waters to 

the limits of tidal effect included within the area of the indentation into 

which the river empties. The suggestion does not have the same problem of 

practical application as the “follow the low-water line” approach and has 

enjoyed approval among experts on the subject. 

In Post Office v. Estuary Radio Ltd., the parties addressed the identical 

issue. The British government was interested in maximizing the area to be 

measured so as to qualify the Thames estuary as a bay and establish 

jurisdiction over the radio station/defendant. To do so, the government 

argued that the area of the Thames up to Richmond Lock should be 

measured along with subsidiary rivers to the distance that they were affected 

by the rise and fall of the tide. The defendant contended, as did the United 

States in the Louisiana case, that closing lines should be drawn across the 

mouths of rivers and their waters excluded for purposes of applying the 

semicircle test to the Thames estuary.181 

However, the issue was dispositive only if Orfordness and North 

Foreland were treated as the natural entrance points to the embayment. In 

fact, the English Court of Appeal selected the Naze and Foreness as the 

natural entrance points, making it unnecessary to decide the area 

measurement issue.182 Nevertheless, O’Conner J. spoke to the issue, 

rejecting the suggestion that tributary waters should not be included. 

Subsequent British commentators also acknowledged that the matter is 

open to that interpretation.183 

Like Louisiana’s primary proposal, however, the “limits of the tides” test 

makes little sense when applied to the Mississippi River. Tidal effect is felt 

upriver to Baton Rouge, a distance of 84 miles. As the special master 

pointed out, if the state’s theory were accepted, “the entire lower portion of 

the State of Louisiana would have to be treated as one gigantic over-large 

bay, which could only be done as a practical matter if the United States had 

181. 1 O’Connell, supra, at 398-399. 

182. Id. at 398-399. 

183. Beazley, supra, at 15, suggests that one should look for the point at which the water is no longer sea 

water, which will normally be the limit of tidal effect. 1 O’Connell, supra, at 398 indicates that Article 7(3) is 

open to that same interpretation and bases his position on one of the arguments relied upon by Louisiana. 

Prescott agrees, indicating that tidal rivers should be included as part of a bay to the limit of tidal influence. 

Prescott, supra, at 60. 
246 Shore and Sea Boundaries 

adopted a system of straight baselines, which as previously demonstrated it 

has not done.”184 Furthermore, the master noted that the Supreme Court 

had already concluded that the whole of East Bay did not meet the 

semicircle test, clearly indicating that it envisioned no such expansive 

application of the test.185 

The master rejected each of Louisiana’s first four alternatives and 

recommended a method of area measurement for East Bay that excluded 

adjacent river channels. His recommendations were adopted by the 

Court,186 and a coast line employing his principles was incorporated in a 

Supreme Court decree.187 

Subsidiary Bays. A more difficult problem is determining whether or not 

to include within the area measurement adjacent water bodies that are more 

in the nature of coves or bays. Louisiana’s approach was easily applied. As 

before, the state contended that the low-water line should merely be 

followed wherever it led, thereby including all adjacent water bodies.188 

The federal government again took the position that the Convention 

referred to “that indentation” and, therefore, required that measurement be 

limited to what might reasonably be considered part of the single, outer 

indentation.189 The United States conceded that certain tributary water 

bodies might be included but denied that any rule of law existed that 

justified the inclusion of any that might be reached by following the lowwater line wherever it might lead.190 

The distinction was to be based upon the nature of the connection 

between the two water bodies. If the connection were a narrow channel, the 

federal government took the position that the tributary water body should 

not be included as part of the area of the indentation under consideration. 

On the other hand, if the relationship were more in the nature of a bay 

opening into a larger bay, the areas would be combined. 

184. United States v. Louisiana, Report of the Special Master of July 31, 1974, at 29. 

185. Report of July 31, 1974, at 29. 

186. United States v. Louisiana, 420 U.S. 529 (1975). 

187. United States v. Louisiana, 422 U.S. 13 (1975). 

188. 394 U.S. at 50. 1 O’Connell, supra, at 399-400. 

189. 1 O’Connell, supra, at 400. 

190. As the Supreme Court noted, “[t]he United States does not reject the notion that some indentations 

which would qualify independently as bays may nonetheless be considered as part of larger indentations for 

purposes of the semicircle test; but it denies the existence of any rule that all tributary waters are so includible.” 

394 U.S. at 51. 

In fact, the geographer of the State Department had written that “the water of bays within bays may be 

included as water surface of the outer bay in determining the dimensions of a coastal indentation.” Sovereignty 

of the Sea, supra, at 13. Likewise, Shalowitz had said that “in the application of the semicircular rule to an 

indentation containing pockets, coves or tributary waterways, the area of whole indentations (including 

pockets, coves, etc.) is compared with the area of a semicircle.” 1 Shalowitz, supra, at 220 n.28. Both 

authorities were cited by the Court. 394 U.S. at 51 n.66. 

Part Two 247 

The Court’s treatment of an area denominated “outer-Vermilion Bay” by 

the state makes clear that it accepted the federal approach. The United 

States argued that the truly inland areas, “inner-” Vermilion Bay and the 

adjacent Cote Blanche complex, had their own distinct and isolated 

configurations, and should not be considered together with “outer-” 

Vermilion Bay. Nevertheless, by following the low-water line they would 

clearly have been included. The Court emphasized that the water bodies 

were connected only by narrow channels and that Vermilion Bay could not 

be included to assist outer-Vermilion Bay in meeting the semicircle test.191 

On the other hand, if the waterway connecting the two bodies is 

relatively large except for the existence of islands within it, those islands will 

not prevent their treatment as a single indentation. The Supreme Court 

faced that issue in its consideration of Ascension Bay, on the west side of the 

Mississippi River delta. The state contended that it is an overlarge bay and 

meets the semicircle test by including the water areas of the CaminadaBarataria Bay complex to the north. The United States argued that the latter 

bodies are distinct, being separated from Ascension Bay by a series of barrier 

islands. (Figure 50) The Court adopted the state’s position. It reasoned 

that Article 7 seeks to keep islands from defeating the semicircle test and the 

barrier islands, therefore, should be ignored when applying that test to 

Ascension Bay. Once that was done, the opening to Caminada-Barataria is 

so broad as to make that subsidiary bay includable under even the federal 

position, and Ascension Bay meets the test.192 

Hodgson later endorsed what may be an even more conservative 

approach than that taken by the federal government in the Louisiana 

case.193 O’Connell has also discussed the subject. He cautions that when 

without the inclusion of tributary bays an indentation into the coast would 

be a mere curvature, the application of Article 7(2) would be difficult. He 

implies that, although each case will have to be determined on its own 

geography, the Convention requires that all waters within the closing line 

must be landlocked and care should be taken before including tributary 

bays to aid the qualification of an area that would, in their absence, be no 

more than a curvature of the coast. 

191. 394 U.S. at 51. 1 O’Connell, supra, at 400. 

192. United States v. Louisiana, 394 U.S. at 52-53. The Court applied the same reasoning to West Bay. Id. 

at 53. O’Connell seems to interpret this decision as support for the proposition that the low-water line is to be 

followed into subsidiary bays when making semicircle test measurements. 1 O’Connell, supra, at 400. In fact, 

the Court deals with that issue separately, concluding that that determination depends upon the nature of the 

opening in the absence of islands. 

193. In Hodgson, Toward a More Objective Analysis, supra, at 6, he suggests that “[t]o determine the unique 

character of a bay, it is necessary to isolate all water surfaces which do not conform to the general definition of a 

bay and are geographically isolated from it or which do not conform with those of other categories of features, 

i.e., rivers, canals, estuaries, etc. These hydrologic or hydrographic types are then geographically detached from the 

specific bay under examination. Rivers, lagoons, subsidiary bays, channels and the like should be separated . . . .” 
248 Shore and Sea Boundaries 

Figure 50. Ascension Bay, Louisiana, with adjoining Caminada and Barataria Bays. 

The entrance to San Francisco Bay provides a graphic example of the 

issue. If the Golden Gate and all waters to the east are ignored, there is a 

more seaward indentation into the coast with identifiable headlands. That 

indentation alone will not meet the semicircle test. But, by including the 

clearly inland waters of San Francisco Bay, the test is met. (Figure 51) 

Apparently even California recognized that such inclusion would be 

inappropriate when it agreed to a Supreme Court decree limiting inland 

waters in the area to those landward of the Golden Gate.194 

The Supreme Court of Nova Scotia considered the issue in Re Dominion 

Coal Company and County of Cape Breton, where it concluded that an area 

known as Spanish Bay, seaward of Sydney Harbor and the estuary entrance 

to Bras D’Or Lakes, was a mere curvature of the coast unless the inner water 

bodies were included. It determined that they should not be and did not 

enclose the whole of Spanish Bay.195 

194. United States v. California, 432 U.S. 40, 41 (1977). 

195. 40 D.L.R.2d 593 (1963). See also, 1 O’Connell, supra, at 402. 

Part Two 249 

Figure 51. Entrance to San Francisco Bay, California. The area seaward of 

the Golden Gate would arguably be inland water if San Francisco Bay 

could be used to meet the semicircle test. 

Islands within the Indentation. Article 7(3) provides, in part, that 

“[i]slands within an indentation shall be included [for semicircle test 

purposes] as if they were part of the water area of the indentation.” This 

provision has its genesis in the original formulation of the semicircle test, 

which employed a band within the indentation the width of one-fourth the 

length of the closing line. The originators of that scheme thought it too 

complicated to deal with islands separately, so suggested that they be 

ignored. Under the semicircle test as it has evolved in Article 7, islands 

would not create the same complication. Nevertheless, the drafters 

determined that the area taken up by islands within an indentation should 

be treated as if it were water for purposes of the semicircle test. As Beazley 

points out, there is a certain logic to this approach because the existence of 

islands “increases the internal character of the waters.”196 Although not 

196. Beazley, supra, at 21. 
250 Shore and Sea Boundaries 

mentioned in the Convention, we must assume that low-tide elevations are 

to be treated as islands for this purpose.197 

There is, however, one instance in which an island should be considered 

as land area. Technically, under the Convention, an island is any “naturally 

formed area of land, surrounded by water, which is above water at high 

tide.”198 Yet the Supreme Court has concluded that, in certain limited 

circumstances, islands may be treated as part of the mainland.199 This may 

occur when an island is separated from the mainland by a narrow channel. 

Although the situation arose in the context of the canal-riddled marshlands 

of the Mississippi delta, even Long Island, New York, has since been ruled 

part of the mainland, and therefore not an island, by the Court.200 To be 

consistent, islands within an indentation should be subjected to the same 

scrutiny. If they are legally part of the mainland, under the criteria adopted 

by the Court, then they should not be treated as islands for purposes of the 

semicircle test. That is, they should not be included as part of the “water” 

area of the indentation. 

The Court has not, to date, had occasion to consider this application of 

its “island part of mainland” doctrine. The issue arose before the special 

master in United States v. Louisiana but on a matter that was ultimately 

decided on other grounds. The state contended that a closing line should 

be drawn across Bucket Bend Bay, on the east side of the Mississippi delta, 

with termini on offshore mudlumps. The United States argued that the 

mudlumps are inappropriate headlands since they are not realistically part 

of the mainland and, in addition, that the area enclosed by such a line did 

not meet the semicircle test. In fact, the area measurement was extremely 

close and the federal contention rested upon the exclusion of the area of an 

“island” within the indentation which runs parallel to the mainland and is 

separated from it by the narrowest of channels. (Figure 52) Louisiana took 

the position that the “island part of mainland” doctrine is properly related 

only to headland selection and that all islands within the indentation, no 

matter how closely associated with the land are to be treated as water. As it 

turned out, the special master accepted the federal argument that the 

mudlumps were inappropriate headlands and the interior island question 

became moot. However, there is no reason to believe that the Court would 

treat an island as mainland for headland purposes and as water in applying 

the semicircle test. 

197. Id. at 18. 

198. Article 10(1). 

199. United States v. Louisiana, 394 U.S. 11, 62-63 (1969). 

200. United States v. Maine, et al. (Rhode Island/New York), 469 U.S. 504, 512-520 (1985). 

Part Two 251 

Figure 52. Bucket Bend Bay, Louisiana. Whether or not the formation in the 

inset is legally assimilated to the mainland may affect the outcome of the 

semicircle test as applied to Bucket Bend Bay. (Based on NOAA Chart 11352) 

Clearly the Court has rejected Louisiana’s argument that the island 

assimilation principle is only applicable to the matter of headland selection. 

As discussed above, it did not agree with the state’s contention that outerVermilion Bay is part of a larger indentation because it is attached to 

Vermilion Bay only by a narrow passageway. (Figure 53) Yet that passage is 

between Marsh Island and the mainland and the Court decided at the same 

time that islands separating water bodies would not be allowed to defeat the 

semicircle test.201 Thus, the Court must have been treating Marsh Island as 

part of the mainland in its rejection of the outer-Vermilion Bay claim or it 

would have ignored the island as it did those at the entrance to CaminadaBarataria and West Bays. When applying the terms of the Convention, a 

land area must be island or mainland for all purposes. 

201. United States v. Louisiana, supra, 394 U.S. at 52-53. 
252 Shore and Sea Boundaries 

Figure 53. Marsh Island, Louisiana. The channel between the island and 

the mainland prevents Marsh Island from being assimilated to mainland 

Louisiana. (Based on NOAA Chart 11349) 

Artificial Island s and Low-Tide Elevations within the Indentation. Artificial 

islands within an indentation create an entirely unconsidered situation. 

Article 7 specifically provides that the area of “islands” shall be treated as 

water for purposes of the semicircle test. Just as specifically, Article 10 

requires that islands be “naturally formed.” Query whether a spoil bank 

within the indentation is counted as water area or as land. One can argue 

that by specifically including islands as water area, and ignoring other 

features, the drafters must be assumed to have intended no other 

exceptions. Yet, as Beazley points out, it seems improper to treat low-tide 

elevations differently for this purpose. Like low-tide elevations, artificial 

islands certainly do not detract from the landlocked nature of the 

indentation. Article 7(2) speaks in terms of measuring the “indentation,” 

not the “water area.” Thus, the better argument seems to be that low-tide 

elevations and artificial islands within the indentation are not to be 

subtracted from the area measurement save in the rare instances in which 

Part Two 253 

they should be treated as part of the mainland because of their adjacency 

and under the same criteria as would be applied to natural formations.202 

Islands in the Mouth of the Indentation. Although a bay must be an 

indentation into the mainland, and may not be formed by islands along an 

otherwise straight coast, islands in the mouth of an indentation may enable 

that water body to meet the semicircle test when otherwise it would not. 

This can occur in either of two geographic circumstances. 

First, the islands may reduce the length of the closing line, thus reducing 

the size of the semicircle whose area must be matched by the indentation. 

The Caminada-Barataria, Louisiana, complex is an example. (Figure 54) 

Article 7(3) provides that “[w]here, because of the presence of islands, an 

Figure 54. Caminada-Barataria Bay, Louisiana, with multiple mouths 

formed by islands 

202. Of course, artificial and natural features are not treated identically for purposes of coast line 

determination. Once severed from the mainland, an artificial structure becomes a man-made island and loses 

its status as part of the coast line. 394 U.S. at 41 n.48. However, nothing in the Convention seems to compel 

the conclusion that artificial islands should be treated as mainland rather than islands when making semicircle 

calculations. 
254 Shore and Sea Boundaries 

indentation has more than one mouth, the semi-circle shall be drawn on 

a line as long as the sum total of the lengths of the lines across the 

different mouths.”203 

This provision is intended to enhance the likelihood that a particular 

indentation will qualify for bay status when its waters are landlocked not 

only by the mainland but by islands between the mainland headlands. In 

the absence of such islands the hypothetical would have a diameter equal to 

the distance between the mainland headlands. But with islands creating 

multiple mouths, that distance is typically reduced, thereby reducing the 

depth that the indentation must penetrate into the mainland in order to 

meet the semicircle test. 

Second, the islands may lie seaward of a direct line between mainland 

headlands, thereby enclosing more water area than would lie within the 

mainland to mainland closing line.204 (Figure 55) That additional water 

area, in a close case, might be enough to enable the indentation to meet the 

semicircle test.205 

Figure 55. Multiple mouths to a juridical bay. The multiple mouths formed by 

these screening islands are seaward of a direct line between mainland headlands. 

203. Determining whether particular islands actually create multiple mouths to an indentation is a 

separate, and sometimes hotly contested, issue. 

204. Again, just which seaward islands create multiple mouths is discussed below. 

205. Scammon Bay, Alaska, appears to be an example. See Coastline Committee Minutes of September 

14, 1970. 

Part Two 255 

The existence of islands may have a third effect that is unrelated to the 

semicircle test. Article 7(4) provides that a juridical bay’s closing line may 

not exceed 24 miles in length. Where islands create multiple mouths their 

combined length may fall within that limitation even though the mainland 

headlands are more than 24 miles apart. (Figure 56) In such cases the 

closing lines will run from the mainland, from island to island, and across 

to the opposite mainland, so long as the segments do not total more than 

24 miles. 

Figure 56. Multiple mouths to a juridical bay. The multiple mouths 

formed by these screening islands total less than 24 miles although the 

mainland headlands are more than 24 miles apart. 

What once may have been in doubt but now is clear is that the semicircle 

drawn from the midpoint of the mouth of the indentation may intersect 

land so long as additional water pockets are available to offset the area of 

land that falls within that semicircle. Early graphic examples of how the test 

is applied tended to show a semicircle that never crossed land. See, for 

example, 1 Shalowitz, supra, at 37 figure 4. Other geographers have used 

examples in which the semicircle crosses the interior coastline on occasion. 

See, for example, Pearcy, supra, at 7 figure b; Beazley, supra, at 13 figure 2b; 

and Hodgson, Special Circumstances, supra, at 5 figure 1. O’Connell correctly 

points out that nothing in Article 7 requires that the circumference of the 

semicircle always lie in the water. 1 O’Connell, supra, at 396. 
256 Shore and Sea Boundaries 

This then is how the semicircle test has been applied by the Supreme 

Court and its masters. It is a minimum test, to be applied after an 

indentation has qualified under the more subjective criteria of Article 7(2). 

Its purpose is to measure a given indentation and not every subsidiary 

feature that might be reached by following the low-water line or moving 

inland to the limit of tidal effect. Whether an adjacent bay or cove is 

included in the area measurement will depend on the nature of the passage 

connecting the water bodies.206 However, islands will be ignored for that 

determination as they are for measuring water area. Finally, islands that 

create multiple mouths to the indentation may reduce the interior area 

required to meet the test. 

The federal government has attempted to employ these principles in 

applying the semicircle test to innumerable indentations along the coast of 

the United States.207 Although it is an objective test, its application involves 

a number of subjective determinations and technical calculations.208 

Headlands and Natural Entrance Points 

Article 7(3) of the 1958 Convention describes a bay as the area lying 

within a line joining “natural entrance points.” But no additional guidance 

is provided to assist in the identification of such points. Actually locating 

the termini of a bay closing line is often the most difficult problem 

associated with applying the principles of Article 7. 

Professor Prescott notes that the process of determining a proper closing 

line involves three separate issues. “First, it is necessary to select the natural 

entrance points to the bay, which are specifically mentioned in Article 10 [of 

the 1982 Treaty]. Second, it is necessary to choose a particular point on 

those entrance points that will act as termini for the baseline. Third, 

decisions must be made about how to deal with islands in the mouth of the 

bay.”209 We deal with the first and second of those issues here. The third is 

the subject of a separate discussion below. 

Although the literature and judicial decisions do not always distinguish 

between “headlands” and “natural entrance points,” it would seem that the 

delimitation of bay closing lines is aided by such a distinction. Thus, we 

206. Sohn and Gustafson, supra, at 44. 

207. See Coastline Committee Minutes of July 27, 1970; August 3, 1970; August 31, 1970; September 14, 

1970; October 5, 1972; December 17, 1976; October 10, 1979; July 21, 1980; March 17, 1982; April 14, 1982; 

and February 25, 1985. 

208. Unfortunately the mariner may have difficulty determining whether a particular indentation is 

inland water. As O’Connell points out, seamen do not typically possess a planimeter, the basic instrument for 

applying the test. 1 O’Connell, supra, at 408. 

209. Prescott, supra, at 53. Article 10 of the 1982 Law of the Sea Treaty is comparable to Article 7 of the 

1958 Convention on the Territorial Sea and the Contiguous Zone. 

Part Two 257 

will adopt that approach and use the term “headland” to refer to the 

promontory that serves to create the indentation at issue, or gives its waters 

their landlocked character. The term “natural entrance point” will be used 

to refer to the precise point on each headland at which the bay closing line 

meets the low-water line. 

Shalowitz’s definition of “headland” appears to provide the starting 

point for most subsequent analysts who have considered the issue. He 

concluded that a headland is generally “the apex of a salient of the coast; the 

point of maximum extension of a portion of the land into the water; or a 

point on the shore at which there is an appreciable change in the direction 

of the general trend of the coast.”210 The author cautioned, however, that his 

definition “not be interpreted to apply to small protuberances or 

projections in an otherwise straight coastline . . . these protuberances must 

bear a definite relationship to the curvature or waterway whose status is to 

be determined.”211 Shalowitz saw this as logical because the waters of a bay 

are described as “inland,” a term which connotes “within the land.”212 

The headland question arose in United States v. Louisiana. After the 

Supreme Court determined that the whole of East Bay is not inland water 

because the area landward of a line connecting the seawardmost extensions 

of its logical headlands failed to meet the minimum requirements of the 

semicircle test, Louisiana sought recognition of lesser bays within East Bay. 

It happens that East Bay is in the shape of an equilateral triangle, with 

relatively straight coasts. However, each of these coasts is occasionally 

interrupted with a minor protrusion, or bump. The state took the position 

that each such protrusion was the potential headland of an interior bay and 

claimed inland water status for all waters landward of the seawardmost pair 

of bumps that met the semicircle test. The federal government insisted that 

headlands must be sufficiently pronounced so as to enclose landlocked 

waters and that the seawardmost of the state’s alternatives were so 

insubstantial as to fail to meet that requirement. The Supreme Court’s 

special master accepted the federal reasoning and recommended that 

interior closing lines be drawn to headlands that he believed to contribute 

to the landlocked nature of waters within.213 Thus, the headlands must 

210. 1 Shalowitz, supra, at 63-64. 

211. Id. at footnote 77. 

212. Id. at 63 n.75; citing United States v. California, 332 U.S. 19, 30, 34 (1947). 

213. The Supreme Court had already emphasized that Louisiana was not free to construct any line within 

East Bay that happened to meet the semicircle test. In so doing it distinguished fallback lines permitted within 

overlarge bays, as recognized by Article 7(5), on the basis that the latter lines are specifically authorized because 

the existence of a larger bay has been verified while in the former instance the interior bay must stand on its 

own and meet each requirement for juridical bay status. United States v. Louisiana, 394 U.S. at 53-54. 

At this point a caveat is in order. As Shalowitz points out, in common usage the term “headland” implies 

a feature of substantial elevation. However, in the law of the sea context that characteristic is not required. The 

analysis here is two dimensional. 1 Shalowitz, supra, at 63. 
258 Shore and Sea Boundaries 

serve to separate the landlocked waters of an indentation from those of the 

open sea beyond. 

A number of experts have attempted to describe the “natural entrance 

points” to an inland water body. Strohl defines them as “the points at 

which the coastline can most reasonably be said to turn inward to form an 

indentation or bay.”214 Hodgson and Alexander refer to “the point where 

the two dimensional character of a bay . . . is replaced by that of the ‘sea’ or 

‘ocean.’”215 

Although the concept is relatively easy to describe, it is much more 

difficult to apply.216 Prescott notes that “there is no irrefutable argument in 

favor of one rather than another line, and it can be assumed that a state 

would be entitled to select any set of entrance points which still satisfied the 

other conditions of this test.”217 The Convention gives little assistance. As 

one of the Supreme Court’s special masters has opined, “[t]he matter seems 

to be largely subjective and to rest with the adjudicating authority.”218 

To aid in the determination, three objective tests have been developed. 

These are described as (1) the 45-degree test; (2) the bisector of the two 

tangents test; and (3) the shortest distance test.219 Coastal geography will 

dictate which test is appropriate for a given indentation, but the object is 

always to produce a line that “separates the landlocked waters from those 

waters which are not landlocked.”220 The Supreme Court has recognized 

that these objective tests “are helpful in large part because they assist in 

defining what is finally a more subjective concept . . . .”221 

We turn now to a consideration of the various tests used to locate 

natural entrance points. 

214. Strohl, The International Law of Bays 68 (1963). 

215. Hodgson and Alexander, Towards an Objective Analysis of Special Circumstances, Law of the Sea 

Institute Occasional Paper No. 13 (1972) at 10. 

216. A good example is the infamous Thames estuary case. Commentators have suggested that although 

the Court of Appeal accepted the government’s position as to the mouth of the estuary, neither party proposed 

headlands that clearly provided its natural entrance points. Churchill and Lowe, The Law of the Sea 32 (1983). 

217. Prescott, supra, at 53-54. However, it seems clear that in practice, at least in the United States, bay 

closing lines are always drawn so as to enclose the largest area possible under the terms of Article 7. 

218. United States v. Louisiana (Alabama and Mississippi Boundary Cases), Report of the Special Master of 

April 9, 1984, at 19. 

219. United States v. Maine, et al. (Rhode Island/New York), Report of the Special Master of October Term 

1983, at 50 n.39. 

220. Id. at 51 quoting testimony of Dr. Robert Hodgson. 

221. Rhode Island and New York Boundary Case, 469 U.S. 504, 522 n.14 (1985). 

Part Two 259 

The 45-Degree Test 

The 45-degree test has, at least in American practice, become the 

preferred method of locating the headlands and entrance points that 

separate landlocked waters from the open sea. The test was developed by 

Drs. Hodgson and Alexander and is founded on the premise that when the 

general direction of the shoreline is at an angle of more than 45 degrees to 

a potential bay closing line, that coast faces landlocked waters. A shoreline 

with a lesser angle with respect to the closing line faces the open sea, 

indicating that the closing line being tested encloses waters that are not 

landlocked.

222 

The test has the advantage of objectivity in an otherwise most subjective 

inquiry. Beazley has described it as the most satisfactory of the various 

attempts to develop criteria for determining the location of natural entrance 

points.

223 

To apply the test, one first selects the seawardmost pair of potential 

opposing headlands for the indentation under consideration and draws a 

line between them. Lines are then drawn from each of these headlands to 

the next landward headland on its side of the indentation. If the resulting 

angles between the closing line and the two lines drawn to the inland 

headlands are more than 45 degrees, the first headlands chosen are the 

natural entrance points to the bay. If either angle is less than 45 degrees, a 

more landward headland is chosen, a new closing line is drawn, and the 

procedure is repeated until both mainland headlands pass the test.224 

(Figure 57) 

The 45-degree test has been consistently used by the Coastline 

Committee to delimit inland waters along the coasts of the United States 

that affect the outer limit of the territorial sea.225 In some cases these lines 

have been challenged by states seeking more seaward closing lines. And, 

although the Supreme Court and its special masters have not always referred 

222. As the authors explain, the natural entrance points “are the points where the direction of the shore 

changes from one facing on the bay, or other subsidiary features, to one facing on the sea. The primary test for 

determination is based on mathematics/trigonometry; the line of 45 degrees represents the dividing line or the 

mid-line between two lines of opposite direction.” Hodgson and Alexander, supra, at 10. 

223. Beazley, supra, at 16. 

224. The test was discussed, with approval, by the Supreme Court in the Rhode Island and New York 

Boundary Case, 469 U.S. 504, at 522 (1985); and by its special master in his Report of October Term 1983, at 

50 n.39. 

225. Some of the more difficult closing lines that have been located through its application include: one 

on Martha’s Vineyard, Massachusetts (Minutes of January 16, 1974); the northwestern portion of Harrison Bay, 

Alaska (Minutes of October 5, 1972); Konganevik Point, Alaska (Minutes of July 27, 1970); Roller Bay, Alaska 

(Minutes of July 17, 1970); Icy Bay, Alaska (Minutes of August 31, 1970); and Yakutat Bay, Alaska (Minutes of 

May 14, 1974). 
260 Shore and Sea Boundaries 

Figure 57. 45-degree test. The coastline seaward of the line "cd" faces 

open sea; the coastline landward of the line "cd" faces inland water. 

to the test in their conclusions, the author is aware of no instance in which 

a more seaward line has been adopted because landlocked waters were 

found to have been excluded by a line developed with the 45-degree test.226 

The test has also been used to locate the headlands and entrance points 

on screening islands that form multiple mouths to a bay227 and the mouths 

of rivers.228 

226. Louisiana argued strenuously that the 45-degree test should not have been employed to close 

numerous bays in the Mississippi River delta because it was merely a proposal, not a rule of law, and postdated 

the California decision (United States v. California, 381 U.S. 139 (1965), at which time, according to Louisiana, 

the rules must be considered to have been frozen. 

The federal position in the delta was taken from the Coastline Committee’s charts, which had been 

produced with the use of this test (Minutes of December 2, 1970). And, although without referring to the 45-

degree test in his Report, the special master recommended closing lines in each case that conformed to the 45-

degree rule. (Report of July 31, 1974.) 

Again without reference to the test, the master rejected a closing line offered by Louisiana for Atchafalaya 

Bay “because the relation of Mound Point to the coast is such that a line drawn to it would include waters that 

cannot be viewed as ‘landlocked.’” Id. at 53. That conclusion is easily supported by application of the 45-degree 

test. 

More recent masters have acknowledged the use of the test (United States v. Maine, et al. (Rhode Island/New 

York)), Report of the Special Master, at 59, as has the Supreme Court, Rhode Island and New York Boundary Case, 

469 U.S. 504, 522 (1985). 

The federal government has also checked to assure that closing lines meet the 45-degree test before 

stipulating, in litigation, that they constitute bays. (Minutes of October 10, 1979.) 

227. See, for example, Coastline Committee Minutes of April 30, 1981, regarding Timbalier Bay, 

Louisiana; and February 17, 1982, as to Buzzards Bay, Massachusetts. See also, Minutes of March 23, 1982. 

228. For example, the test was used by Mexico and the United States to establish the mouth of the Rio 

Grande River during negotiations that led to a treaty establishing their joint maritime boundary 12 nautical 

miles into the Gulf of Mexico. Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande 

and Colorado Rivers as the International Boundary Between the United States of America and the United 

Mexican States, 23 U.S.T. 373, T.I.A.S. 7313 (1970). 

Part Two 261 

The United States unsuccessfully urged that the test should also be used 

to delimit the entrance to ports. In United States v. California, the federal 

government took the position that the limits of inland waters in ports 

should be determined through the application of the same principles used 

to close bays, including the 45-degree test. The Court’s special master 

disagreed, recommending instead that function should prevail over 

geography for such determinations.229 The means of delimiting ports is 

discussed separately below. 

Although the 45-degree test’s objectivity and acceptability dictate its use 

in a vast majority of geographic situations, even its proponents warned that 

the rare situation may arise in which it should be suspended to avoid 

unreasonable results.230 Hodgson and Alexander give the example of a spit 

extending into a bay that may cause the obvious headlands to fail the test 

despite the fact that the intervening shore faces bayward. In such cases, 

which they describe as isolated, the authors urge that the rule not be 

applied.231 To date, the courts have approved lines constructed through the 

application of the 45-degree test, and have not been prone to find 

exceptional circumstances justifying its suspension. 

The Bisector of the Angle Test 

The Supreme Court has recognized an alternative method of locating 

the terminus of a bay closing line where there are no obvious headlands to 

which the 45-degree test can be applied. The bisector of the angle test is 

employed when the shores facing on the open sea and interior water body 

are joined by a smooth curve, or arc, rather than a pronounced headland. 

In such cases, the experts have long recommended that the entrance point 

be located by determining the general trends of the low-water lines on the 

open coast and inland water body, and bisecting the angle that they form. 

This is done by constructing tangents to the general direction of each 

coast; drawing a line from the point of intersection of those tangents that 

bisects the angle formed by their intersection; and extending that line to the 

low-water mark on shore. That juncture becomes the natural entrance point 

of the inland water body. (Figure 58) 

The method has been recommended by Shalowitz, Hodgson, 

Alexander, Beazley, and Prescott232 and adopted by the Supreme Court233 

229. United States v. California, Report of the Special Master of August 20, 1979, at 9. 

230. Coastline Committee Minutes of July 17, 1970. 

231. Hodgson and Alexander, supra, at 12. 

232. 1 Shalowitz, supra, at 63-64; Hodgson and Alexander, supra, at 10 and 12; Beazley, supra, at 17; and 

Prescott, supra, at 56. 

233. United States v. California, 382 U.S. 448, 451 (1966). 
262 Shore and Sea Boundaries 

Figure 58. Bisector of the angle test. Here the bisector of the angle test is 

applied to establish one entrance point to a juridical bay. 

and its special masters.234 However, the masters have been careful to point 

out that this test is only to be applied when there are no pronounced 

headlands in the vicinity. Louisiana sought to maximize its claim to inland 

waters in East Bay by employing a version of the bisector test to establish a 

headland on Cow Horn Island. Special Master Armstrong concluded that 

the technique was “entirely inappropriate in the physical situation, as there 

are pronounced headlands in the vicinity.”235 

The bisector of the angle test is an alternative. It will provide an 

entrance point where no pronounced headland is available, but is not to be 

employed otherwise. 

The Shortest Distance Test 

A third alternative means of determining headlands is required when an 

indentation is formed by a distinct headland on one side but has neither a 

234. United States v. California, Report of the Special Master of October Term 1950, at 7 and United States 

v. Maine, et al. (Rhode Island/New York), Report of the Special Master of October Term 1983, at 50-51, citing 

Hodgson and Alexander and Beazley). 

235. United States v. Louisiana, Report of the Special Master of July 31, 1974, at 32. 

Part Two 263 

similar headland nor a change in the direction of the coastline on the 

opposite shore. Strohl identified this situation in his classic work on bays 

and concluded that “the most logical method for drawing a closing line in 

such a situation would be to locate its origin on the side having the wellmarked entrance point and to locate its terminus at the closest point of land 

on the opposite side.”236 (Figure 59) 

The Coastline Committee has used this method to close Port Clarence, 

Alaska, from Point Spencer “to the closest point on the opposite shore in 

accordance with Strohl’s theory.”237 And it was recognized by Judge 

Hoffman as one of the three objective methods of determining headlands 

in United States v. Maine, et al. (Rhode Island/New York).

238 

Figure 59. Shortest distance test. The shortest distance test is applied to 

determine where internal waters are enclosed by one distinct headland and 

a straight coast opposite. 

The Coastline Committee also applied the shortest distance test to 

delimit the inland waters of San Pedro Bay, the artificial harbor that services 

Los Angeles. Assuming that harbors would be closed according to 

principles used for closing bays, the Committee first attempted to employ 

236. Strohl, The International Law of Bays 68 (1963). 

237. Minutes of September 14, 1970. See also, Minutes of December 17 and December 21, 1976. 

238. Report of the Special Master of October Term 1983, at 51, n.39, citing to Strohl and the Coastline 

Committee’s use of the method. 
264 Shore and Sea Boundaries 

the 45-degree test. The breakwater made an obvious southern entrance to 

the harbor but the opposite coast was generally straight, having no 

promontory that might be adopted as a headland. The Committee 

concluded that the 45-degree test was therefore inapplicable and adopted 

the shortest distance test to close the harbor.239 California objected to the 

resulting line, arguing that areas seaward of it function as part of the port of 

San Pedro. The special master recommended acceptance of the state’s 

position, not because the shortest distance test might not be appropriate for 

bays (although he did note that it had not been sanctioned by the Court, 

Report at 8) but because he concluded that the limits of a harbor should be 

determined by the use of the water area and not solely by geography. The 

United States did not take exception to that recommendation and the 

master’s proposed closing line was implemented in the Court’s final 

decree.240 

The shortest distance test seems an appropriate, and obvious, method of 

closing bays formed by a distinct headland on one side and a straight 

coastline opposite. Sections of the mainland coast within such a line face 

the opposite headland, and logically look across inland waters, while the 

coast beyond the line faces open sea. These fundamental considerations 

used to justify the 45-degree test seem equally applicable here even in the 

absence of features that might be used as headlands on one coast. 

Other Suggested Methods 

O’Connell suggests three possible methods of dealing with a featureless 

coastline on one side of a bay. The first he describes as “a line drawn from 

the headland to the immediately opposite shore.”241 He also suggests a 

24-mile line and the line of the general direction of the coast. Id. Each 

presents difficulties. 

A line constructed from the obvious headland to the immediate 

opposite shore might be the shortest line possible, but O’Connell’s 

comments make clear that he does not consider his proposal to be limited 

to the shortest line. He notes, for example, that the suggestion does not 

dictate the location of the terminus on the featureless shore and indicates 

only that the line might be drawn at right angles to the general direction of 

the bay. 

The arbitrary use of a 24-mile line seems so obviously inappropriate as 

to have been unworthy of inclusion. Although 24 miles was chosen as the 

maximum length of a bay closing line, there is no suggestion in the 

239. Minutes of December 17 and December 21, 1976. 

240. United States v. California, Report of the Special Master of August 20, 1979, at 9 and 449 U.S. 408 (1981). 

241. 1 O’Connell, supra, at 406. 

Part Two 265 

Convention that it might be employed to determine the headlands of a bay. 

O’Connell notes himself that “the twenty-four mile rule is subordinate to 

the definition of bay and is not in itself a qualification for an indentation to 

be a bay.” Id. Clearly, arbitrarily drawn 24-mile lines could enclose open 

seas as well as inland waters.242 

A closing line following the general direction of the coast is subject to 

identical objection. Each method almost guarantees that waters will be 

enclosed that are not landlocked. Although the length of the line would 

presumably be limited by the minimum requirements of the semicircle test, 

to make that the only limitation would be to elevate that test to the sole 

factor for determining “landlockedness” rather than a minimum 

requirement as intended and recognized by the Supreme Court. 

The first of O’Connell’s proposals may be appropriate in limited 

circumstances. The second and third would appear to violate the seminal 

requirement that an indentation be landlocked. 

Beazley suggests that a line can be drawn from the accepted headland to 

a point on the featureless coast opposite such that the angle between that 

line and the landward portion of the coast is more than 45 degrees.243 The 

proposal is novel, and is not known to have been employed anywhere, but 

can certainly be defended with the same logic used to support the 45-degree 

test and will, in most if not all cases, result in a more seaward closing line 

than will the shortest distance test. 

Prescott proposes an alternative that seems especially well suited to 

situations in which a “V”-shaped bay is formed by a single promontory and 

a long, straight coast opposite. He opines that “[o]ne reasonable approach 

to this problem would be to measure the distance between the natural 

entrance point and the position on the coast where the headland merges 

with the smooth coast. The arbitrary terminus could be fixed an equal 

distance along the smooth coast . . . .”244 Although we are unaware of an 

instance in which this method has been employed, it seems entirely 

appropriate and would appear to produce a line that encloses landlocked 

waters while excluding open seas. 

As may be apparent, the possibilities for producing formulae for 

headland determination seem to be limited only by the number of potential 

geographic configurations available for consideration. And that, of course, 

is practically infinite. Nevertheless, the 45-degree test will provide a 

242. The use of 24-mile lines to limit inland waters within overlarge bays is not comparable. Although it 

is not required that such lines be anchored on interior headlands, that is because the entire indentation has 

already been identified as landlocked to its most seaward headlands. 

243. Beazley, supra, at 17. 

244. Prescott, supra, at 54 and 56. 
266 Shore and Sea Boundaries 

solution in a majority of cases. Most others will be resolved by the bisector 

of the angle or the shortest distance test. The small percentage that seem 

inappropriate for any of these methods will be dealt with on a case-by-case 

basis with the help of geographers who understand the objective of 

distinguishing landlocked waters from open seas. 

Headland Determination in Double-Headed Bays 

Adjacent bays along a deeply indented coast may present a geographic 

situation in which none of the previously described methods for 

determining entrance points seems satisfactory. Geographers have 

denominated this feature the “double-headed bay.” It is typically 

characterized by a single promontory that separates adjacent indentations. 

When such a promontory does not extend as far seaward as the non-shared 

headlands, applications of the already discussed tests would dictate its use 

as the shared headland of two separate bays. Yet commentators have felt 

that in some such cases that result excludes more seaward waters that are 

landlocked. In that instance, a line is drawn between the two extreme 

headlands, closing both indentations as a single bay without reference to 

the central, common headland.245 

Southern Harrison Bay, Alaska, provides a good example and so far as 

we know is the only double-headed bay whose status has been considered 

by the courts. It has obvious headlands on the east and west but is divided 

by a bulge in the middle that might be considered a separate headland for 

two smaller adjacent bays, or ignored, resulting in the formation of a single 

larger bay. The United States urged the former approach in United States v. 

Alaska, Number 84 Original, contending that the interior bulge prevents 

waters seaward of it from being “landlocked.” Alaska argued the contrary. 

The parties agreed that the waters enclosed by the state’s proposed closing 

line meet the semicircle test.246 (Figure 60) 

The state then went on to test “landlockedness” through the traditional 

methods for evaluating individual bays. Its witness, Dr. Prescott, calculated 

“depth of penetration” by three separate methods, each time measuring into 

the deepest of the adjacent admitted bays. The United States objected, 

contending that using the smaller subsidiary bays in that fashion shed no 

light on the real question, whether the waters seaward of the central bulge 

were landlocked. 

245. Hodgson, Toward a More Objective Analysis, supra, at 12. 

246. The state argued that this was enough, that any body meeting that test is ipso facto an Article 7 bay. 

The United States and special master disagreed with that interpretation, Report at 199, as the Supreme Court 

had twice before. United States v. Louisiana, 394 U.S. 11 (1969) and United States v. Maine (Rhode Island and 

New York Boundary Case), 469 U.S. 504 (1985). 

Part Two 267 

Figure 60. Southern Harrison Bay, Alaska. The state and federal contentions 

are shown for this double-headed bay ruled to be a single identation by the 

Supreme Court's special master. (Based on NOAA Chart 16004) 

Nevertheless, relying on Dr. Prescott’s analysis and comparisons with 

other bays, the special master concluded that the entirety of south Harrison 

Bay is landlocked. Report at 226. The United States did not take 

exception.247 

Clearly this procedure represents a most subjective deviation from the 

primary methods discussed above. As such, it may invite those interested in 

expanding the limits of inland waters to seek its application in 

inappropriate circumstances. Nevertheless, it is thought that the limited 

number of situations in which it may be even arguably applicable 

minimizes the likelihood of such mischief.248 

Artificial Headlands 

Article 7(3) of the 1958 Convention refers to the “natural entrance 

points” of a juridical bay. This use of the word “natural” has caused at least 

247. The federal Coastline Committee has since amended the official charts of the United States to reflect 

the master’s recommendation. Minutes of December 17, 1997. 

248. The Coastline Committee closed Pamlico Sound, on the Atlantic coast, as a double-headed bay. 

Minutes of December 7, 1970. Other areas, including Shelikof/Gilmer Bays and Tenakee Inlet/Freshwater Bay (all 

in Alaska) have been considered as potential double-headed bays and rejected. Minutes of September 20, 1971. 
268 Shore and Sea Boundaries 

two commentators to ask, albeit rhetorically, whether international law 

requires that the headlands to bays be naturally formed, as islands and lowtide elevations must be, if they are to have boundary consequences. 

Beazley reports that “[t]here is reason to believe that the insertion of this 

adjective was intended to exclude the use of ‘artificial’ entrance points.”249 

He then goes on to suggest that the court’s analysis in the Estuary Radio case 

has precluded that interpretation, at least in the United Kingdom. Id. 

According to Hodgson, “[t]he concept of ‘natural’ entrance points does not 

necessarily require that the points be, in effect, created by natural forces or 

processes. Rather, the points are those at which the nature of a bay is first 

encountered.”250 He went on to explain that “under certain conditions, 

manmade points, e.g., jetties, breakwaters, etc., could be utilized.”251 

Experts testifying before the special master in United States v. Maine, et 

al. (Rhode Island/New York) accepted man-made harborworks as potential 

termini of bay closing lines.252 However, the particular harborwork under 

consideration there, as a potential entrance point to the alleged inland 

waters of Block Island Sound, was rejected by the master, not because it was 

artificial, but because a line drawn to it would have enclosed waters that do 

not constitute an “indentation into the coast.”253 In so doing, the master 

found it unnecessary to decide whether artificial harborworks might ever be 

used as headlands to a bay. 

Nevertheless, the question would seem to have been conclusively 

resolved by the Supreme Court in United States v. Louisiana, Number 9 

Original, and by implication in United States v. California, Number 5 

Original. Bays formed by the various artificial extensions of Mississippi 

River passes at the southern tip of the delta are productive areas of 

petroleum production and presented hotly contested issues in the litigation. 

For its part, Louisiana argued that these artificial extensions could not 

qualify as “natural” entrance points and were, in fact, part of the river and 

not the bays. The state pointed out that these jetties had not been employed 

in constructing the Chapman Line, a preliminary description of the 

Louisiana coast prepared for use in the litigation prior to the Supreme 

249. Beazley, supra, at 16. 

250. Hodgson, Objective Analysis, supra, at 20. 

251. Id. 

252. Jean Gottman specifically opined that Article 8 of the Convention allows closing lines to be drawn 

to harborworks, transcript of January 12, 1982, at 55, 69-70, and Robert Smith agreed that such use was not 

inconsistent with the Convention, transcript of November 10, 1981, at 130. See Report of the Special Master, 

at 58 n.45. 

253. In so doing, the master specifically concurred with the Baseline Committee, which had rejected a 

Block Island Sound closing line for the same reasons. Report of the Special Master, at 59. 

Part Two 269 

Court’s adoption of the 1958 Convention’s principles for Submerged Lands 

Act purposes.254 

Dr. Hodgson, testifying for the United States, stated that the artificial 

passes of the delta were indeed headlands of indentations into the coast. 

However, it would appear that by the time of the special master 

proceedings, the issue had already been resolved, at least by implication, by 

the Supreme Court. In its 1969 opinion in the case, the Court considered 

the juridical status of the entirety of East Bay. In so doing it recognized the 

tips of the artificial jetties as the “seawardmost headlands” of the feature,255 

but went on to conclude that East Bay did not qualify as a bay because of its 

failure to meet the semicircle test. The special master interpreted this 

analysis, properly it would seem, to suggest that in all respects other than 

the semicircle test, East Bay would qualify under the Convention’s 

criteria.256 That conclusion is consistent only with a determination that the 

artificial harborworks being discussed would qualify as headlands to the 

juridical bay. 

San Diego Bay presents a similar circumstance. Although the western 

headland to that indentation is the massive natural promontory known as 

Point Loma, its eastern entrance is an artificial, and insubstantial, jetty 

extending seaward from the mainland. (Figure 61) The Supreme Court has 

decreed that “[t]he inland waters of San Diego Bay are those enclosed by a 

straight line from the seaward end of Point Loma . . . to the point at which 

the line of mean lower low water intersects with the southern end of the 

entire Zuniga jetty.”257 

That decree followed special master proceedings before Judge Arraj in 

which the United States had argued that because the jetty did not extend 

above water for its entire length, it should not be considered a headland 

beyond the portion that did. The master recommended that the entire jetty 

be treated as a headland. The United States did not take exception to that 

recommendation, and the decree quoted above was entered as part of a 

description of the California coast line.258 Sohn and Gustafson cite other 

254. In fact, the Chapman Line was drawn using pre-Convention principles and its closing lines were not 

ultimately used for any portion of the Louisiana coast except where they did conform to the later-adopted 

principles or were the subject of a stipulation between the parties, as in the case of Chandeleur Sound. 

255. United States v. Louisiana, 394 U.S. 11, 53-54 (1969). 

256. Report of July 31, 1974, at 29. 

257. United States v. California, 449 U.S. 408 (1981). 

258. Although it might be argued that San Diego Bay is in fact a port, and not subject to the closure rules 

of Article 7, the parties did not litigate the question on that theory. Clearly its entrance was being treated as a 

bay closing line, as referred to by the master (Report of August 20, 1979, at 14) and the Court (United States v. 

California, 447 U.S. 1, 3 (1980)), not merely as the entrance to a harbor, as was the case at San Pedro. 
270 Shore and Sea Boundaries 

Figure 61. San Diego Bay, California, with closing line from Point Loma to 

Zuniga jetty. 

California examples, arrived at by agreement but effectuated through Court 

decree, in which jetties serve as headlands to bays.259 

The Coastline Committee has employed artificial harborworks as 

headlands to bays. One example is in the area of Fisher Island, Florida, 

where a breakwater was determined to be a headland of Biscayne Bay.260 

The matter would appear to be resolved. The reference to “natural 

entrance points” in Article 7 has not been read to mean “formed by nature” 

as has the term “naturally formed” in Articles 10 and 11. Rather, it is 

understood to refer to the feature that “naturally” forms the indentation, or 

gives the waters within their landlocked character. A number of bays in the 

United States have been recognized by the government and the Supreme 

Court to have artificial headlands. 

259. Sohn and Gustafson, The Law of the Sea, supra, at 45. Citing United States v. California, 432 U.S. 40 

(1977) in which the closing lines of Humboldt Bay, Port Hueneme, the Santa Ana River, and Agua Hedionda 

Lagoon are described as running from “the seaward ends of the jetties located at their mouths.” 

260. Minutes of December 2, 1970. See Minutes of August 3, 1970, and November 18, 1970, for 

additional examples. 

Part Two 271 

Islands as Headlands 

Bays are indentations into the mainland. As such, one would expect 

that the headlands of a bay will be promontories of the mainland coast. As 

the Supreme Court has said, “the general understanding has been — and 

under the Convention certainly remains — that bays are indentations in the 

mainland, and that islands off the shore are not headlands but at the most 

create multiple mouths to the bay.”261 Nevertheless, situations exist in 

which it has been considered unreasonable to exclude a land form from 

consideration as a headland simply because it is technically an island under 

the definitions of the Convention. 

The General Proposition 

Article 10 of the Convention on the Territorial Sea and the Contiguous 

Zone defines an island as “a naturally formed area of land, surrounded by 

water, which is above water at high tide.” It is not uncommon to find a 

portion of the coastline that is composed of land forms that are surrounded 

by water at high tide, and are therefore technically islands and not available 

for consideration as headlands under a strict interpretation of the 

Convention. Yet such islands may be so related to each other and to the true 

mainland that they are thought of as part of the mainland rather than as 

offshore features. The distinction may be critical in determining whether a 

juridical bay exists in the vicinity. If islands, the features may not serve as 

headlands to a bay. If mainland, they may. The area of inland water may 

be greatly expanded in the former situation. 

A number of publicists have considered the issue. Samuel W. Boggs 

recognized that “some islands must be treated as if they were part of the 

mainland. The size of the island, however, cannot in itself serve as a 

criterion, as it must be considered in relationship to its shape, orientation 

and distance from the mainland.”262 In one instance, Boggs suggested that 

an island should be considered part of the mainland if the water area 

separating it from the true mainland were less than the area of the island 

itself.263 Etzel Pearcy, Boggs’ successor as geographer at the Department of 

State, acknowledged the problem after the Convention was negotiated, 

261. United States v. Louisiana, supra, 394 U.S. at 62. 

262. Boggs, Delimitation of Seaward Areas Under National Jurisdiction, 45 Am. J. Int’l L. 240, 258 (1951). 

263. Id. This method has been considered most appropriate where an island of some size parallels the 

mainland coast. As Pearcy points out, the principle has not been generally adopted but has probably been 

made less important through the implementation of straight baseline systems under Article 4 of the 

Convention. Pearcy, Geographical Aspects of the Law of the Sea, 49 Annals of the Association of American 

Geographers 1 (1959). 
272 Shore and Sea Boundaries 

writing that “[i]slands close to the shore may create some unique problems. 

They may be near, separated from the mainland by so little water that for all 

practical purposes the coast of the island is identified as that of the 

mainland.”264 He gave as examples: Bubiyan in the Persian Gulf off the 

shore of Kuwait; and Tierra del Fuego, off the tip of South America. 

Aaron Shalowitz, while involved in efforts to establish a federal position 

for coast line delimitation for United States v. Louisiana, opined that “[t]he 

coast line should not depart from the mainland to embrace offshore 

islands, except where such islands either form a portico to the mainland and 

are so situated that the waters between them and the mainland are 

sufficiently enclosed to constitute inland waters,265 or they form an integral 

part of the land form.”266 

Yet another State Department geographer revisited the issue in 1973. 

Robert Hodgson wrote that “[t]o be used as headlands . . . [islands] also 

should form a natural extension of the two dimensional coastline 

formation as viewed on a nautical chart.”267 Hodgson later described such 

islands as those which, regardless of size, are so situated as to be linked 

geographically to the land.”268 

O’Connell has put it slightly differently, saying that “[w]hen there is an 

island or drying rock which forms the obvious turning point of bay and 

coast, it is logical that it should be used as the point of departure [i.e., a 

headland or entrance point], and not as an island within the mouth, 

provided it is sufficiently closely linked with the mainland so as not to have 

a ‘mouth’ to the bay intermediate between it and the mainland.”269 

Each of these experts recognized that in limited circumstances islands 

might be so closely related to the mainland as to justify their treatment as 

part of it, thereby creating potential legal significance not generally available 

to islands such as their use as headlands to a bay.270 It is not, therefore, 

264. Pearcy1959, supra, at 9. 

265. The situation is now covered by Article 4 on straight baselines. 

266. Memorandum of April 18, 1961, excerpted in 1 Shalowitz, supra, at 161. This suggestion was later 

quoted by the Supreme Court in its consideration of the issue. United States v. Louisiana, supra, 394 U.S. at 66. 

267. Hodgson, Islands: Normal and Special Circumstances 40 (1973). 

268. Id. at 53. 

269. 1 O’Connell, supra, at 413. O’Connell’s concluding proviso suggests that one factor in determining 

the island or mainland status of a feature will be the nature of the water area separating it from the true 

mainland: Is it large enough to be considered a separate “mouth” to the indentation? The mere existence of a 

waterway does not, however, preclude mainland status. The Supreme Court has said much the same thing in 

noting “[t]hat the area of a bay is delimited by the ‘low-water mark around the shore’ does not necessarily mean 

that the low-water mark must be continuous.” United States v. Louisiana, supra, 394 U.S. at 61. 

270. It bears repeating that this discussion cannot be used to justify an argument that true islands may, 

in conjunction with the mainland, create inland waters. That approach may be appropriate under Article 4 of 

the Convention, but not Article 7. United States v. Louisiana, supra, at 67. For a contrary approach, see Prescott, 

supra, at 57 and 59. 

Part Two 273 

surprising that the Supreme Court took a similar approach when presented 

with the issue. 

The question first arose in United States v. Louisiana because of the nature 

of the Mississippi River delta. Since the delta is composed of marshland, 

crisscrossed by waterways, what uplands exist are surrounded by water at 

high-water datum and, under the Convention, are technically islands. 

(Figure 62) As such, under generally applicable principles, an indentation 

formed by two or more of these islands is not technically a bay because it is 

not an indentation into the mainland. 

Figure 62. Saint Bernard Peninsula, Louisiana, near the western end of 

Mississippi Sound. This is typical of the Mississippi River delta, treated as 

mainland although technically an island archipelago. 

(Based on NOAA Chart 11371) 

Neither party took the extreme position that none of these islands 

should be considered part of the mainland, but there was great 

disagreement on which formations should be treated as such. As the 

Supreme Court noted in a later decision, “[t]he Convention addresses the 

problems created by islands located at the mouth of a bay . . . but does not 
274 Shore and Sea Boundaries 

address the analytically different problem whether islands may be treated as 

part of the mainland to form an indentation.”271 

The Court acknowledged that “[i]n most instances and on most coasts 

it is no doubt true that islands would play that restricted role in the 

delimitation of bays [i.e., forming multiple mouths]. But much of the 

Louisiana coast does not fit the usual mold. It is marshy, insubstantial, 

riddled with canals and other waterways, and in places consists of 

numerous small clumps of land which are entirely surrounded by water and 

therefore technically islands.”272 With respect to the typical marshland of 

the St. Bernard peninsula, the Court concluded that although the portions 

of sea marsh were surrounded by water, they were not “true” islands. Id. at 63. 

The Court then reviewed many of the authorities discussed above, 

determined that although “the area of a bay is delimited by the ‘low-water 

mark around the shore’” that does not necessarily mean “that the low-water 

mark must be continuous.” Id. at 61. Citing Pearcy, the Court concluded 

that “islands may be so closely assimilated to the mainland as to be part of 

it and in such cases an island may form the headland of a bay.”273 

This the Court characterized as a “common-sense” approach to 

application of the Convention’s principles, id. at 64, and concluded that it 

could be applied whether one were dealing with a single island or a group 

of islands adjacent to the coast.274 

The greater problem, of course, is determining which insular formations 

should be treated as part of the mainland. On this the Court attempted to 

give some objective guidance. Relying, to some extent, on the publicists 

discussed above, the Court concluded that “the question whether a 

particular island is to be treated as part of the mainland would depend on 

such factors as its size, its distance from the mainland, the depth and utility 

of the intervening waters, the shape of the island, and its relationship to the 

configuration or curvature of the coast.”275 

At the same time, the Court was careful to explain that “the general 

understanding has been – and under the Convention certainly remains – 

271. United States v. Maine, et al. (Rhode Island and New York Boundary Case), 469 U.S. 504, 517 (1985). 

272. United States v. Louisiana, supra, 394 U.S. at 62-63. 

273. Id. at 65 n.85; citing Pearcy, Geographical Aspects of the Law of the Sea, supra, at 9. Clearly the “lowwater line” of a bay will not be continuous in numerous instances unrelated to the islands problem. Many 

bays have rivers running into them and that interruption in the low-water line cannot be said to detract from 

the body’s status as a bay. The Court was dealing here with an entirely different problem, that being the 

disruption of the low-water line by a waterway that returned to the Gulf of Mexico, thereby creating an island 

of what would normally be considered mainland. 

274. Id. at 64. See also, United States v. Maine, et al., 469 U.S. 504, 517 (1985). 

275. United States v. Louisiana, supra, 394 U.S. at 66. To this list the Court appended the note “[t]his 

enumeration is intended to be illustrative rather than exhaustive.” Id. at n.86. See also, id. at 65. 

Part Two 275 

that bays are indentations in the mainland, and that islands off the shore are 

not headlands but at the most create multiple mouths to the bay.”276 The 

Court also cautioned that “[o]ur discussion of these authorities should not 

be taken as suggesting that, under the Convention on the Territorial Sea and 

the Contiguous Zone, every Mississippi River delta mudlump or other 

insular formation is part of the coast.”277 At the same time, the Court added 

another factor to be considered in evaluating the status of a particular 

formation, saying “[w]e do believe, however, that the origin of the islands 

and their resultant connection with the shore is one consideration relevant 

to the determination of whether they are so closely tied to the mainland as 

realistically to be considered part of it.” Id. 

The Court’s Factors 

Neither political geographers nor the Court and its masters have written 

much to explain how the just listed factors should be applied to determine 

whether a particular feature is an island or mainland for headland selection 

purposes. Nevertheless, it is useful to review what is available before 

turning to examples of their application. 

SIZE. The first factor listed by the Court is the “size” of the feature being 

considered for mainland status. Unfortunately there is no context to 

indicate whether it is a larger feature that is more likely to qualify or a 

smaller one. The Court seems to have adopted that criterion from Boggs, a 

Department of State geographer. United States v. Louisiana, 394 U.S. 11, at 

65 n.85 (1969). Two of Boggs’ successors suggest that a smaller feature is 

more properly considered part of the mainland, writing that “under normal 

conditions, the islands used as headlands will be relatively small so as not 

to dwarf the true proportion of the original bay feature and, hence, change 

its entire character.” Hodgson and Alexander, Islands: Normal and Special 

Circumstances, supra, at 40. However logical Hodgson’s reasoning at the 

time, subsequent adjudications suggest that size has played little, if any, role 

in the determination. Small mudlumps along the Mississippi River passes 

have been rejected for mainland status. Some larger features have been 

treated as part of the Louisiana mainland, while others have not. As to 

“dwarfing the true proportion of the original bay,” the Court’s 

determination that Long Island is part of the mainland turns the concept on 

its head. Long Island is not only enormous, it forms an indentation that 

would not even exist in its absence. Size alone does not seem to have 

proven a useful criterion. 

276. Id. at 62. See also: United States v. Maine, et al., 469 U.S. 504, 519 (1985) where the proposition is 

reaffirmed by the Court. 

277. 394 U.S. at 65 n.84. 
276 Shore and Sea Boundaries 

DISTANCE FROM THE MAINLAND. Ten years before the Supreme 

Court considered the issue in United States v. Louisiana, then State 

Department Geographer Etzel Pearcy opined that islands might be 

considered part of the mainland when they are “separated from the 

mainland by so little water that for all practical purposes the coast of the 

island is identified as part of the mainland.” Pearcy, supra, at 9. His 

predecessor, Samuel Boggs, had proposed a formula that would base the 

determination on the relative sizes of the island and intervening waters. He 

recommended that lines be drawn tangent to the ends of the island axis that 

relates to the mainland coastal direction. Parallel lines should then be 

constructed from the ends of the island to the mainland enclosing the 

minimum area of water. The water and land areas would then be measured 

and if the island were larger, it would be treated as mainland. Hodgson and 

Alexander, supra, at 53. Hodgson and Alexander agreed that the island’s area 

should exceed the water area, without proposing a formula for making that 

determination. Id. at 40. As Pearcy noted in 1959, no principle had been 

adopted for making such determinations. Pearcy, supra, at 9. That is still true. 

Although numerous “islands” have now been adjudicated as part of the 

mainland or not, we are unaware of any case in which a court or master has 

relied upon a calculation of land to water ratio to support the conclusion. 

DEPTH AND UTILITY OF INTERVENING WATER. It seems apparent 

that when the Court enunciated this principle in 1969 it focused on the 

water that separates the feature in question from the true mainland, 

suggesting that if that water area were a useful navigation channel it would 

prevent the island’s treatment as mainland. The United States urged that 

view in arguing that Long Island, New York, is, true to its name, an island 

and not part of the mainland. United States v. Maine, et al. (Rhode 

Island/New York) , Report of the Special Master, at 40. (Figure 63) The 

government pointed out that the waters separating Long Island from the 

mainland supported substantial commercial navigation and had done so 

from earliest times. Id. The special master nevertheless determined the 

island to be part of the mainland and the Court concurred, rejecting the 

federal exception to the master’s recommendation on the point. In so doing 

the Court stated that its conclusion “is buttressed by the fact that . . . the 

enclosed water is used as one would expect a bay to be used.” That is, ships 

enter Long Island Sound on their way to port. Those merely traversing that 

portion of the coast remain seaward of the island. United States v. Maine, et 

al. (Rhode Island/New York), 469 U.S. 504, 519 (1985). In so reasoning, the 

Court seems to twice deviate from its original approach. 

To begin, we recall that the purpose of this inquiry is to determine 

whether a water body that separates two areas of upland is so insignificant 

that it should be treated as a land bridge itself and the actual uplands 

Part Two 277 

Figure 63. Long Island Sound. (Based on NOAA Chart 13003) 

considered to be one. Nevertheless, the master and the Court used 

navigability to “buttress” their conclusion that a water body should be 

treated as land. Their reasoning suggests that if Long Island were 

surrounded by shallow or narrow waters, not well suited to use by vessel 

traffic, the island would be less closely attached to the mainland. This 

seems to be the opposite of their intent in 1969. Second, two separate water 

bodies are involved in any such analysis. First is the channel that divides 

the mainland and island in question. Second is the embayment that is 

created if the island is accepted as a headland. In the New York case the issue 

was whether Long Island Sound is a juridical bay. It is a bay only if Long 

Island is somewhere “attached” to the mainland to form the southern 

headland. In considering whether a bay exists, the Court focuses, in part, 

on the Sound itself (concluding that it is used like a bay) rather than the 

juncture at which the island might be said to be connected to the actual 

mainland. 

SHAPE AND ORIENTATION. Dr. Hodgson, the State Department 

geographer, took the position that to justify treating an island as mainland, 

its shape and orientation to the actual mainland should be such that the 

intervening waterway takes the form of a channel rather than a bay. He 
278 Shore and Sea Boundaries 

proposed a formula for determining the extent to which a water area would 

be “channel-like,” which involves measuring the distance from island to 

true mainland at both ends of the water area, computing the average width 

by dividing their total length in half, measuring the distance between those 

two lines (that is, the length of the intervening waterway), and calculating 

the ratio between the length and width. If the water area were three times 

as long as its average width, he suggested, it was sufficiently “channel-like” 

to justify treatment of the island as part of the mainland. Hodgson, Toward 

a More Objective Analysis, supra, at 17-20. 

The Supreme Court applied this criterion in its analysis of Long Island’s 

relationship with the mainland. Focusing on the narrow separation 

between Long Island and the mainland, the Court described the waterway 

as “narrow and shallow,” with a rapid current which, at least prior to man’s 

intervention, made passage from Long Island Sound, around the western 

end of the island, extremely hazardous. United States v. Maine (Rhode Island 

and New York Boundary Case), supra, at 518. Although Hodgson’s formula 

was not mentioned, the Court’s emphasis on “riverine” character is 

consistent with his recommendation. 

From there, however, the Court returned its focus to the resulting bay, 

Long Island Sound, rather than the channel to be treated as mainland. It 

compared the shape and orientation of the island’s north shore with the 

opposite mainland coast and concluded that “the large pocket of water in 

Long Island Sound is almost completely enclosed by surrounding land.” Id. 

at 519. As discussed above, this seems irrelevant to the sole question before 

the Court, whether Long Island is to be considered part of the mainland. 

That question is answered by an analysis of the water at the western end of 

the island. If it is determined that western Long Island is, for legal purposes, 

attached to the mainland, then the island becomes eligible as a headland to 

a juridical bay known as Long Island Sound. Only then does one ask 

whether the waters of that indentation are “landlocked.” Since the parties 

agreed that a juridical bay exists if Long Island is part of the mainland, we 

must assume that the Court included its discussion of the orientation 

between the 118-mile parallel coasts within the Sound as somehow relevant 

to the issue before the Court, but its relevance is not apparent. 

ORIGIN OF THE LAND FORMS. Although the Court did not mention 

“origin” in its primary list of factors to be considered for mainland status, it 

clearly intended its inclusion. It said, with respect to the Louisiana coast, 

that “the origin of the islands and their resultant connection with the shore 

is one consideration relevant to the determination of whether they are so 

closely tied to the mainland as realistically to be considered part of it.” 

United States v. Louisiana, supra, at 65 n.84. 

Dozens of land forms were at issue in the subsequent Louisiana 

litigation before Special Master Armstrong. In almost every case the state 

Part Two 279 

was contending that the features were part of the mainland and the United 

States argued that they were not. In most cases mainland status would have 

created a bay where none would otherwise have existed (as was also the case 

with Long Island) or would have extended seaward the waters of an already 

acknowledged bay. The parties offered voluminous geologic evidence of 

origin. In the end the master typically concluded that the islands did not 

qualify as mainland, with little explanation. For example, with respect to 

mudlumps claimed by Louisiana to extend the bounds of Bucket Bend Bay, 

Mr. Armstrong said “[a]pplying the test outlined by the Court . . . neither the 

size, distance from the mainland, depth and utility of the intervening 

waters, shape of the low-water elevations, or their relationship to the 

configuration or curvature of the coast indicate that they should be 

assimilated to and treated as part of the mainland.” Report at 37.278 The 

master did acknowledge that the mudlumps’ fluvial origin might bolster 

mainland status if the Court’s other criteria were met. He found that they 

were not. In no instance in the Louisiana case did origin contribute to the 

determination that an island should be treated as part of the mainland. All 

of the master’s recommendations on the issue were adopted by the Court. 

United States v. Louisiana, 420 U.S. 529 (1975). 

Island origin was also considered in two subsequent Supreme Court 

actions. In the Rhode Island and New York Boundary Case the Court noted 

that “Long Island and the adjacent shore also share a common geological 

history, formed by deposits of sediment and rocks brought from the 

mainland by ice sheets that retreated approximately 25,000 years ago.” 469 

U.S. at 519. This statement by the Court makes clear that the “origin” 

element applies to any island being considered for mainland status, not 

just those in the Mississippi River delta for which the exception was 

originally adopted. 

Special Master Maris, in United States v. Florida, Number 52 Original, 

determined that the eastern end of Florida Bay, a water body formed by the 

mainland Everglades on the north and the upper Keys on the south, 

comprised a juridical bay because the upper Keys “constitute realistically an 

extension of the mainland” under the criteria set out in the Louisiana case. 

Report of December 1973, at 39. Judge Maris went on to explain that the 

lower Keys might also be considered a further extension of the mainland, 

producing an even more seaward mouth of Florida Bay, “being basically 

278 . The master explained that “Louisiana has introduced a substantial amount of evidence as to the 

nature and origin of mudlumps, showing that they result from hydraulic forces generated by river action. From 

this the conclusion is urged that they are fluvial in nature, and therefore should be assimilated to the mainland, 

wherever located and whatever their size. This, however, does not necessarily follow. Unless the mudlumps, 

like other islands or low tide elevations, meet the five specific tests of size, distance from the mainland, depth 

and utility of the intervening waters, shape and relationship to the configuration or curvature of the coast, their 

nature and origin is immaterial, although a non-fluvial origin might be a negative factor if all of these tests were 

met.” United States v. Louisiana, Report of the Special Master of July 31, 1974, at 38-39. 
280 Shore and Sea Boundaries 

part of the same partly submerged limestone reef as the upper Keys.” 

However, he concluded that the intervening Moser Channel, a navigable 

waterway of 10- to 15-foot depths, prevents such a conclusion. Id. at 47. 

We note that Judge Maris proposed an arguable extension because of the 

lower Keys’ common origin with the upper Keys, not the actual mainland. 

His mainland determination for the upper Keys does not, apparently, rely 

upon any similarity of geologic origin with the actual mainland. That 

process would seem to expand on the Court’s original proposal. However, 

the Court never had occasion to deal with the question because the parties 

stipulated that there is no juridical bay in eastern Florida Bay and the issue 

became moot. Stipulation of December 11, 1975.279 

The Court’s Five Criteria Provide a Minimum Test 

After listing the five geographic criteria for island assimilation, the 

Supreme Court explained that the list “is intended to be illustrative rather 

than exhaustive.” 394 U.S. at 66 n.86. Special Master Armstrong, in 

applying the test, concluded that the foregoing “appears to be intended to 

leave open the question of whether islands or low-water elevations which 

meet the five suggested specific criteria may nevertheless fail to qualify as 

parts of the mainland rather than to suggest that islands or low-water 

elevations which fail to meet one or more of these specific tests may 

nevertheless be so assimilated.” Report of July 31, 1974, at 37. He followed 

that understanding in evaluating the status of specific features, reasoning that 

“unless the mudlumps, like other islands or low tide elevations, meet the five 

specific tests of size, distance from the mainland, depth and utility of the 

intervening waters, shape, and relationship to the configuration or curvature 

of the coast, their nature and origin is immaterial, although a non-fluvial 

origin might be a negative factor if all of these tests were met.” Id. at 38-39. 

He then concluded that “while the mudlumps here in question might meet 

the last three of these specific tests, they fail to meet the first two, and 

therefore cannot be considered as extensions of the mainland.” Id. at 39. 

Other Considerations 

Litigants have offered a number of other criteria that they believed are 

relevant to island assimilation. They include the following. 

279. Political geographers would probably deny the significance of geologic origin for any coastline 

delimitation. They typically prefer criteria that can be applied by the mariner to a nautical chart so that he can 

determine, with the tools at hand, when he enters a nation’s jurisdiction. Dr. Hodgson has written, for 

example, that an “island must be viewed from the chart representation, and interpretation as to geological or 

historical association should not be considered relevant. The two-dimension representation is the evidence 

available to the mariner and he must rely on these data.” Hodgson, Toward A More Objective Analysis, supra, at 

17. Although reasonable, this concern would seem to be met if the Court continues to treat all of the primary 

criteria as necessary to produce mainland status, as Mr. Armstrong and Judge Maris clearly did, and origin to 

be merely an additional basis for inclusion if the former criteria are met. 

Part Two 281 

CONNECTION TO THE MAINLAND BY BRIDGES. In the Alabama and 

Mississippi Boundary Cases, testing the jurisdictional status of Mississippi 

Sound, the states contended that Dauphin Island should be assimilated to 

the mainland at least in part because it is connected to the mainland by a 

highway bridge. Special Master Armstrong concluded that “the mere fact 

that it is connected to the mainland by a bridge or other artificial structure 

does not standing alone make Dauphin Island a part of the mainland.” 

Report of April 9, 1984, at 13. Nevertheless, the master noted that when 

taken with other factors, the bridge connection might be indicative of 

mainland status. Id. He then purported to test Dauphin Island against the 

Court’s five specific criteria and added some geologic history for good 

measure. He concluded that Dauphin Island should be treated as mainland. 

That analysis supported the master’s finding for the states that 

Mississippi Sound is a juridical bay. In addition, he recommended that the 

Sound be recognized as a historic bay, an alternative basis for the states’ 

claim. The United States took exception to both recommendations. The 

Court adopted the master’s historic water recommendation, making it 

unnecessary to deal with the assimilation issue. 470 U.S. 93 (1985). Thus, 

the case shed no judicial light on the significance of a bridge. 

Long Island is, of course, connected to the mainland by a number of 

bridges. The special master referred to the potential relevance of bridges in 

the Rhode Island and New York Boundary Case. Report of October Term 1983, 

at 39 and 41. He does not, however, seem to have placed any substantial 

reliance on that connection.280 

Finally, the Florida Keys must be considered. All of those primary 

islands from Key West eastward are connected to each other and the 

mainland through a series of bridges and causeways. It is there that a State 

Department geographer, G. Etzel Pearcy, had suggested, without 

explanation, that a juridical bay could be formed by the islands. United 

States v. Louisiana, 394 U.S. at 71-72 n.95 (1969). Nevertheless, not even 

Florida argued that the Keys should be considered part of the mainland. 

The master’s determination that the upper Keys should be assimilated to 

mainland was not based on any contention of the parties and, when the 

issue was returned by the Court to the master for further consideration, the 

parties stipulated that no such juridical bay existed in eastern Florida Bay. 

It would now seem to be established that Pearcy’s suggestion, and the 

Florida example, provide no precedent for future contentions for island 

assimilation based upon the existence of a highway that connects a feature 

to the mainland. 

280. In both instances the masters were referring to Dr. Pearcy’s suggestion that the Florida Keys might be 

considered part of the mainland because of the highway connecting them and the mainland. That opinion 

would seem to be now moot. The Florida coastline has since been litigated and a Supreme Court decree 

entered that precludes that interpretation. 
282 Shore and Sea Boundaries 

PROXIMITY TO INLAND WATERS. It would seem that the essential 

element in assimilating an island to the true mainland is its proximity to 

that “mainland.” But some have suggested that because inland waters, such 

as bays, rivers, and ports, are legally treated as mainland, an island is a part 

of the mainland if it is adjacent to inland waters. The suggestion is 

intriguing. 

It first arose in the Louisiana Boundary Case. At least twice Louisiana 

argued that islands lying near, or abutting, inland waters should be 

assimilated to the mainland and become available to serve as bay 

headlands. In the first instance, involving Garden Island and Redfish Bays, 

the parties agreed on the location of a potential bay closing line. However, 

it happened that mudlump islands lay slightly seaward of that line, 

although some distance from the nearest upland of the mainland. 

Louisiana contended that the conceded inland waters of the bay must be 

treated as mainland and the Supreme Court’s five criteria applied to the 

water areas between the mudlumps and conceded closing line.281 As a 

consequence, the state urged, the mudlumps would be assimilated to the 

mainland and the minimum closing line could be moved seaward, using 

the new mudlumps as headlands. The process could continue indefinitely, 

leapfrogging from mudlump to mudlump. 

The United States contended that although the mainland and inland 

waters share certain jurisdictional characteristics, the Court was clearly 

referring to uplands when it used the term mainland in its assimilation 

discussion. 

The special master accepted the federal position, saying that “it seems 

apparent that when in its opinion the Court used the term ‘mainland,’ it 

used it to refer to an existing body of land and not to inland waters. 

Otherwise, a small island lying many miles from the nearest solid land 

might by virtue of its proximity to a bay closing line be considered an 

extension of the mainland.” Report at 42. He explained that “while for 

some purposes inland waters may be considered a part of the mainland, 

they are nevertheless waters and not land, and therefore land bodies lying 

adjacent to them are not assimilable to them as such, but retain their 

characteristics as islands.” Id. 

The master was consistent when Louisiana raised the same theory at 

Caillou Bay. There the Isles Dernieres fringe the mainland coast. On their 

eastern end these barrier islands screen the mouth of an acknowledged 

inland water body, Lake Pelto. From there they run west, beyond the limits 

281. Or, as the special master explained the state position, “Louisiana insists, however, that once the 

closing line conceded by the United States is drawn, the waters within that closing line become inland waters 

and therefore constitute a part of the mainland, and that the relationship of the remaining islands to those 

inland waters therefore is in reality a relationship to the mainland which is sufficient to constitute them an 

extension thereof.” Report of July 31, 1974, at 41. 

Part Two 283 

of Lake Pelto and again parallel the coast west of Caillou Boca. Louisiana 

denominates the body between the mainland and western Isles Dernieres 

“Caillou Bay.” In support of its contention that the western Isles Dernieres 

are assimilated to the mainland, and thereby eligible to form a bay, the state 

pointed out that the Isles Dernieres touched inland waters, which are 

equivalent to mainland and should, therefore, be treated as mainland 

themselves. The master disagreed and Caillou Bay was determined not to 

be inland waters. The Court adopted that recommendation.282 

In the Alabama and Mississippi Boundary Cases, the same special master, 

Mr. Armstrong, was presented with what appears to be the identical issue 

but reached the opposite conclusion. Dauphin Island, in the mouth of 

Mobile Bay, created the controversy. The states argued that Mississippi 

Sound is inland water by virtue of being both an Article 7 juridical bay and 

historic inland water. Their juridical bay argument depended, in part, on a 

determination that Dauphin Island is assimilated to the mainland. The 

master concluded that it is, on the primary ground that it lies adjacent to 

inland water and that “under the Geneva Convention internal waters are to 

be subsumed under the general category of mainland. If this is correct, then 

Dauphin Island, as it adjoins the mainland, is clearly an extension thereof; 

in effect, a peninsula extending westwardly therefrom and separating the 

Gulf of Mexico from Mississippi Sound.” Report of April 9, 1984, at 14. 

(Figure 64) The master relied on language of the Court to explain his 

conclusion, stating that “it would appear as a general rule derived from 

Article 7 Section 3 of the Geneva Convention and the Court’s interpretation 

thereof in United States v. Louisiana, supra, (394 U.S. at p. 55) that where 

islands lie within the mouth of a bay they are to be considered as part of the 

mainland for all purposes.” Report at 16. 

We do not believe that anything in the Convention, its history, or any 

court decision supports the master’s interpretation. Article 7(3) speaks to 

one issue, the means of measuring the area of an indentation to determine 

whether it is larger than a semicircle whose diameter is a line drawn across 

the indentation’s mouth.283 Where islands lie in the entrance to an 

indentation it has several mouths. In the language relied upon by the 

282. The Isles Dernieres have the physical appearance of a series of parallel islands fringing the coast. 

However, to bolster its litigation position Louisiana contended that they should in fact be assimilated to each 

other and are generally understood, in Louisiana, to be a single island. The United States disagreed. In a 

Solomon-like solution the master ruled that whenever the state or its witnesses used the term it would be taken 

to denote the singular. When used by the federal side, it would be understood to be plural. 

283. 7(3) reads, in its entirety, as follows: “[f]or the purpose of measurement, the area of an indentation 

is that lying between the low-water mark around the shore of the indentation and a line joining the low-water 

marks of its natural entrance points. Where, because of the presence of islands, an indentation has more than 

one mouth, the semi-circle shall be drawn on a line as long as the sum of the lengths of the lines across the 

different mouths. Islands within an indentation shall be included as if they were part of the water areas of the 

indentation.” 
284 Shore and Sea Boundaries 

Figure 64. Mobile Bay, Alabama, with closing line through Dauphin Island. 

master to justify assimilating such islands to the mainland, the Court was 

actually responding to Louisiana’s contention that closing lines should be 

drawn to the “seawardmost points on the island” rather than to their 

natural entrance points, helping to form landlocked waters, as would be 

done with mainland headlands. 

The Court rejected Louisiana’s contention, concluding that entrance 

points should be selected on islands in the mouth of a bay as they are on 

the mainland. 394 U.S. at 56. The Court did not even hint that “where 

islands lie within the mouth of a bay they are to be considered as part of the 

mainland for all purposes.” Report at 16. What the Court actually said was 

that in the case of multiple mouths “the lines across the various mouths are 

to be the baselines for all purposes.” 394 U.S. at 55. The Court was 

referring, of course, to the seaward limit of inland “waters,” not mainland 

low-water lines. 

As a fallback from its unsuccessful argument that islands can never be 

used as headlands to bays, the federal government argued in the Louisiana 

Boundary Case that if islands are assimilated to the mainland the water gap 

between any island being treated as the mainland, and the true mainland, 

must be measured and included as part of the total closing line described in 

Article 7(3) for purposes of the 24-mile test (and, presumably, the 

semicircle rule). The Court rejected the federal position reasoning (quite 

logically it would seem) that “[t]hese arguments, however, misconstrue the 

Part Two 285 

theory by which the headland is permitted to be located on the island – that 

the island is so closely aligned with the mainland as realistically to be 

considered an integral part of it. Thus viewed, there is no ‘mouth’ between 

the island and the mainland.” 394 U.S. at 62 n.83. (Figure 65) 

Figure 65. Multiple mouths to a juridical bay. Here the bay's eastern 

headland is on an island assimilated to the mainland and multiple mouths 

are formed by an additional island. 

If all inland water is treated as mainland there would never be a 

“mouth” to any bay. By definition the “mouth” of a bay is the distance 

between the mainland headlands. If the inland water is treated as 

“mainland for all purposes” there is nothing to measure. Clearly the master 

in the Alabama and Mississippi Boundary Cases did not intend such an 

illogical extension of his reasoning but the conclusion appears to be 

inevitable.284 

The United States took exception to the master’s position but, finding 

the area to be a historic bay, the Court found it unnecessary to address the 

juridical bay issues. United States v. Louisiana, 470 U.S. at 93. 

284. Another provision of Article 7(3) establishes that islands are not to be treated as mainland. It 

provides that for purposes of the semicircle test “[i]slands within an indentation shall be included as if they 

were part of the water area of the indentation.” Article 7(3) clearly distinguishes between mainland and water 

area and, for its purpose, treats islands as water. 
286 Shore and Sea Boundaries 

We believe that the better approach is to limit island assimilation to 

instances in which an island is in close proximity to the actual mainland, 

not inland waters. 

Low-Tide Elevations as Headlands 

The foregoing discussion has focused on the potential use of islands as 

headlands to bays. It should be noted that low-tide elevations will be 

treated as islands in similar circumstances.285 The Supreme Court has said 

that “[t]he question arises with respect to low tide elevations as well as 

islands. We think that in this context there can be no distinction between 

them. Article 7(4) provides that the bay-closing line shall be drawn 

‘between the low-water marks of the natural entrances points.’ The line is to 

be drawn at low-tide, and, therefore, if a natural entrance point can be on 

an area of land surrounded by water, it can be on a low-tide elevation as well 

as an island.” 394 U.S. at 60 n.80. The matter is resolved. 

Applications of the Court’s Criteria 

It would seem that the Supreme Court understood that determinations 

of island assimilation to the mainland would be necessarily subjective. At 

the same time that it set out the five criteria discussed above, it noted that 

“[o]ur discussion of these authorities should not be taken as suggesting that, 

under the now controlling Convention on the Territorial Sea and the 

Contiguous Zone, every Mississippi River Delta mudlump or other insular 

formation is a part of the coast.” 394 U.S. at 65 n.84. For purposes of 

determining insular or mainland status in the future it is probably most 

helpful to look at specific examples that have either been agreed upon or 

adjudicated. 

The issue was first dealt with by Special Master Armstrong as he 

considered the proper closing lines across Garden Island/Red Fish and 

Bucket Bend Bays, on the east side of the Mississippi River delta. Each 

indentation has natural headlands on what the parties agreed to be 

extensions of the mainland. However, more seaward of those headlands lie 

examples of the “mudlumps” to which the Court referred. These features 

tend to be small, compared to the nearest mainland and intervening 

waterways. (Figure 66) They appear to be separated from the mainland by 

waters of the Gulf of Mexico, rather than the crisscross of river-like channels 

that characterize the delta itself. Although created by river forces, they do 

285. The Convention defines a low-tide elevation as “a naturally formed area of land which is surrounded 

by and above water at low-tide.” Article 11(1). 

Part Two 287 

Figure 66. Garden Island Bay, Louisiana, near the southeastern corner of 

the Mississippi River delta. Note the mudlumps off the eastern headland. 

(Based on NOAA Chart 11361) 

not appear through the same processes that create the mainland marsh. The 

master concluded that “[a]pplying the test outlined by the Court . . . neither 

the size, distance from the mainland, depth and utility of the intervening 

waters, shape of the low-water elevations, or their relationship to the 

configuration or curvature of the coast indicate that they should be 

assimilated to and treated as a part of the mainland.” Report at 37 [referring 

to Bucket Bend Bay]. And, with reference to Garden Island/Red Fish Bay, 

simply “the islands in question do not bear the requisite relationship to the 

mainland at Southeast Pass to constitute extensions thereof.” Report at 41. 

Although the explanation is terse, the example is useful if island 

assimilation issues arise in the future. 

The next example arose in East Bay, at the southern extreme of the delta. 

The Court had already concluded that the whole of East Bay did not meet 

the semicircle requirement of Article 7 for inland water status. 394 U.S. at 

53. However, the upper portion of East Bay does meet the semicircle test 
288 Shore and Sea Boundaries 

and Louisiana was given the opportunity to prove that it qualified 

separately. To do so, the latter indentation had to meet all requirements of 

Article 7. The United States argued that no “well-marked headlands” 

appeared within the larger East Bay to enclose a reduced area of landlocked 

waters. Louisiana pointed to Cow Horn Island. Although denominated an 

“island,” Cow Horn closely paralleled the eastern headland of East Bay.286 

(Figure 67) It was large in comparison to the adjacent mainland and the 

intervening waterway. And that waterway was narrow and defined by 

parallel banks rather than open water. It had, as Dr. Hodgson thought 

important for such determinations, a “riverine” character. As a 

consequence, the United States conceded that, during its existence, Cow 

Horn Island could be considered part of the adjacent mainland. Report at 

32.287 The “island” was employed as a headland for the lesser bay within 

East Bay while it was in existence. Decree at 422 U.S. 13 (1975). 

Caillou Bay was described by the special master as “one of the most 

difficult areas involved in this litigation.” Report at 49. It is a small water 

feature formed by the mainland on the north and the western end of a 

barrier island chain known as the Isles Dernieres on the south. (Figure 68) 

Louisiana claimed it as inland on at least three grounds. First it was claimed 

as historic waters. That claim was put before the master. He recommended 

against the state, Report at 22, and that recommendation was adopted by 

the Court. 420 U.S. 529 (1975). Next, Louisiana asserted that island fringes 

could form the perimeter of juridical bays. 394 U.S. at 67. The Court itself 

rejected that theory, stating that “Article 7 does not encompass bays formed 

in part by islands which cannot realistically be considered part of the 

mainland.” Id. And, finally, Louisiana contended that the Isles Dernieres 

should indeed be considered part of the mainland and eligible as a 

headland to a juridical bay -- this despite the fact that in its discussion the 

Supreme Court had said that “Louisiana does not contend that any of the 

islands in question is so closely aligned with the mainland as to be deemed 

286. It is important to note that nomenclature does not determine the status of any feature under the 

Convention. A bay, island, or other geographic feature will be tested against the Convention’s criteria as 

applied by the Supreme Court, regardless of what it has been commonly called. 

287. The United States nevertheless argued that Cow Horn Island did not create any distinct headland for 

an internal bay within East Bay. Thus, Cow Horn Island provides an example of more than the island 

assimilation issue. It also stands for the proposition that juridical bay status can be lost as geographic changes 

cause an indentation to fail any of Article 7’s criteria. That, of course, is consistent with the general 

understanding. Both elements of the “coast line,” the low-water line and inland water closing lines, are 

ambulatory. Finally, a formation such as Cow Horn Island should affect measurement for purposes of the 

semicircle test. Article 7(2) requires that to qualify as a bay an indentation must contain water area at least 

equivalent to that of a semicircle whose diameter is the line across the mouth of the indentation. Article 7(3) 

goes on to provide that “[i]slands within an indentation shall be included as if they were part of the water area 

of the indentation.” That being so, such an “island” should first be tested against the assimilation criteria used 

for headlands. If it qualifies for assimilation neither it nor its intervening waterway should be included as water 

area. In such cases, a land form within the indentation may result in a failure to meet the semicircle test and 

prevent juridical bay status. 

Part Two 289 

Figure 67. East Bay, Louisiana. Cow Horn Island was assimilated to the 

mainland and served as the eastern headland of a bay within East Bay until 

the island dropped below mean low water. 

a part of it, and we agree that none of the islands would fit that description.” 

394 U.S. at 67 n.88. 

The western Isles Dernieres are in fact separated from the mainland by 

a waterway that is more like a channel than an open water body. If the 

islands were a single land feature, its relationship with the mainland would 

weigh strongly in favor of assimilation. However, that portion of the chain 

that would have to be treated as a headland is itself composed of a number 

of islands. The gaps among these are substantial, giving the impression that 

they comprise a number of formations rather than a single feature bisected 

by channels. 

The state argued that the position attributed to it by the Court was a 

misunderstanding. Report at 50. Nevertheless, the master pointed out that 
290 Shore and Sea Boundaries 

Figure 68. Caillou Bay, Louisiana. (Based on NOAA Chart 11340) 

the Court “independently reached the [same] conclusion,” id., and the 

Court’s language “appears to require a holding that there is no configuration 

in the area which meets the requirements of a bay . . . .” Id. at 51. 

Interestingly, it appears that but for the Court’s language, the master 

would have recommended assimilation of the western Isles Dernieres to the 

mainland. In what consequently amounts to dicta in his Report (but might 

be useful for future conflicts) he said that “[in] the absence of such a 

holding [by the Court] the Special Master would upon the evidence before 

him be inclined to hold that based upon their size, proximity, 

configuration, orientation and nature these islands would constitute an 

extension of the mainland . . . .” making Caillou Bay a juridical bay.288 The 

state took exception to the master’s recommendation but the Court 

288. To further confuse the matter, the master seemed to base his conclusion, at least in part, on Special 

Master Maris’s Report in United States v. Florida, Number 52 Original, reasoning that his opinion with respect 

to the western Isles Dernieres “would appear to be in accord with the view of the Special Master in the case of 

United States v. Florida, Number 52 Original, in regard to certain of the Florida Keys.” Report of July 31, 1974, 

at 51. Unfortunately the Master’s Report in Louisiana was written before the Supreme Court remanded the 

Florida case and the parties stipulated that the Florida Keys referred to did not form the headland of a juridical 

bay. The Court’s Florida decree reflects that stipulation. 425 U.S. 791 (1976). 

Part Two 291 

overruled all exceptions. 420 U.S. 529 (1975). The western Isles Dernieres 

are not assimilated to the mainland.289 

Louisiana made two more unsuccessful efforts at island assimilation. 

Low-tide elevations west of Point au Fer and on the Shell Keys should, it 

contended, be treated as part of the mainland and as entrance points of 

Atchafalaya Bay. The master disagreed, explaining that “in each case, the 

size and location of the elevations makes it impossible realistically to view 

them as extensions of the mainland.” Report at 52-53. 

The Alabama and Mississippi Boundary Cases produced two assimilation 

questions. Isle au Pitre, at the western end of Mississippi Sound, was said 

to be a mainland headland to a juridical bay. The United States conceded, 

under the criteria set out by the Court in United States v. Louisiana, 394 U.S. 

at 66, that Isle au Pitre may be treated as mainland. Report at ll; 470 U.S. 

96 (1985). The second example is more difficult to understand. There 

Dauphin Island, at the eastern end of Mississippi Sound, was at issue. Again 

the state contended that it should be assimilated to the mainland and, as 

mainland, formed the eastern headland of a juridical bay. Interestingly the 

master applied the traditional geographic tests and concluded that Dauphin 

Island’s proximity to the mainland upland was insufficient to justify 

assimilation, and that a causeway between them did not add enough weight 

to conclude otherwise. However, the master then adopted a legal theory not 

previously considered relevant to the assimilation issue. He noted that 

Dauphin Island is adjacent to the admittedly inland waters of Mobile Bay, 

and then opined that because inland waters are “equivalent to mainland” 

Dauphin Island is clearly in contact with the mainland and becomes 

mainland itself.290 

The legal approach seems suspect. The Court has not treated inland 

water as mainland for Article 7 purposes.291 The United States took 

exception to the master’s recommendation that Mississippi Sound is a 

juridical bay, in part on the basis of the Dauphin Island reasoning. 

However, the Court ruled for the states on the alternative historic waters 

ground and made no determination on the assimilation issue. 470 U.S. 93 

(1985). Given the Convention and Court’s general treatment of inland 

waters we think it unlikely that it will adopt the legal position that any 

289. The mainland just north of the Isles Dernieres is much like the Mississippi delta. It is composed of 

a patchwork of land formations separated by narrow channels. 

290. The master did make reference to the size, shape, and configuration of Dauphin Island, Report at 16-

17. However, his conclusions that the island was “immediately adjacent to the inland waters of Mobile Bay, 

which are part of the mainland,” id., and, for that reason “there are no intervening waters,” id., are clearly critical 

to his determination that Dauphin Island is assimilated to the mainland. 

291. See discussion supra 283-286. Nor did this special master apply the same reasoning when 

adjudicating the Louisiana coast line. Louisiana Boundary Case, Report of July 31, 1974, at 38, 41 and 42. 
292 Shore and Sea Boundaries 

island touching inland waters is automatically assimilated to the mainland, 

if and when that issue arises again. 

In United States v. Florida, Number 52 Original, the special master made 

island assimilation determinations that neither party had urged.292 The 

Florida question arose in what is widely known as Florida Bay, the vast 

water body formed by the Everglades on the north and the Florida Keys on 

the south. Florida did not claim the bay as juridical, under Article 7, but as 

historic inland waters. The master analyzed and rejected the historic bay 

claim but proceeded to consider its eastern portion under Article 7. 

Reviewing the Court’s assimilation criteria in the Louisiana Boundary Case, he 

concluded that “this area is sufficiently enclosed by the mainland and the 

upper Florida Keys, which constitute realistically an extension of the 

mainland, to be regarded as a bay which constitutes inland waters of the 

State.” United States v. Florida, Report of the Special Master of December 

1973, at 39.293 

On its exceptions to that recommendation, the United States argued 

that the navigable gaps between any two upper Keys were too great to admit 

assimilation to the mainland and that the issue had not been argued to the 

master. On the latter basis the Court remanded the issue and Florida 

conceded that the area described by the master is not a juridical bay.294 A 

final decree was entered accordingly. United States v. Florida, 425 U.S. 

791 (1976). 

The question of island assimilation might have arisen in the 

Massachusetts Boundary Case. There the status of Vineyard and Nantucket 

Sounds was at issue. The state might have argued, with respect to the 

former, that the Elizabeth Islands and Martha’s Vineyard should be 

assimilated to the mainland, forming a juridical bay in Vineyard Sound. Or, 

it could have contended that Martha’s Vineyard and Monomoy Island are 

assimilated to the mainland (and, possibly that Nantucket is assimilated to 

Monomoy) creating an Article 7 bay in Nantucket Sound. It did not. The 

parties agreed that Article 7 did not apply and the master agreed that the 

position “is in accord with the authoritative Supreme Court precedent 

interpreting Article 7 . . . [in which it has held that] Article 7 does not 

encompass bays formed in part by islands which cannot realistically be 

292. As noted above, they influenced Special Master Armstrong’s view of a similar issue in Caillou Bay, 

Louisiana, even though he felt ultimately compelled to rule otherwise because of earlier Supreme Court 

language in his case. 

293. The master would have attributed juridical bay status to “the area between the mainland on the 

northwest and the upper Florida Keys on the southeast which lies east of a closing line running southwesterly 

from East Cape of Cape Sable to Knight Key in the Florida Keys, a distance of approximately 24 geographical 

miles.” Report at 39. 

294. Stipulation of September 1971 between Solicitor General Erwin N. Griswold and Attorney General 

Robert L. Shevin, attached to the Master’s Report of December 1973. 

Part Two 293 

considered part of the mainland.” United States v. Maine (Massachusetts), 

Report of the Special Master of October Term 1984, at 9. 

In the Rhode Island and New York Boundary Case the Court had its first 

occasion to apply the criteria for island assimilation which it had set out in 

the Louisiana Boundary Case 16 years earlier.295 The ultimate issue there was 

whether Long Island Sound is a juridical bay, conforming to the 

requirements of Article 7 of the Convention on the Territorial Sea and the 

Contiguous Zone. Experts for both parties agreed that “in the absence of 

Long Island, the curvature of the coast is no more than a ‘mere curvature’ 

and is not an ‘indentation’” as required by the Convention. United States v. 

Maine (Rhode Island and New York Boundary Case), 469 U.S. 504, 514-515 

(1985). (Figure 69) Consequently, for Long Island Sound to qualify as a 

juridical bay, Long Island itself would have to be treated as an extension of 

the mainland. 

Figure 69. New York/Connecticut coastline. Without Long Island, the waters 

of Long Island Sound are not landlocked. (Based on NOAA Chart 13003) 

295. Although the criteria were applied by its special masters in three prior cases, they were disposed of 

in circumstances that obviated the need for the Court’s discussion of the assimilation issue. In Louisiana, the 

Court merely accepted the master’s recommendations on bay closing lines without comment. 420 U.S. 529 

(1975). In United States v. Florida it remanded the juridical bay question and the parties resolved the matter by 

stipulation. 425 U.S. 791 (1976). In the Alabama and Mississippi Boundary Cases the question of Dauphin 

Island’s assimilation to the mainland was made moot when the Court adopted its master’s conclusion that 

Mississippi Sound constitutes historic inland waters. Dauphin Island’s status is irrelevant to that question. The 

Court did not comment on the separate juridical bay basis for the master’s finding. 470 U.S. 93 (1986). 
294 Shore and Sea Boundaries 

Special Master Hoffman heard extensive evidence about the relationship 

between the island and adjacent mainland. He pointed out that “Long 

Island is a large island situated along the coast and at its western end is 

separated from the mainland by only a narrow stretch of water.” Report 

October Term 1983 at 45-46. That narrow stretch is, of course, the East 

River. When the criteria from the Louisiana Boundary Case are applied, the 

East River assimilation seems justified. 

The master noted that the island is “large.” That can hardly be debated. 

Probably more important, it is significantly larger than the East River, which 

separates it from the mainland.296 Second, the intervening waterway is long, 

narrow, and has parallel banks. It is more “riverine” than an open body of 

water, thereby meeting the most critical of the assimilation factors 

recommended by political geographers who have considered the question. 

(Figure 70) Long Island lies only one-half mile from the mainland, 469 

U.S. at 518, a minuscule distance compared to its 118-mile length. The 

Court emphasized that in its original state, the intervening waterway was as 

shallow as 15 to 18 feet, and not conducive to navigation. Id. A common 

geologic history, linking the island to the mainland, was also discussed. 

Report at 44-45 and 469 U.S. at 519. These would seem to be more than 

sufficient justification for assimilating Long Island to the mainland and 

adopting it as the southern headland of a juridical bay known as Long 

Island Sound.297 

The special master reached that conclusion, Report at 45-46, as did the 

Court. 469 U.S. at 519. The Court described its analysis as the “realistic 

approach” to the assimilation question, as intended by the Louisiana 

decision. Id. at 517. 

The federal government’s “Coastline Committee,” the interagency group 

that applies the Convention’s rules to establish the United States’ limits of 

maritime jurisdiction, has often looked at the assimilation questions. Its 

decisions may also be useful in evaluating future situations. For example, it 

concluded that the Seahorse Islands, which screen the mouth of Peard Bay 

on the north slope of Alaska, should be assimilated to each other and a 

separate island between them and the mainland should be assimilated to 

the mainland.298 Kulgurak Island, a short distance east, was also 

296. The “mainland” referred to is mostly Manhattan Island which, although named an island, is 

certainly part of the mainland being separated from the Bronx only by the Harlem River. 

297. Nevertheless, both the master and the Court went on to rely on the bay-like nature of Long Island 

Sound itself as further justification for assimilation. As discussed above, that factor may go beyond what the 

Court intended in 1969 but, in this case, does not appear to produce an improper result. See Report at 45-47 

and 469 U.S. at 519. 

298. The Committee has dealt with adjacent islands just as it has an island and the mainland, 

assimilating them to each other where like circumstances would have justified assimilation to the mainland. 

Although the Court has not spoken to this particular situation, it would seem to be required given the rules for 

mainland assimilation. 

Part Two 295 

Figure 70. East River, New York. The river separates Long Island from the 

mainland to the northwest. 

assimilated. Minutes of July 27, 1970. In considering the Texas coast, the 

Committee concluded that Matagorda Island is assimilated to the 

mainland, as are Padre and Mustang Islands. Minutes of August 17, 1970. 

A small island off North Cape, near Whale Bay, Alaska, was assimilated to 

the mainland because of its configuration, and the depth and breadth of the 

intervening channel. Minutes of September 14, 1970. A small island south 

of the eastern mainland-headland of Narragansett Bay was also assimilated. 

Minutes of November 9, 1970. 

The Committee seriously considered the Long Island example before 

concluding that it should not be assimilated to the mainland. Minutes of 

January 4, 1971. Following the Supreme Court’s decision in the Rhode Island 

and New York Boundary Case, the Committee adopted the Court’s position 

and amended the official United States charts. Minutes of May 28, 1985. 

Kruzof Island was determined to be assimilated to the adjacent Partofshikof 

Island (near Sitka Sound, Alaska), but not with the mainland because the 

channel separating them from the mainland is too broad, deep, and 

important for navigation. Minutes of September 20, 1971. A spoil “island” 

off the coast of Florida, separated from the mainland by a passage of only 

35 feet width, was assimilated to the mainland because of the substantial 

size of the feature and the “narrowness” of the intervening waterway. 
296 Shore and Sea Boundaries 

Minutes of April 25, 1972.299 Finally, the Committee considered a proposal 

by the State of California that a reef and string of islands off its northern 

coast be assimilated to the mainland and treated as the southern headland 

of an indentation that it denominated “Pelican Bay.” The Committee 

rejected the proposal on the formations’ general relationship to the coast 

and the nature of intervening waters. Minutes of December 17, 1976. 

Despite the foregoing “the general understanding has been – and under 

the Convention certainly remains – that bays are indentations in the 

mainland, and that islands off the shore are not headlands but at the most 

create multiple mouths to the bay.” 394 U.S. at 62.300 Nevertheless, 

situations occur in which it would be unreasonable to exclude a land 

formation from mainland status just because it is surrounded by water. The 

Supreme Court has said, quoting Shalowitz, that “with regard to 

determining which islands are part of a land form and which are not, no 

precise standard is possible. Each case must be individually considered 

within the framework of the principal rule.” 394 U.S. at 66 n.85. A 

“common sense approach” will be followed. 469 U.S. at 517.301 

Reviewing the examples already adjudicated, it would seem fair to 

conclude that the nature of the intervening waterway may be the most 

significant of the Court’s criteria. If it is long and narrow, rather than broad, 

assimilation is more likely to be justified. The same is true the larger the 

island in comparison to the breadth of the intervening waterway. The more 

navigable the intervening waters, the less justification for assimilation. 

Common geologic origin has been used to bolster assimilation, but does 

not appear to be a major factor. 

In the case of Long Island, the nature of the water body created by 

assimilation was also considered by the master and the Court as evidence 

that assimilation is appropriate. We are concerned that focus on that area 

of water, rather than the stretch that is ultimately going to be ignored, may 

be inappropriate. 

In sum, the decision will be subjective. The trier of fact will determine, 

as the Supreme Court has suggested, whether islands are “so integrally 

299. This example also makes a separate point. Typically an artificial island is not part of the coast. 

Article 10 of the Convention provides that the territorial sea is measured from an island, but defines island as 

a “naturally formed” area of land. Man-made extensions of the natural coast are, however, treated as part of 

the coast. The question thus becomes, is a spoil bank that is surrounded by water to be treated as an artificial 

island even though its relationship to the mainland is such that, if naturally formed, it would be assimilated? 

The Committee clearly assumed that assimilation is appropriate. The Supreme Court dealt with the issue in 

the Louisiana Boundary Case, where it said that if a spoil bank were surrounded by water at low tide it would 

not be treated as part of the coast line, but if “an extension of the mainland” it would be. The Committee 

obviously interpreted the latter provision to include “constructive” extensions of the mainland under the 

criteria set out later in the same opinion. 394 U.S. at 41 n.48. 

300. Reaffirmed, most recently, at United States v. Maine (Rhode Island and New York Boundary Case), 469 

U.S. 504, 519 (1985). 

301. See also: 4 Whiteman, supra, at 169 and 1 O’Connell, supra, at 413. 

Part Two 297 

related to the mainland that they are realistically parts of the ‘coast’ with the 

meaning of the Convention.” 469 U.S. at 517. 

Islands in the Mouth of a Bay 

Although a juridical bay must be an indentation into the mainland, 

with mainland headlands enclosing landlocked waters, islands in the 

mouth of a bay may help determine which waters are landlocked. The 

mouth of a traditional bay, in the absence of islands, is a line between its 

mainland headlands. Where islands are present, that line may be altered. 

Article 7(3) of the Convention provides that “where, because of the 

presence of islands, an indentation has more than one mouth, the semicircle shall be drawn on a line as long as the sum total of the lengths of the 

lines across the different mouths.”302 As the Supreme Court has recognized, 

“the Commission’s intention was to indicate that the presence of islands at 

the mouth of an indentation tends to link it more closely to the mainland, 

and this consideration may justify some alteration in the ratio between the 

width and the penetration of the indentation.” Louisiana Boundary Case, 

394 U.S. at 56, quoting Commentary of the International Law Commission 2 

Y.B. Int. L. Comm’n 296 (1956). 

The General Proposition 

Islands may create multiple mouths to a bay in three circumstances. 

First, an island or islands may be intersected by a direct line between the 

mainland headlands. Second, an island or group of islands may, although 

not intersected, so clearly affect the nature of the waters both landward and 

seaward, that the gaps between islands should be considered mouths to the 

indentation. Finally, an island may be so closely related to the mainland 

that it should be assimilated to it.303 It may then serve as the “mainland” 

headland. 

INTERSECTED ISLANDS. Islands that lie directly in the mouth of a bay, 

that is, are intersected by the mainland-to-mainland closing line, provide 

the easiest example of multiple mouths. (Figure 71) The mouths are lines 

connecting the natural mainland headlands to headlands on the intersected 

islands and similar lines connecting adjacent islands. The headlands are 

selected just as mainland headlands would be. 394 U.S. at 56. Lines drawn 

to natural entrance points on the islands may exclude some waters that 

302. Although the Article 7(3) reference is to application of the semicircle test , it is understood that the 

lines referred to are separate mouths for all purposes. 

303. This circumstance is also discussed above with respect to headland selection. 
298 Shore and Sea Boundaries 

Figure 71. Multiple mouths to a juridical bay. Multiple mouths to this bay 

are formed by screening islands that are intersected by a straight line 

between mainland headlands. 

would have been enclosed by a direct headland-to-headland closing line, or 

they may include more water area, but their selection is “not optional.” Id. 

at 57 n.77.304 

SCREENING ISLANDS. As the Supreme Court has noted, “Article 7(3) 

contains no requirement that the islands be intersected by a mainland-tomainland closing line; rather it speaks only of multiple mouths ‘because of 

the presence of islands.’” Id. at 59 n.79. “[w]here . . . a string of islands 

covers a large percentage of the distance between the mainland entrance 

points, the openings between the islands are distinct mouths outside of 

which the waters cannot sensibly be called ‘inland.’” Id. at 58. 

The primary question was answered; islands need not be intersected to 

form multiple mouths. But two questions remained to be resolved on a 

case-by-case basis. Those are, what is “a large percentage of the distance 

between the mainland entrance points” and how far seaward or landward 

of the mainland-to-mainland closing line can the islands lie and still 

constitute separate “mouths” to the original indentation? Drs. Hodgson 

and Alexander concluded that “[i]f the islands serve to block more than 

one-half of the opening of a bay, they may be judged to ‘screen’ the mouth 

of the bay from the sea. Since the greater condition, i.e., more than half, of 

304. Louisiana argued, unsuccessfully, that closing lines should be drawn to the “seaward most” points 

on intersected islands, rather than to natural entrance points on the islands. The Court pointed out that just 

as the presence of islands tends to link the landward waters more closely to the mainland, islands also tend to 

further separate more seaward waters from the indentation itself. Id. at 58. 

Part Two 299 

the mouth is represented by islands, it should be considered to be the 

dominant geographic characteristic of the mouth and serve to enclose the 

water within the bay; these islands screen the bay from the sea.”305 

The federal government has followed this position in its delimitation of 

the United States’ coast line. Rhode Island and New York Boundary Case, 

Report of the Special Master, supra, at 54. However, there have been few 

occasions for the Supreme Court or its masters to consider it. Most 

prominent was Rhode Island’s contention that Block Island forms two 

separate mouths to the combined Long Island and Block Island Sounds. 

Apparently ignoring the Supreme Court’s admonition that screening islands 

had to cover a “large percentage” of the opening, the state emphasized that 

mariners had to pass the island to enter the bays and would consider 

themselves landlocked when they had done so. Without reference to the 50 

percent principle, the special master concluded that Block Island does not 

form part of the closing line for several subjective reasons. Id. at 60.306 

Also unanswered is the question – 50 percent of what? Do the islands 

need to “screen” one-half of the distance between the mainland headlands 

or of the total closing using the islands? Logic would seem to suggest the 

latter. If the islands form multiple mouths, the mainland-to-mainland 

closing line becomes irrelevant. The “openings” of the bay are now the gaps 

between islands (and the most landward islands and the mainland). It 

would seem to be the total length of these lines, compared to the length of 

the intervening islands, that establishes the landlocked nature of the 

enclosed waters.307 

It is established that multiple mouths may be created by islands that do 

not lie upon the mainland-to-mainland closing line. (Figure 72) 

Unanswered is the question of how far away may they be located and still 

be said to form multiple mouths to the indentation. Neither the experts nor 

the judicial decisions provide much help. 

The answer may depend, in part, on whether the screening islands lie 

seaward or landward of the mainland closing line.308 In the case of a 

305. Hodgson and Alexander, Toward a More Objective Analysis of Special Circumstances: Bays, Rivers, Coastal 

and Oceanic Archipelagos and Atolls 17 (1972); reiterated at Hodgson, Islands, Normal and Special Circumstances 

40 (1973). See also: Bowett, The Legal Regime of Islands In International Law 31 (1979). 

306. These include: the island’s location “well outside” the actual indentation; lines to the island would 

enclose waters that are not landlocked; and the island is “too far seaward of any mainland-to-mainland closing 

line . . . .” Report at 60. 

307. We refer to the “length” of the islands only for convenience. It would seem that the proper “island 

measurement” for this purpose would be a straight line between its natural entrance points. Many islands 

would be slightly longer than such a line, but their portions extending beyond natural entrance points would 

do nothing to enclose landlocked waters and would seem inappropriate for this measurement. 

308. All political geographers have assumed that screening islands may move bay closing lines seaward of 

what would constitute inland waters in their absence. The Supreme Court has said that the reverse is also true. 

Louisiana Boundary Case, 394 U.S. at 58 and Rhode Island and New York Boundary Case, 469 U.S. at 523. 
300 Shore and Sea Boundaries 

Figure 72. Multiple mouths to a juridical bay. Here multiple mouths are 

formed by screening islands that are seaward of a straight line between 

mainland headlands. 

seaward screen, the logical approach would seem to be to calculate the landto-water ratio as suggested above, i.e., measuring the water gaps and island 

stretches and comparing the two. If there is more land than water, and the 

water crossings do not total more than 24 nautical miles, the islands should 

be considered to create multiple mouths.

309 The combined 50 percent and 

24-mile rules assure that enclosed waters will be landlocked. Islands that 

are so far offshore as to seem inappropriate as candidates to form multiple 

mouths will fail these tests.310 

Screening islands that lie landward of the mainland headlands create a 

different problem. (Figure 73) If they are in the vicinity of the mainlandto-mainland closing line they clearly create multiple mouths (assuming that 

they screen more than 50 percent of the closing). However, it seems 

unreasonable here to insist that they form multiple mouths to the primary 

309. The 24-mile maximum is a separate requirement of the Convention. Article 7(4) provides that “[i]f 

the distance between the low-water marks of the natural entrance points of a bay does not exceed twenty-four 

miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall 

be considered as internal waters.” 

310. Prescott has suggested that “it is uncertain how far inside or outside a bay they can be located before 

this provision does not apply.” The Maritime Political Boundaries of the World, 56 (1985). Shalowitz opined that 

“[t]he best solution would be to consider each case on its merits and apply a rule of reason.” 1 Shalowitz, at 

225. We believe that the combination of the 50 percent and 24-mile principles solves the problem. 

Part Two 301 

Figure 73. Multiple mouths to a juridical bay. Here multiple mouths are 

formed by screening islands that are landward of a direct line between 

mainland headlands. 

indentation, no matter how far inland of the initial closing line, just because 

the 50 percent and 24-mile rules are met. That is so because in this instance 

the waters of the primary indentation, in the absence of islands, would be 

landlocked by the mainland headlands. 

As the Supreme Court has said, islands that form multiple mouths add 

to the landlocked nature of the waters shoreward but, likewise, bolster the 

character of seaward areas as open sea. 394 U.S. at 58. Islands well within 

an indentation would not seem to separate all waters seaward of the 

mainland headlands from the open sea. At most they might be considered 

to form the mouths of subsidiary bays and, as such, have no effect on the 

coast line. 

While there is no readily apparent geographic test for determining how 

far into the bay an island screen might be if it is not to be treated as forming 

multiple mouths, it seems reasonable to suggest that at some distance the 

islands should be ignored and a closing line drawn between the original 

mainland headlands. The ad hoc, “reasonable,” approach, so often 

employed to resolve juridical bay questions, may be the only criterion. 

ISLANDS ASSIMILATED TO THE MAINLAND. The third situation in 

which islands have been said to create multiple mouths to a bay is when 

they are so closely related to the mainland as to be reasonably treated as 
302 Shore and Sea Boundaries 

part of it. Here the same principles come into play as are discussed above 

in the context of headland selection. Land formations completely 

surrounded by water, yet separated from the mainland by only narrow 

channels, may be treated as part of the mainland and are available as 

headlands. They might, of course, affect the location of the closing line. 

They do not technically, however, create multiple mouths because after they 

are determined to be assimilated to the mainland, the water area separating 

them from the mainland is not treated as a mouth, but as land.311 In sum, 

whether or not an island is assimilated to the mainland will be determined 

through application of the criteria set out by the Court in the Louisiana 

Boundary Case, 394 U.S. at 66. If assimilated, it will become a potential 

mainland headland. In that case a multiple mouth will not be created. If 

not assimilated, it will affect the closing line if intersected by the mainlandto-mainland closing line or if part of a substantial screen. 

Screening Islands and the Mainland Termini 

In the classic example, screening islands will produce a series of closing 

lines beginning from a mainland headland, extending to a headland on the 

nearest island, running from island to island, and eventually crossing from 

the last island in the chain to the opposite mainland headland. However, 

the selection of lines connecting the island chain to the mainland 

headlands is complicated if the screening islands continue beyond the 

natural entrance points on the mainland. Dr. Hodgson discussed this 

situation and concluded that “the bay closing-line would not be continued 

along the line of the islands unless they form a part of a straight baseline 

system. The bay-closure line should terminate at the natural headland of 

the bay.” Hodgson, Islands: Normal and Special Circumstances, supra, at 40. It 

turned out, however, that the principle is difficult to employ in some 

instances. For example, when considering the mouth of Buzzards Bay, 

Massachusetts, the federal Baseline Committee concluded that the Elizabeth 

Islands screen the bay, forming multiple mouths, but that when they are 

used it is no longer logical to use the original mainland headlands and new 

headlands were employed. (Figure 74) The Committee decided as a matter 

of policy that “screening islands may be used to establish new [mainland] 

headlands for a bay (i.e., it is not necessary for the closing line to return to 

the original headlands), provided that a juridical bay is determined to exist 

in the first instance without considering the presence of the screening 

311. The length of that gap, for example, is not included in the length of the closing line for purposes of 

the 24-mile rule or semicircle test. United States v. Louisiana, 394 U.S. at 62 n.83 (1969). 

Part Two 303 

Figure 74. Buzzards Bay, Massachusetts. Screening islands forming multiple 

mouths to the bay alter both entrance points. (Based on NOAA Chart 13200) 

islands and provided also the new headlands meet the 45-degree test.” 

Minutes of March 17, 1982. The actual application of these principles will 

undoubtedly depend on what appears to be reasonable under particular 

circumstances. 

In the case of Buzzards Bay, Massachusetts, screening islands move both 

mainland headlands seaward. A substantial additional area of inland water 

is enclosed. 

Non-Geographic Criteria 

Rhode Island introduced a number of additional arguments in support 

of its contention that Block Island creates multiple mouths to the Long 

Island/Block Island Sound complex. These included the facts that: “coastal 

traffic routinely passes outside of Block Island; commercial vessels rarely go 

between Montauk Point and Block Island because of the hazardous 

underwater conditions there; Block Island provides shelter in rough 

weather; the salinity of the water in Block Island Sound is less than that of 
304 Shore and Sea Boundaries 

water of the open sea; the island has an effect upon the currents of Block 

Island Sound; and these factors together link Block Island to the 

indentation rather than to the open sea.” Rhode Island and New York 

Boundary Case, 469 U.S. at 510-511. After reviewing its interpretations of 

Article 7 from the Louisiana Boundary Case, the Court merely concluded that 

“[n]owhere has it been suggested that because ocean traffic headed into a 

bay happens to pass landward of an island in open sea in order to enter that 

bay, the island therefore marks an entrance point to the bay. Nor is such a 

theory a fair extrapolation of Articles 7(2) and (5) of the Convention.” 469 

U.S. at 525.312 The Court declined to hold that Block Island formed 

multiple mouths to a bay.313 

In so doing the master and Court focused on the two-dimensional 

geography of the area. The federal government has always advocated that 

approach in juridical bay determinations. 

Examples of Multiple-Mouth Bays 

The Louisiana Boundary Case provided a number of claims that islands 

create multiple mouths to juridical bays. Most common were the state’s 

attempts to use mudlumps off the Mississippi River passes to extend 

admitted bay closing lines farther seaward. In a few cases the mudlumps 

were agreed to be so closely connected to the mainland as to be assimilated 

to it and provide mainland headlands. In some, the mudlumps were 

intersected by the mainland-to-mainland closing line and were agreed to 

create multiple mouths. In no case were mudlumps found to screen a large 

percentage of the opening and, therefore, produce multiple mouths where 

they were not intersected. See, for example, Report of July 31, 1974, at 38.314 

The Lake Pelto-Terrebonne Bay-Timbalier Bay complex, on the other 

hand, is clearly screened by a fringe of barrier islands. Again the parties 

312. The Court had explained that “under any reasonable interpretation of the Convention, Block Island 

is too removed from what would otherwise be the closing line of the bay to affect that line. Block Island is 

nearly 12 miles from Montauk Point and 7 miles from the nearest land. At no point is it closer than 11 miles 

from the 14-mile mainland-to-mainland closing line between Montauk Point and Watch Hill Point.” 469 U.S. 

at 524. 

313. Special Master Hoffman had recommended that result, finding that “Block Island is located well 

outside the indentation which begins at the Montauk Point to Watch Hill Point Line. Second, if the closing line 

included Block Island, there would be waters inside the closing line which are not landlocked. Third, the 

natural entrance or mouth of the indentation is along the Montauk Point to Watch Hill Point line and Block 

Island does not form the mouth to the bay or cause the bay to have multiple mouths. Last, Block Island is too 

far seaward of any mainland-to-mainland closing line to consider altering the closing line to include Block 

Island.” Report of October Term 1983, at 60. 

314. Elsewhere the master explained that “[n]or are the additional mudlumps relied upon by Louisiana 

as causing the closing line to deviate to the seaward sufficient to constitute a screen across the mouth of the 

bay, as they certainly do not cover a large percentage of the bay’s opening, but only a very small portion of it 

at one terminus. Moreover, they are not located along the natural closing line of the bay, but extend in a 

seawardly direction from it.” Report at 42. 

Part Two 305 

agreed that multiple mouths were created, contending only the location of 

proper entrance points on the islands. 394 U.S. at 56-61. The Court’s final 

decree describes a baseline composed of segments connecting those islands. 

422 U.S. 13 (1975). 

The Rhode Island and New York Boundary Case had one such issue, which 

involved Block Island. Rhode Island used a number of theories to justify a 

holding that it created multiple mouths to Block Island Sound but both the 

master and Court declined that invitation, finding primarily, that the island 

is too far removed from the mainland-to-mainland closing lines to 

qualify.315 

The Baseline Committee has dealt with multiple mouth bays in a 

number of locations around our coast. Some are created by intersected 

islands. These include: Demarcation Bay, Agnun Lagoon, and Peard Bay, 

Alaska, Minutes of July 27, 1970;316 Prince William Sound, Alaska, Minutes 

of August 31, 1970; the Timbalier Bay-Terrebonne Bay complex in Louisiana 

(which also meets the screening island requirements), Minutes of 

September 14, 1970; Biscayne Bay, Florida, Minutes of December 2, 1970; 

and Buzzards Bay, Massachusetts, Minutes of February 3, 1981. 

Others are created by islands that screen more than 50 percent of the 

opening. These include: Pagik Bay, Alaska, Minutes of July 17, 1970; Dease 

Inlet and Humphrey Bay, Alaska, Minutes of July 27, 1970; Mobile Bay, 

Alabama, Minutes of August 10, 1970; and Pamlico/Albemarle Sounds, 

North Carolina (treated as a double-headed bay), Minutes of December 7, 

1970. 

We can conclude from the foregoing that islands can create multiple 

mouths to a bay in three circumstances: where they are intersected by a line 

between mainland headlands, where they screen the entrance to the 

indentation such that the islands cover more of that distance than the water 

gaps, and where they are assimilated to the mainland. As a consequence, 

the inland waters of the bay are delimited by a series of lines rather than a 

single closing line between mainland headlands. The multiple mouths may 

be landward or seaward of the mainland-to-mainland line. The semicircle 

test will be performed using the total of the line segments as the diameter, 

rather than the mainland-to-mainland line. As a consequence less water 

area will be required to meet the test. The line segments may not total more 

than 24 nautical miles. 

315. Although the status of Long Island was also at issue it was found to be an island assimilated to the 

mainland and providing a headland without which there would have been no juridical bay, not an island 

forming multiple mouths to an already existing bay. 469 U.S. at 520. 

316. More recent charts may indicate that the island found to be intersected at that time has migrated 

seaward and may no longer be intersected or create multiple mouths. 
306 Shore and Sea Boundaries 

Overlarge Bays 

The foregoing principles enable us to determine whether or not a bay 

exists but provide no limitation as to maximum size. Articles 7(4) and (5) 

address that point. They state that “[i]f the distance between the low-water 

marks of the natural entrance points of a bay does not exceed twenty-four 

miles, a closing line may be drawn between these two low-water marks, and 

the waters enclosed thereby shall be considered as internal waters.” 7(4)317 

And, “[w]here the distance between the low-water marks of the natural 

entrance points of a bay exceeds twenty-four miles, a straight baseline of 

twenty-four miles shall be drawn within the bay in such a manner as to 

enclose the maximum area of water that is possible with a line of that 

length.” 7(5). In sum, even though an indentation meets all of the 

requirements previously described, not all of its waters are “inland” if the 

mouth is wider than 24 miles. There are numerous “overlarge” bays around 

the world and a few have been recognized in the United States (e.g., 

Ascension Bay, Louisiana; Cook Inlet, Alaska; Kotzebue Sound, Alaska; and 

Norton Bay, Alaska). Questions have arisen in determining how the limits 

of inland waters are to be identified in such circumstances. 

First, it is clear that the primary indentation must qualify as a bay under 

all of Article 7’s criteria save only the provision for a maximum 24-mile 

closing line. Both parties in the Louisiana Boundary Case accepted that 

starting point when contesting the status of “Ascension Bay.”318 The United 

States argued that Ascension Bay is not a bay because its headlands do not 

create landlocked waters.319 Special Master Armstrong disagreed. Applying 

the traditional criteria of Article 7, he concluded that “certainly its waters are 

landlocked, or, as sometimes described, Inter Fauces Terrae, within well 

marked natural entrance points. This is supported by the ratio of its depth 

of penetration to the width of its mouth, for it is almost perfectly 

semicircular in shape, the classic form of a bay. In this respect, it bears a 

startling resemblance to Monterey Bay, which was held to be a true bay in 

the California case.” Report at 45.320 The master determined that Ascension 

317. Although Article 7(4) refers to “these two” low-water marks, it is clear that if, because of islands, the 

indentation has more than one mouth, the various mouths will be measured and totaled to determine whether 

the 24-mile maximum has been exceeded. 

318. Ascension Bay is the name given by Louisiana to the water area that lies north and west of the 

southwestern tip of the Mississippi River delta. See Figure 11. We use quotation marks because the name 

“Ascension Bay” does not appear on most charts or maps of the area. That fact does not, of course, weigh 

against its potential qualification as a bay. Numerous other areas are denominated “bays” which do not meet 

the criteria of Article (7) and are not, therefore, juridical bays despite their names. Only geographic factors are 

relevant to this determination. 

319. The federal government took the position that the larger an indentation, the more “pinched” the 

headlands should be to create landlocked waters. Neither the master nor the Supreme Court adopted that 

interpretation. 

320. Louisiana also offered a number of international examples, including Hawke Bay, Australia. 

Part Two 307 

Bay is an overlarge bay. The United States did not take exception to his 

recommendation and the final decree in that case includes a 24-mile 

fallback line within Ascension Bay. 422 U.S. 13 (1975).321 (Figure 75) 

Figure 75. Ascension Bay, Louisiana. Note the dashed line across the bay's 

overlarge entrance and the solid, 24-mile fallback line. 

The Semicircle Test 

It is understood that an overlarge bay must meet the semicircle test, as 

well as the other criteria of Article 7. 1 O’Connell, The International Law of 

the Sea, 409 (1982). However, as with all bays there may be disagreement 

as to which subsidiary waterways may properly be included for purposes of 

the semicircle test. The Supreme Court faced this question in the Louisiana 

Boundary Case and the answer seems to depend on whether the two water 

bodies in question can reasonably be considered one. 394 U.S. at 48-53. 

The United States sought to exclude Caminada-Barataria Bay in calculating 

the area of Ascension Bay for semicircle purposes. The Court ruled for the 

state. It noted that Caminada-Barataria are separated from Ascension Bay 

only by a chain of islands, that islands are to be ignored for purposes of the 

semicircle test, and, therefore, these inner bays should be included in testing 

Ascension Bay’s qualifications. Id. at 53. 

321. The Baseline Committee approved the alteration of its charts to reflect this determination. Minutes 

of September 18, 1975. 
308 Shore and Sea Boundaries 

Determining the Maximum Area of Water 

Once an overlarge bay is identified it remains to determine where within 

that bay a 24-mile fallback line is to be drawn that encloses the maximum 

area of water as dictated by Article 7(5). Whether or not the water of 

subsidiary bays is calculated toward this maximum may have a significant 

effect on the location of that line. If their area is considered as part of the 

“maximum” water area being enclosed by the 24-mile line, other areas may 

be left as territorial or high seas that might have been enclosed by a different 

fallback line. Louisiana took the position that it could first draw closing 

lines across all interior water bodies that qualify separately as juridical bays, 

then construct a 24-mile fallback line that encloses a maximum of the water 

area not already determined to be inland. The United States argued that 

subsidiary water bodies whose area had been used to qualify the overlarge 

bay under the semicircle test should not be disregarded in measuring the 

parts of the bay to be enclosed by the 24-mile line. That is, the area used for 

semicircle purposes should be identified, a 24-mile line drawn that encloses 

the maximum portion of it, and other areas used for semicircle 

measurement should not be considered inland. 394 U.S. at 49 n.64. 

The Court rejected the federal position. It held that any feature that 

separately meets Article 7’s criteria will not be denied inland water status 

just because it was treated as part of the overlarge bay for semicircle test 

purposes but happens not to fall within the area closed by the 24-mile 

fallback line. Id. It is less clear, but seems to follow, that the line of 

maximum enclosure can be determined without reference to waters already 

qualifying as inland. 

Enclosing the maximum water area (apparently not including waters 

already inland) is the only criterion for locating the 24-mile fallback line. 

The area that it encloses need not meet any of the criteria for being 

landlocked. The line need not run between natural headlands. Prescott, The 

Maritime Political Boundaries of the World 60 (1985). Nor must the enclosed 

area meet the semicircle test. 

Left unanswered is the question – must the termini of the 24-mile line 

fall on land or might it be drawn to the closing line of a subsidiary bay? It 

is easy enough to imagine the situation in which the maximum water area 

(not already encompassed by subsidiary bays) is enclosed by a line that 

terminates on a bay closing line. (Figure 76) It is unclear whether such a 

line is authorized by Article 7(5). 

Examples of Overlarge Bays 

Ascension Bay is not the only overlarge bay that has been the subject of 

litigation. Cook Inlet, Alaska, is unquestionably an overlarge bay. The state 

contended that it is also a historic bay, and therefore inland despite the 

Part Two 309 

Figure 76. An overlarge bay with 24-mile fallback line terminating on the 

closing line of a subsidiary bay. 

geographic limitations of Article 7.322 Although Alaska was successful in the 

United States District Court, United States v. Alaska, 352 F.Supp. 815 (D.Ak. 

1972), and the Ninth Circuit Court of Appeals, 497 F.2d 1155 (9th Cir. 

1974), the Supreme Court rejected its claim. 422 U.S. 185 (1975). Thus, a 

24-mile fallback line had to be constructed within Cook Inlet. The result is 

a pair of lines running from the mainland on either side of the Inlet to 

Kalgin Island, which lies within it. Together the lines total 24 miles and 

enclose the maximum water area at the head of Cook Inlet.323 (Figure 77) 

The Baseline Committee has considered a number of other overlarge 

bays that have not been litigated. Kotzebue Sound, Alaska, was determined 

to be an overlarge bay and a 24-mile fallback line first was constructed from 

Espenberg Light to the low tide flats considered to be part of the mainland 

in front of Kotzebue Light. Minutes of September 14, 1970. When those 

flats dropped below mean low water the 24-mile line was moved to the 

322. Article 7(6) provides that “[t]he foregoing provisions shall not apply to so-called ‘historic’ bays . . . .” 

323. Although the Convention refers to “a straight baseline of twenty-four miles” the United States took the 

position that a combination of lines not exceeding that length could be used. See also, Beazley, supra, at 22-23. 
310 Shore and Sea Boundaries 

Figure 77. Cook Inlet, Alaska. Note the dashed line joining natural entrance 

points to this overlarge bay and the 24-mile fallback line at Kalgin Island. 

southwest corner of the Sound. Norton Bay, Alaska, was considered an 

overlarge bay and a fallback line drawn within it. Id. 

It seems established that any indentation that meets the criteria of 

Article 7(2) and the semicircle test is a “bay” for purposes of the 

Convention. Bays whose natural entrance points are more than 24 miles 

apart may not be closed at those entrance points but will be permitted a 

closing line of 24 miles, which encloses a maximum area of water. For 

purposes of determining whether the original feature meets the semicircle 

tests, the area of subsidiary bays may be included under certain 

circumstances. Nevertheless, subsidiary juridical bays that are not thereafter 

enclosed by the 24-mile fallback line retain their inland water status. 

RIVERS 

From time immemorial river waters have been understood to be inland 

waters. The Convention on the Territorial Sea and the Contiguous Zone 

provides that “[i]f a river flows directly into the sea, the baseline shall be a 

straight line across the mouth of the river between points on the low-tide 

Part Two 311 

line of its banks.” Article 13.324 Controversies have arisen only in 

determining the location of that “mouth” and identifying the points on the 

banks that serve as termini of the closing line.325 

Definitions 

Resolving these controversies begins with the definition of “river.” 

There have been many. Commonly accepted elements include: fresh water, 

naturally flowing from a region of higher elevation to a region of lower 

elevation, which is contained between parallel or nearly parallel banks. 

Testimony of Dr. Robert Hodgson before the special master in Texas v. 

Louisiana, Number 36 Original, Transcript at 522-529.326 With these 

elements in mind we turn to the process of locating a particular river mouth. 

The Convention’s Criteria 

The Convention on the Territorial Sea and the Contiguous Zone 

provides help in locating a river’s mouth. 

Directly into the Sea 

The first consideration is that Article 13 applies only to rivers that flow 

“directly into the sea.” In the simplest case the parallel banks of the river 

form right angles with the shore of the open sea and a direct line between 

those angles defines the river “mouth.” If there is any question as to the 

precise entrance points on the banks, they can be determined through the 

various methods used to define the mouths to juridical bays. But seldom 

do rivers, particularly large ones, retain their riverine character all the way to 

the sea. More commonly, their banks begin to diverge as they approach 

the sea, often forming an estuary that has none of the appearance of a 

typical river. 

Estuaries are not to be treated as part of the river for purposes of Article 

13. That was made clear in early drafts of the Article, which included a 

second provision that read “[i]f the river flows into an estuary the coasts of 

324. Article 9 of the 1982 Law of the Sea Convention is identical, save for its use of the term “low-water” 

rather than “low-tide” line. 

325. Unlike bays, river mouths are rarely so wide that they have any significant effect on the seaward limit 

of the territorial sea. Nevertheless, we must be able to determine the limit of their inland waters for other 

reasons. For example, environmental statutes may impose different conditions for inland waters than for the 

territorial sea, making it important to determine whether an outfall pipe, for instance, discharges into a “river” 

or the territorial sea beyond. 

326. For additional definitions and discussions of the evolution of the treatment of rivers in international 

law see: 4 Whiteman, Digest of International Law 336 et seq. (1965); 2 Shalowitz, 371 et seq. (and glossary) 

(1964); 1 Fauchille, Part 2, Traite de Droit International Public 401 (1925); and Report of the Special Master in 

Georgia v. South Carolina, Number 74 Original of October Term, 1985, at 110. 
312 Shore and Sea Boundaries 

which belong to a single State, article 7 [bays] shall apply.”327 That language 

was deleted from the final draft, not because the representatives intended to 

alter that position, but because of difficulties in defining “estuary.” 

Churchill and Lowe, supra, at 34.328 The single requirement that Article 13 

applies only to rivers flowing “directly into the sea” achieves the same result. 

Subsequent expert comment and practice confirm that interpretation. 

G. Etzel Pearcy, then geographer of the Department of State, wrote in 1959 

that “an article concerning estuaries was approved by Committee action at 

the Law of the Sea Conference, but failed to gain the necessary majority in 

the final Convention. Thus, estuaries must legally qualify as bays.” Pearcy, 

supra, at 8. The United Kingdom’s official comment on the proposed Article 

13 had already made clear that country’s position that “‘mouth of a river’ 

means the river proper and not an estuary or bay into which it may flow.” 

Report of the International Law Commission, Seventh Session, 1955, 

A/2934, p. 44. Commander Beazley later opined that the English and 

French texts taken together make clear that “other provision is to be made 

for rivers that flow into a bay or form an estuary.” Beazley, supra, at 14, and 

“since a river mouth is an ‘indentation’ of the coast [it] can therefore 

conveniently be handled under the clearly artificial concept of a juridical 

bay.” Id. at 26. 

O’Connell likewise recognizes that “Article 13 of the Geneva 

Convention covers only the case where a river maintains its stream shape, 

that is, flows directly into the sea,” O’Connell, supra, at 225, but he does not 

specifically identify the Article 7 rules for treating estuaries. Rather, he 

simply concludes that “other cases are left unresolved . . .,” id., and that “a 

criterion may be necessary to establish the baseline of the territorial sea.” Id. 

at 221. 

American practice has been to apply the bay principles to estuaries. The 

Supreme Court has decreed, for example, that a river estuary is treated in the 

same way as a bay. United States v. California, 382 U.S. 448, 451 (1965).329 

327. Report of the International Law Commission covering the work of its eighth session, 23 April-4 July 

1956, U.N. Gen. Ass. Off. Rec. 11th Sess., Supp. No. 9 (A/3159), p. 18; II Yearbook of the International Law 

Commission 1956, pp. 253, 271-272. Discussed at 4 Whiteman, supra, 339 et seq. 

328. Interestingly, the French text of the Convention retained the expression sans former estuaire. 

O’Connell refers to its inclusion as an “accident,” which “suggested an interpretation which would re-establish 

the equation of bays and estuaries.” 1 O’Connell, supra, at 225. 

329. The issue came up again in United States v. Louisiana where, on first blush, it might appear that the 

Mississippi River delta is an estuary. But, as the special master pointed out, it is not a true estuary because the 

major mouths of the Mississippi do not empty into it, but flow directly to the open Gulf of Mexico. United 

States v. Louisiana, Report of the Special Master of July 31, 1974, at 27 and 394 U.S. 11, 74 n.99. Nevertheless, 

the construction of a baseline along that delta is consistent with the federal interpretation of Article 13. When 

the provisions of Article 7 were applied to waters between the major distributaries of the Mississippi River, such 

as East Bay, a question arose as to the proper application of the semicircle test. In an effort to maximize water 

area, Louisiana urged that minor river channels emptying into the bays should be included. It was eventually 

determined that those areas of “riverine” character should not be included as part of the bay-like indentations 

into which they emptied. Just as a river does not include the more open waters of a bay into which it flows, 

that bay does not include waters of the river. 

Part Two 313 

The position has also been taken internationally. In 1961 Uruguay and 

Argentina agreed upon a line that purported to be the mouth of their 

common boundary, the Rio de la Plata. The banks of the Rio de la Plata, 

like many great rivers, diverge as they approach the sea, creating an estuary 

of substantial width. Nevertheless, the parties cited Article 13 as authority 

for their closing line. The United States protested the action, stating that the 

Article “relates only to rivers which flow directly into the sea which is not 

the situation of the River Plate which flows into an estuary or bay.” Quoted 

and discussed at 4 Whiteman, supra, at 343.330 Thus it is well settled in 

American practice that a river’s “mouth” is located where its parallel banks 

diverge to the point that the water body can no longer be described as 

“riverine.” It is then either a bay, estuary, or the open sea. In the first two 

instances it will be nevertheless inland if the criteria of Article 7 are met.331 

The rule alone does not, of course, solve all of the practical problems. 

As delegates to the first Law of the Sea Conference recognized, it is not easy 

to determine where an estuary, bay, or the open sea begins. That question 

must be left to case-by-case determination with the guidance of political 

geographers. 

We should note that a finding that the river has ended before it reaches 

the open sea may have significant consequences for the limits of offshore 

jurisdiction. Article 7 may not permit an inland water closing line in the 

circumstances, or its line may be shoreward of the entrance to the open sea. 

First, by its terms, Article 7 applies only to bays of a single state, not 

boundary bays. Article 7(1). Article 13 appears to have no such limitation. 

Thus, if for example the Rio de la Plata had parallel banks all the way to the 

sea it might be closed by a line with termini in Uruguay and Argentina.332 

Its estuary cannot be so closed, as noted in the United States’ diplomatic 

protest, because Article 7 does not apply to boundary bays. 4 Whiteman, 

supra, at 343. Next, even a non-boundary estuary would have to constitute 

a well-marked indentation into the coast and enclose enough water area to 

meet the semicircle test.333 Although commentators have often assumed 

that an estuary would qualify, the conclusion is hardly a given. Finally, 

Article 13 has no limit on the width of a river mouth. By contrast, if the 

330. The United Kingdom and the Netherlands made similar protests. Id. 

331. Such waters will also be inland if the area is enclosed by Article 4 straight baselines, is a port, or is 

historic inland water. 

332. The United States took the contrary position in protesting the Rio de la Plata closing line, stating that 

“it is the view of the United States Government that the provisions of Article 13 relate only to rivers which flow 

directly into the sea from the territory of a single State and not to rivers whose coasts belong to two or more 

different States.” 4 Whiteman, supra, at 343. 

333. Ironically, although a party seeking to maximize offshore jurisdiction will benefit from establishing 

that a river continues until it meets the open sea, if it in fact empties into a bay or estuary it may be to his advantage 

to urge the most inland possible reach of the bay to increase its potential for meeting the semicircle test. 
314 Shore and Sea Boundaries 

mouth of an Article 7 bay is more than 24 miles across, inland waters are 

limited to a fallback line of 24 miles within the bay. Article 7(5).334 

A Straight Line 

Article 13’s second requirement is that the baseline at a river mouth 

shall be a “straight line.” That characteristic would seem to go without 

saying, since all inland water closing lines, or line segments, are straight 

lines.335 In rare circumstances a straight line between points on the banks 

of a river might intersect an island lying in the mouth. In that situation the 

rules for constructing multiple mouths might be applied, resulting in two 

line segments. Rarely, if ever, would maritime boundaries be significantly 

affected. 

In unusual circumstances, parties have urged that a river mouth should 

be described as an area (such as a circle or rectangle) rather than a straight 

line. Report of the Special Master in Georgia v. South Carolina, October Term, 

1975, at 110. Such a designation might include areas that have a particular 

relationship with the river, such as a bar or continued flow of fresh water, 

but would be difficult to apply for boundary delimitation purposes. In any 

case, the straight line requirement would seem to preclude their 

consideration. 

The term “straight line” seems to have replaced the requirement, in early 

drafts of the Article, that closing lines across river mouths “follow the 

general direction of the coast.” In 1930, the Hague Conference for the 

Progressive Codification of International Law considered maritime 

boundary questions and its subcommittee drafted a provision providing 

that “the waters of the river constitute inland water up to a line following 

the general direction of the coast drawn across the mouth . . . .” Report of 

the Second Commission (Territorial Sea), Appendix B, League of Nations 

Doc. C.230.M.117.1930.V., p. 14. The Department of State described this as 

the United States’ position in 1951, 4 Whiteman, supra, at 337, and it was 

employed (without controversy) in United States v. California. Reports of the 

Special Master of May 22, 1951 at 6 and 8 and October 14, 1952 at 4. See 

also: 2 Shalowitz, supra, at 371. 

That definition was a starting point for discussions that led to the 1958 

Convention; however, it became clear that it is impractical to attempt to 

define the general direction of any coast. Any determination depends, to a 

334. This point was also made in the United States’ protest to Uruguay and Argentina, whose line 

exceeded 24 nautical miles. 

335. The special master in United States v. California even justified his choice of a segment of the closing 

line across San Pedro harbor in part on the ground that it more nearly continued a “straight line” when 

considered with other segments of the closing. However, nothing in the Convention’s history suggests that the 

various closing lines at multiple mouths of a water body need remain on a constant bearing. To the contrary, 

the Supreme Court has considered such lines and determined that their termini are located at “natural entrance 

points”on the land forms that create the multiple mouths. United States v. Louisiana, 394 U.S. 11 (1969). It 

gave no indication that separate segments must form a “straight line.” 

Part Two 315 

large extent, on arbitrary decisions as to the scale of chart to be used and the 

length of coastline on either side of the river mouth. As a consequence, the 

requirement was dropped. 4 Whiteman, supra, at 339-340.336 

We can assume that if the question comes up again in U.S. litigation, the 

Convention’s definition will be adopted and “general direction of the coast” 

will be given no weight in river mouth delimitation. 

On the Low-Tide Line of its Banks 

Finally, Article 13 provides that the river closing shall join two points 

“on the low-tide line of its banks.” Two questions have arisen. The first is 

the definition of “banks” and the second, how specific end points are to 

be selected. 

WHAT ARE BANKS? Surprisingly, two tidelands cases have dealt with 

the definition of river banks. 

Artificial Structures. Artificial structures may actually extend the natural 

“mouth” of a river well into the larger body of water into which it flows. 

The matter was put before the Supreme Court in Texas v. Louisiana, Number 

36 Original (in which the federal government intervened). It is not unusual 

to have parallel jetties extending out to sea from the original banks of a 

river. Without such jetties the flow of river water would dissipate and slow 

as it entered the sea, bay, or gulf and deposit its silt in the shallow nearshore 

waters, hindering navigation. Jetties permit the river flow to continue at a 

greater pace until it reaches deeper water, where the deposits have less effect. 

The Sabine River, which forms the boundary between Texas and Louisiana, 

has jetties at its mouth that extend some 3 miles into the Gulf of Mexico. 

(Figure 78) 

Texas contended that the mouth of the Sabine River is a line drawn 

where its “natural” banks meet the Gulf. It would have ignored the jetties 

for purposes of locating the river mouth. Louisiana (supported by the 

United States) took the contrary position. It argued that the jetties extended 

the river mouth to their seawardmost location, reasoning that the parallel 

jetties merely continued the original riverine character and, in fact, carried 

the same river waters.337 

336. It is interesting to note that although the “general direction” requirement was dropped from Article 

13 in the 1958 Convention, it reappears in Article 4, which provides that straight baselines “must not depart to 

any appreciable extent from the general direction of the coast . . . .” Article 4(2). 

337. In fact, this part of the controversy was really about the location of an offshore extension of the 

states’ river boundary. Substantial petroleum resources were known to exist near the mouth of the Sabine. 

However, the states’ river boundary had never been extended to the limits of their offshore boundaries. A 

number of theories may be employed for constructing lateral boundaries. However, most logical options would 

favor Texas if initiated at the natural coastline and Louisiana if begun at the seaward end of the jetties. Because 

Texas was granted a 3-league (9-nautical mile) Submerged Lands Act boundary, and Louisiana only 3 nautical 

miles, the remaining area of federal jurisdiction would be maximized with the Louisiana position, hence the 

federal intervention on that state’s side. (Although, it should be noted, the United States developed its theories 

and evidence separate from Louisiana and did not adopt most of the state’s theories.) 
316 Shore and Sea Boundaries 

Figure 78. Sabine River. Jetties form the mouth of the Sabine River at the 

Texas/Louisiana border. (Based on NOAA Chart 11340) 

Texas presented expert testimony focusing on the waters outside the 

jetties. Its witness concluded that the mouth of the river should be drawn 

at the natural shore, ignoring the jetties. He explained (with some degree 

of common sense) that “I have difficulty picturing river banks with water on 

both sides.” Transcript at 965. The Louisiana and federal witnesses focused 

on the area inside the jetties, noting that it met the traditional definition of 

a river and, indeed, the jetties had been constructed at great expense for the 

purpose of extending the river. The special master explained that “there is 

evidence and testimony from which it could be found that the jetties extend 

the river and that the mouth of the river is now actually at the gulfward 

terminus of the jetties . . . . The geographic middle of the river is therefore 

the middle of the jetties.” Report of October Term, 1974, at 15. He went 

on to conclude that “the baseline should include the jetties of Texas and 

Louisiana. Any construction of Article 13 which requires the baseline to 

include a closing line at the head [landward end] of the jetties, rather than 

at the terminus, is rejected.” Id. at 48. Exceptions were taken by the states, 

but the Supreme Court adopted its master’s recommendations. Texas v. 

Louisiana, 406 U.S. 465 (1976). 

Rivers have also been closed at the seaward limit of jetties on the coasts 

of California and Florida, although by stipulation not litigation. 

Part Two 317 

Submerged Features. Submerged features have also been proposed as river 

“banks” between which a closing line could be drawn. The location of the 

mouth of the Savannah River was at issue in Georgia v. South Carolina, 

Number 74 Original. The river’s southern headlands was agreed to extend 

to the limits of Tybee Island. However, there is no obvious mainland 

headland on the north. A number of options were proposed. The master 

concluded, and the Court later agreed, that the northern headland is a 

submerged shoal which runs parallel with Tybee Island. Report of October 

Term 1974, at 111.338 

The Supreme Court agreed. After acknowledging that the situation is 

unusual because “the most seaward point of land on the southern side of 

the river, has no counterpart of high land on the northern side,” Georgia v. 

South Carolina, 497 U.S. 376, 399 (1990), the Court explained that “[t]he 

geographic feature taking the place of the customarily present opposing 

headlands is, instead, a shoal, long recognized as confining the river.” Id. 

And that “[g]iven this somewhat uncommon type of river mouth, the 

Special Master’s conclusion that the northern side of the Savannah’s mouth 

is the underwater shoal is not unreasonable.” Id. at 400. 

But the Savannah River example probably provides no precedent for 

interpreting the Convention or Submerged Lands Act. The mouth of the 

Savannah River was being located for purposes of interpreting a boundary 

treaty, not the Convention on the Territorial Sea. The Convention’s 

reference to “points on the low-tide line of its banks” makes clear that, 

under its provisions, features without a low-water line will not qualify as 

riverbanks. Had the master and Court been applying Convention 

principles, a different result would probably have been reached. 

LOCATING ENTRANCE POINTS. Finally comes the question of how 

exact termini of a closing line are to be identified. Once the area of the river 

mouth is located, usually by establishing where its banks are no longer 

roughly parallel, a precise line must be drawn. The end points of that line 

will be selected through the same processes as are employed for 

determining the entrance points to a juridical bay. The 45-degree test will 

probably be the starting point. See: Hodgson, Toward A More Objective 

Analysis, supra, at 12. See also: 1 Shalowitz, supra, at 63-65. 

338. In like manner Louisiana had contended that dredged channels should qualify as harborworks and 

be treated as base points from which the territorial sea is measured. It was unsuccessful. United States v. 

Louisiana, 394 U.S. 11, 36-40 (1969). 
318 Shore and Sea Boundaries 

Boundary Rivers and Length of Closing Lines 

Some question may remain as to application of Article 13 to boundary 

rivers and the maximum length of a river closing line, if any. Unlike Article 

7, Article 13 makes no distinction between rivers that flow to the sea 

through the territory of a single state and those that form the boundary 

between two states. Nevertheless, in its protest to Uruguay and Argentina 

the United States took the position that Article 13 does not apply to 

boundary rivers. Churchill and Lowe state that “in the absence of any 

qualification to the contrary, [Article 13] would appear to apply both to 

rivers with a single riparian State as well as to rivers with two riparian States 

. . . .” Churchill and Lowe, supra, at 33. They then acknowledge the 

apparent contrary position of the United States. Id., citing 4 Whiteman, 

supra, at 343. 

Unfortunately the American position is not explained. Nor is it clear 

what its consequence would be. The United States has boundary rivers with 

both Canada and Mexico. These rivers are certainly considered to be inland 

waters. Surely they have “mouths.” If the limits of inland waters at these 

mouths are not delimited with the principles of Article 13, we know of no 

other principles for their delimitation. Consequently, whether Article 13 

applies to boundary rivers or not it seems that it would be adopted for their 

purposes, without foreseeable prejudice to the international community. 

Neither does Article 13 place any limit on the length of a proper closing 

line. Although early positions suggest limits similar to those imposed on 

bay closing lines, 4 Whiteman, supra, 337, 340, and 341, commentators 

agree that the final provision contains no such constraint. Hodgson, Toward 

A More Objective Analysis, supra, at 3; Churchill and Lowe, supra, at 33; and 

Prescott, The Maritime Political Boundaries of the World 51 (1985). It would 

appear that a river closing line, which meets the other criteria of Article 13, 

can be any length. 

In sum, rivers are inland waters. A river is a flowing water course that is 

contained by roughly parallel banks. The mouth of a river is located where 

it enters another body of water, that is, where its riverine character ends. 

Where that occurs at the open sea, the “mouth” may form part of the 

baseline from which the territorial sea is measured. It appears that river 

mouths are not limited by Article 7’s 24-mile maximum closing line for bays 

or its admonition that the water body may not lie on a national boundary. 

On the other hand, if a river flows first into a bay or estuary, the rules of 

Article 7 will determine whether that body is inland water and, if so, where 

its closing line is located. 

Part Two 319 

HARBORS AND PORTS 

Like bays and rivers, harbors and ports are included within the internal 

waters of the coastal state. As a consequence, lines across their entrances 

form part of the baseline from which more seaward maritime zones are 

measured. Article 8 contains the Convention’s relevant provision. It states 

that “for purposes 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.” Although the Article itself makes no 

mention of inland waters, its legislative history is clear, waters enclosed by 

such “harbour works” are inland.339 The United States acknowledged the 

inland waters status of harbors in the United States v. California. As 

Shalowitz explained “[i]t was the Government’s position that the line 

separating the inland waters of a harbor from the marginal sea ‘must be 

drawn at the point which will include that portion of the water which is 

enclosed in a bay or inlet and used by vessels as a place to anchor or dock 

to load or unload passengers or freight.’”340 Commentators agree.341 

As with bays, it is one thing to agree that ports comprise inland waters. 

It is quite another to determine where, exactly, the limits of those inland 

waters extend. The question was put before a special master in the California 

case. It arose in the context of the Port of San Pedro. 

In its natural state the water area of San Pedro is barely an indentation 

in the coastline, providing little protection from the open sea.342 To provide 

the protection necessary for a major port, the Long Beach breakwater was 

constructed. The breakwater is a substantial structure, roughly paralleling 

the natural coastline and providing protection for the waters within. The 

breakwater itself had been accepted as a “harborwork” and the waters of the 

port as “inland” in United States v. California, 382 U.S. 448, 451 (1966) but 

339. As was the case with so much of the 1958 Convention, Article 8 evolved from a similar provision 

considered by the 1930 Hague Conference for the Codification of International Law. The Committee Report 

on the 1930 language observed that “the waters of the port as far as a line drawn between the outermost works 

thus constitute the inland waters of the Coastal State.” Report of the Second Committee, Conference for the 

Codification of International Law, The Hague, 1930, League of Nations Doc. C.230.M.117.1930.V., p. 12. This 

understanding continued through the Article’s final adoption in 1958 in Geneva. 

340. 1 Shalowitz, supra, at 61; quoting Brief for the United States before the Special Master at 101 (May 

1952) United States v. California, Number 6 Original, October Term, 1951. 

341. See, for example, Prescott, The Maritime Political Boundaries of the World 61 (1985). 

342. This is typical of much of the California coast, a fact relied upon by California when it argued, 

unsuccessfully, that its numerous coastal piers should be treated as harborworks because they serve as the 

“ports” on its otherwise mostly straight coastline. 
320 Shore and Sea Boundaries 

no decision had been made on the limit of its inland waters from the 

eastern terminus of the breakwater back to the mainland.343 And the parties 

could not agree. California opted for the Anaheim Bay East Jetty as its 

mainland headland. The United States selected the Alamitas Bay Jetty.344 

(Figure 79) The question for the master was which of these jetties is the 

“outermost permanent harborwork” of the Port of San Pedro.345 

Figure 79. Port of San Pedro, California. The port is formed by artificial 

harborworks. 

The United States emphasized geography in its position. Arguing that 

the port’s mouth should be located through the methods employed for the 

construction of bay closing lines, the federal government began with the 

eastern end of the breakwater as one headland then turned to the mainland 

in search of a logical “opposite” headland there.346 It concluded that of the 

343. “The inland waters of the Port of San Pedro are those enclosed by the breakwater and by straight 

lines across openings in the breakwater; but the limits of the port, east of the eastern end of the breakwater, are 

not determined by this decree.” United States v. California, supra, 382 U.S. at 451. 

344. Report of the Special Master in United States v. California, Number 5 Original, August 20, 1979, at 7. 

345. The limits of similar inland water lines were agreed upon at Humboldt Bay, Port Hueneme, Santa 

Anna River and Agua Hedionda Lagoon. United States v. California, 432 U.S. 40 (1977). 

346. Commander Beazley provided authority for that position, noting that “where an artificial sheltered 

harbour, such as Dover, has been built on the coast the question of determining the baselines across the entrance 

will seldom create difficulties, although in theory the bay rules could be applied.” Beazley, supra, at 24. 

Part Two 321 

tests discussed above for bay closing lines the shortest distance method was 

most applicable.347 

California took a different approach. It denied any relevance of the bay 

closing rules, emphasizing function rather than geography in its quest. The 

state argued that all of the waters shoreward of its proposed line served as 

the Port of San Pedro. The special master adopted the state’s theory. He 

looked to the use of those waters, concluded that they were are all part of 

the “integrated” Port of San Pedro, and adopted California’s proposed 

closing line. Report of the Special Master, id. at 8-13.348 The United States 

did not take exception to the master’s recommendation, and that inland 

water line was incorporated in a subsequent Supreme Court decree.349 

Although the minor differences between the federal and state positions 

result in little difference in either the limits of inland waters or more 

seaward maritime boundaries, the Court’s adoption of the state’s legal 

theory is significant. The mouths of other inland waters, specifically bays 

and rivers, are located through the application of (hopefully) objective legal 

principles to particular geographic areas. The idea being that any mariner 

who is aware of those principles, and has an accurate chart of the coastline, 

can determine when he leaves one zone of maritime jurisdiction and enters 

another. The limits of inland waters in ports, at least in American practice, 

are to be delimited by analyzing “function,” not geography, a chore for 

which the typical navigator will not possess the necessary information.350 

That is not to say that the master and Court were wrong.351 Ports have 

traditionally been defined as areas in which particular activities take 

place.352 Article 7 gives specific objective guidance to establish the mouths 

of bays. Article 8 contains no similar criteria for ports. Determining the 

347. The parties agreed that the usually preferable “bisector of the angle test” and “45-degree test” were 

not applicable here. Report of the Special Master, id. at 8 n.8. 

348. The master determined that “San Pedro Bay is not one isolated harbor or bay which happens to 

contain facilities for loading and offloading ships. Rather, the Bay contains the entire Los Angeles area port 

system . . . (Report at 8) and “Anaheim Bay is itself part of the harbor system. In order to include the Bay with 

the inland waters the closing line must be drawn to the East Jetty (id. at 12-13). “Accordingly, I find that the 

entrance to the Port of San Pedro is the gap between the Long Beach Breakwaterand the Anaheim Bay East Jetty, 

and that the East Jetty constitutes the outermost permanent harbor work with the meaning of paragraph 4 of 

the 1966 decree, 382 U.S. at 450-51.” Id. 

349. United States v. California, 449 U.S. 408 (1981). 

350. The difficulty is not limited to cases, such as San Pedro, in which harborworks form both entrance 

points to the port. The absence of such works necessitating the selection of termini on the natural mainland, 

would, presumably, create an even more difficult problem for the mariner if nautical charts gave no 

information about use of the area. 

351. As noted, the federal government did not take exception to the master’s recommendation. 

352. See: Report of the Special Master in United States v. California of August 20, 1979, at 7 n.7; United 

States v. Louisiana, 394 U.S. 11, 36-37 (1969); and 4 Whiteman, supra, at 258- 263. 
322 Shore and Sea Boundaries 

limits of inland waters in ports will always require an ad hoc consideration 

of non-geographic factors. That is probably as it should be.353 

ROADSTEADS 

Roadsteads are areas seaward of the coast or a harbor that are used for 

loading or anchoring ships. (Figure 80) Article 9 of the 1958 Convention 

provides that “roadsteads which are normally used for the loading, 

unloading and anchoring of ships, and which would otherwise be situated 

wholly or partly outside the outer limit of the territorial sea, are included in 

the territorial sea. The coastal state must clearly demarcate such roadsteads 

and indicate them on charts together with their boundaries, to which due 

publicity must be given.”354 The provision seems straightforward. Where an 

353. The special master bolstered his determination with two unrelated considerations. First, he noted 

that his recommended line is more nearly a “straight” closing line, reasoning that “implicit in the Supreme 

Court decrees and Geneva Convention is the principle that closing lines across river mouths, ports, bays, and 

other bodies of inland waters shall be straight. See, e.g., paragraphs 4 and 5 of the 1966 decree, 382 U.S. at 

450-51, Articles 7(4) [presumably intended to read 7(5)] and 13 of the Geneva Convention, and paragraph 

1(a) of the 1977 decree, 432 U.S. 40.” Report, supra, at 9-10. And then finding that “a line drawn to the 

Anaheim Bay East Jetty will, however, most closely approximate the ideal straight closing line. If one stands 

back and views the Port in context of the coast’s natural curvature to each side of the bay, California’s proposed 

closing line more closely ‘fits’ these curvatures than does the closing line proposed by the United States. A 

boundary line which tracks a coast line will never, of course, be entirely straight or regular. The straight line 

requirement is intended, nevertheless, to eliminate such artificial boundaries as proposed by the United 

States.” Id. at 10. 

We believe that, although harmless in this instance, any effort to apply such reasoning to future limits 

would be fraught with difficulty. Clearly the Convention and prior decrees of the Supreme Court do not 

support the conclusion. 

The master seems to describe either, or both, of two potential principles. First, that inland water closing 

lines are supposed to “fit” the curvature of the coast being closed. This concept would appear to be akin to 

that idea that inland water lines should run parallel to the general direction of the coast, an idea that is 

applicable only to Article 4 straight baselines. Bay and river closing lines are drawn taking into consideration 

the landlocked nature of the indentation being enclosed, not adjoining coastlines. A survey of the many 

closing lines approved by the Court would disclose no relation between the bearings of closing lines and those 

of the adjacent coasts. Nor does the Court ever mention such a criterion in its many discussions of bay closing 

lines. Second, the master may have been saying that where a water body has multiple mouths the various 

closing lines should continue on a similar bearing. Again, neither the Convention nor the Court’s analysis has 

even suggested such a consideration. In fact, in the application of Article 7(3), concerning multiple mouthed 

bays, the Court has determined only that natural entrance points should be used as termini for each of the 

closing lines, with no concern for how the bearing of one segment might be related to others. Although Article 

7(5) proscribes a “straight baseline” of 24 miles within an overlarge bay, the United States has not even taken 

that literally. Cook Inlet, Alaska, is such a bay. Its inland waters are delimited by two line segments joining 

Kalgin Island to the mainland. Those segments do not form a straight line. 

Individual inland water closing lines are “straight” lines. That is, they are the shortest lines by which the 

selected termini can be connected. Where multiple mouths result in a segmented closing line those segments 

may or may not retain a constant bearing. In nature they almost certainly would not. 

The master also looked at the Coast Guard’s “COLREGS” lines in the area that separate areas subject to 

domestic navigation regulations from those subject to international regulations. The Supreme Court had 

previously ruled that similar Coast Guard lines off the coast of Louisiana had no relevance to inland water 

determinations. United States v. Louisiana, 394 U.S. 11, 35 (1969). Nevertheless, and despite that fact that the 

COLREGS line at the eastern end of the Port of San Pedro does not coincide with the master’s closing line, he 

found that the Coast Guard line “shed some light” on the question before him. Report at 10. 

The master’s ultimate conclusion with respect to the Portof San Pedro would seem sufficiently supported 

by his analysis of the use of the water area. For that reason, the federal government did not take exception to 

his recommendation. We do not believe that his additional bases add any weight to his determination. 

354. The 1982 Law of the Sea Convention’s comparable provision, Article 12, has only the first sentence of 

Article 9, and ends there. The requirement for charting roadsteads is found in Article 16 of the 1982 Convention. 

Part Two 323 

Figure 80. Port of San Pedro, California, and roadstead. The roadstead 

outside of the Port of San Pedro has no effect on inland waters or the baseline. 

(Based on NOAA Chart 18746) 

anchorage area serves as an extension of a port or harbor, its waters shall be 

considered territorial sea but not inland. They do not, therefore, form part 

of the inland water baseline.355 

Although we have been concerned here with the limits of inland waters, 

it is important to consider roadsteads because of their history. As O’Connell 

points out, the 1958 provision “involves a departure from the common law 

tradition, which linked harbors, roads, bays and creeks in the one legal 

category; and also, it seems, from customary international law which, at 

least in the early stages, did likewise.” 1 O’Connell, The International Law of 

the Sea 219 (1982). For example, the comparable provision considered at 

the 1930 Hague Conference treated roadsteads as inland waters that 

generated additional territorial seas. 4 Whiteman, supra, at 266. PreConvention litigation in United States v. California proceeded on the 

assumption that the inland waters of harbors could include anchorage 

areas, 1 Shalowitz, supra, at 62, but that, absent evidence to the contrary, its 

outer limit would be assumed to be “the line of the outermost harbor 

355. See: McDougal and Burke, The Public Order of the Oceans 423-437 (1962). 
324 Shore and Sea Boundaries 

works.” Id. The Supreme Court later made clear that anchorage areas 

seaward of harborworks are not inland waters. United States v. California, 

381 U.S. 139, 175 (1965) (citing Article 9), and 382 U.S. 448, 451 (1965). 

Roadsteads are territorial sea, not inland waters. Presumably their 

boundaries will, like ports, be determined by usage. 

HISTORIC INLAND WATERS 

Waters may also acquire inland water status by having been treated as 

inland through time even though they meet no specific geographic criteria. 

The final paragraph of Article 7 specifically provides that “the foregoing 

provisions shall not apply to so-called ‘historic’ bays.” Article 7(6).356 

Although the Convention itself neither defines historic waters nor explains 

how that status is attained, a subsequent United Nations study reviewed 

both issues in some depth. The Supreme Court has relied heavily on that 

study in tidelands litigation. It has accepted the proposition that historic 

bays are water areas over which the “coastal nation has traditionally asserted 

and maintained dominion with the acquiescence of foreign nations.” 

United States v. California, 381 U.S. 139, 172 (1965).357 And, has recognized 

that “there appears to be general agreement that at least three factors are to 

be taken into consideration in determining whether a body of water is a 

historic bay: (1) the exercise of authority over the area by the claiming 

nation; (2) the continuity of this exercise of authority; and (3) the 

acquiescence of foreign nations.” Alabama and Mississippi Boundary Cases, 

470 U.S. 93, 101-102 (1985).358 The Court has favorably quoted the Juridical 

Regime , saying, “the coastal nation must have effectively exercised 

sovereignty over the area continuously during a time sufficient to create a 

usage and have done so under the general toleration of the community of 

States.” Id. at 102.359 These then are the benchmarks against which the 

Supreme Court and its special masters have measured historic inland water 

claims when they have arisen in American practice. 

The issue has come up frequently in the tidelands cases.360 Coastal 

states have often asserted that water areas have been treated as inland by the 

United States even though they do not meet Article 7’s criteria. In each 

356. Article 10 (6) of the 1982 Law of the Sea Convention contains the identical provision. 

357. In its analysis the Court was citing to, and quoting from, a United Nations study on the issue entitled 

Juridical Regime of Historic Waters, Including Historic Bays, supra. 

358. Citing United States v. Alaska, 422 U.S. at 189; and Louisiana Boundary Case, 394 U.S. at 23-24 n.27. 

359. Quoting from the Juridical Regime, supra, at 37-38. 

360. California, Louisiana, Alaska, Florida, Massachusetts, Rhode Island, Mississippi, and Alabama all 

have made historic inland water claims. Massachusetts also made a closely related claim that it characterized 

as “ancient title.” 

Part Two 325 

instance the federal government “disclaimed” title to such areas. The Court 

has given weight to the federal disclaimer, but permitted the states to pursue 

their contentions “as if made by the United States and opposed by other 

nations,” United States v. Louisiana, 394 U.S. at 23-24 and 74-75. At the 

same time it has imposed an unusual burden of proof on the states. 

The Disclaimer 

In every tidelands case since 1971 there have been at least two examples 

of federal disclaimers to state historic water claims. The first is the federal 

position in the litigation itself. Opposition to the state claim constitutes a 

disclaimer.361 Second is the publication and distribution of official charts 

that depict the United States’ maritime claims. In 1970, the National 

Security Council’s Law of the Sea Task Force set up the “Committee on 

Delimitation of the United States Coastline.” With members from all 

federal agencies having an interest in our maritime boundaries, that group 

reviewed and approved charts of our maritime claims. Those charts were, 

thereafter, relied upon by all federal agencies as the official statement of the 

United States on the subject and were provided to foreign nations upon 

request. The charts constitute a disclaimer of the United States’ jurisdiction 

seaward of the boundaries depicted. 

But the disclaimer is not decisive in all instances. As one special master 

has pointed out “the determination of national boundaries is ordinarily a 

political and not a judicial function; Jones v. United States, 137 U.S. 202 

(1890); Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948). This does not, 

however, preclude the courts from inquiring into the actual position taken 

by the sovereign in regard to specific waters, as opposed to its declared 

position.” United States v. Louisiana, Report of the Special Master dated July 

31, 1974, at 17. 

In United States v. California, the state introduced evidence of sporadic 

exercises of federal jurisdiction over areas not claimed by the federal 

government in the litigation. The Court accepted and reviewed that 

evidence and then determined that it was so questionable that the federal 

disclaimer must be decisive. United States v. California, 381 U.S. at 175. In 

so doing the Court determined that in the face of a federal disclaimer a state 

would have to produce evidence of a historic claim that is “clear beyond 

doubt.”362 Later masters found that the evidence presented to them did not 

361. United States v. Louisiana, Report of the Special Master of July 31, 1974, at 16. 

362. Specifically, the Court said that “we are reluctant to hold that such a disclaimer would be decisive in 

all circumstances, for a case might arise in which historic evidence was clear beyond doubt. But in the case 

before us, with its questionable evidence of continuous and exclusive assertions of dominion over the disputed 

waters, we think the disclaimer decisive.” United States v. California, 381 U.S. at 175. See also: United States v. 

Louisiana, 394 U.S. at 28-29. 
326 Shore and Sea Boundaries 

meet that standard and accepted the federal disclaimer. United States v. 

Louisiana, Report of the Special Master of July 31, 1974, at 22; and United 

States v. Florida, Report of the Special Master of January 18, 1974, at 46. The 

findings of both were adopted by the Supreme Court. United States v. 

Louisiana, 420 U.S. 529 (1975); United States v. Florida, 420 U.S. 531 (1975). 

However, a federal disclaimer will not be decisive if it comes only after 

historic title has ripened. In United States v. California, the Supreme Court 

said that “the national responsibility for conducting our international 

relations obviously must be accommodated with the legitimate interests of 

the states in the territory over which they are sovereign. Thus a contraction 

of a State’s recognized territory imposed by the Federal Government in the 

name of foreign policy would be highly questionable.” 381 U.S. at 168. In 

that instance the Court was discussing the United States’ decision not to 

adopt straight baselines. However, it used the same reasoning in reference 

to historic water claims on the Louisiana coast. There it said that “the 

Convention was, of course, designed with an eye to affairs between nations 

rather than domestic disputes. But, as suggested in United States v. 

California, it would be inequitable in adopting the principles of 

international law to the resolution of a domestic controversy, to permit the 

National Government to distort those principles, in the name of its power 

over foreign relations and external affairs, by denying any effect to past 

events.” 394 U.S. at 77.363 

Interestingly, neither California nor Louisiana was able to establish a 

past practice that supported its claim. However, the issue again arose when 

Mississippi and Alabama claimed that Mississippi Sound qualified as 

historic inland waters. There the states introduced evidence of historic 

claims going back to the Louisiana Purchase, including statements from the 

federal government that the Sound was inland waters. The federal 

disclaimer, by contrast, did not come until publication of the Coastline 

Committee charts in 1971. The master concluded that historic title had 

ripened prior to that disclaimer and that, given the Court’s statement in the 

California and Louisiana decisions, could not be denied thereafter. Report of 

April 9, 1984 at 46-48. The Supreme Court agreed. Alabama and Mississippi 

Boundary Cases, 470 U.S. 93, 112 (1985). We turn now to a review of the 

elements that must be proven to establish historic title. 

363. In a footnote to that statement the Court added that “it is one thing to say that the United States 

should not be required to take the novel, affirmative step of adding to its territory by drawing straight baselines. 

It would be quite another to allow the United States to prevent recognition of a historic title which may already 

have ripened because of “past” events but which is called into question for the first time in a domestic lawsuit. 

The latter, we believe, would approach an impermissible contraction of territory against which we cautioned in 

United States v. California. See n.97, supra.” 394 U.S. at 77. 

Part Two 327 

The Elements of a Claim 

As previously noted, the Supreme Court has adopted the United 

Nations’ three factors as the basis for historic waters claims. These include 

(1) the exercise of authority over the area by the state claiming historic title, 

(2) the continuity of this exercise, and (3) the acquiescence of foreign 

states.364 Each of these factors will be discussed. 

The Exercise of Authority 

The type of authority that must be asserted to acquire historic title has 

been variously described as “exclusive authority,” “sovereign ownership,” 

“jurisdiction,” “dominion,” and “sovereignty.” Juridical Regime at 38-39. 

But the critical question is whether the authority claimed is consistent with 

that historically asserted. As the United Nations and the Supreme Court 

have both noted, “historic title can be obtained over territorial as well as 

inland waters, depending on the kind of jurisdiction exercised over the area. 

‘If the claimant State exercised sovereignty as over internal waters, the area 

claimed would be internal waters, and if the sovereignty exercised was 

sovereignty as over territorial sea, the area would be territorial sea.’”365 “The 

authority continuously exercised . . . must be commensurate to the claim . . 

. . A claim of inland waters is not sustained by conduct that would be 

adequately explained by a claim only of territorial sea.” Juridical Regime at 

40. See also, United States v. Alaska, 422 U.S. 184, 197 (1975). 

American practice suggests that the exercise of authority, or “claim,” can 

be proven in two ways. There may be a clearly stated federal position that 

the waters at issue are part of its territory, or there may be a history of official 

actions that are consistent only with the existence of such a claim. Of the 

numerous tidelands cases in which historic inland water claims have been 

made, only one, the Mississippi Sound litigation, involved a clearly stated 

federal acknowledgment of inland water status.366 In all other instances the 

states have sought to prove historic inland water status through activities 

said to necessarily reflect such a claim. 

364. Juridical Regime, at 13 and United States v. Louisiana, 394 U.S. 11, 23-24 (1969). 

365. United States v. Louisiana, 394 U.S. at 24 n.28, quoting from Juridical Regime, supra, at 13. 

366. The special master in the Massachusetts Boundary Case placed some reliance on Congress’s inclusion 

of the waters of Vineyard Sound in a Customs District as evidence of a federal claim. Report of the Special 

Master, October Term, 1984, at 63. However, because Customs jurisdiction has long extended seaward of 

inland waters, and inland waters were not mentioned in the statutes, the Customs District does not seem to be 

a clear federal acknowledgment of inland waters. 
328 Shore and Sea Boundaries 

ARTICULATED CLAIMS. The Alabama and Mississippi Boundary Cases 

produced the clearest example of a public, federal claim. Mississippi Sound 

is formed on three sides by the mainland of Mississippi and Alabama and 

on the fourth by barrier islands that lie approximately 10 miles offshore. 

470 U.S. at 97. (Figure 81) The Sound is shallow, “ranging in depth 

generally from 1 to 18 feet except for artificially maintained channels.” Id. 

at 102. And it is a cul-de-sac, leading only to American ports. Id. at 103. For 

these reasons, it was historically important to the nation that governed its 

shores and “of little significance to foreign nations.” Id. at 102. In accepting 

its master’s recommendation that Mississippi Sound is historic inland water, 

the Supreme Court reviewed the long history of American interest, 

including navigation improvements to “afford the advantages of internal 

navigation and intercourse throughout the United States and its Territories 

. . . .”367 Id. at 103, and the construction of fortifications on one of the 

barrier islands to defend the Sound, and commerce within it. Id. at 104. 

Figure 81. Mississippi Sound off the coasts of Alabama and Mississippi. 

(Based on NOAA Chart 11006) 

But most important to the proof of a claim were two judicial actions 

concerning Mississippi Sound. The first, involving Louisiana and 

Mississippi, continued the land boundary between those two states into 

Lake Borgne and the Sound. In that case, the Court described the Sound as 

“an enclosed arm of the sea, wholly within the United States . . .” Louisiana 

v. Mississippi, 202 U.S. 1, 48 (1906), and constructed the boundary with the 

thalweg doctrine, a principle of boundary delimitation applicable only to 

inland waters.368 “The Court clearly treated Mississippi Sound as inland 

waters . . . .” Id. at 108. 

367. Quoting from H.R. Doc. No. 427, 14th Cong., 2d Sess. (1817). 

368. The thalweg is the middle of the “deepest or most navigable channel, as distinguished from the 

geographic center or a line midway between the banks.” Alabama and Mississippi Boundary Cases, 470 U.S. at 108. 

Part Two 329 

Fifty-two years later the federal government was at odds with the Gulf 

Coast states over the extent of their rights under the recently enacted 

Submerged Lands Act. In 1958 the United States filed a brief with the 

Supreme Court that conceded that “we need not consider whether the 

language ‘including the islands’ etc., would of itself include the water area 

intervening between the islands and the mainland (although we believe it 

would not), because it happens that all the water so situated in Mississippi 

is in Mississippi Sound, which this Court has described as inland water. 

Louisiana v. Mississippi, 202 U.S. 1, 48.”369 The United States went on to 

concede that “the water between the islands and the Alabama mainland is 

inland water; consequently we do not question that the land under it 

belongs to the State.” Id. at 109, quoting, again, from the United States’ Brief. 

In its Alabama and Mississippi Boundary Cases decision, the Court opined 

that “if foreign nations retained any doubt after Louisiana v. Mississippi that 

the official policy of the United States was to recognize Mississippi Sound 

as inland waters, that doubt must have been eliminated by the unequivocal 

declaration of the inland water status of Mississippi Sound by the United 

States in an earlier phase of this very litigation [just quoted].” Id. at 108-

109.370 These federal concessions distinguish the Mississippi Sound 

litigation from most tidelands cases involving historic water issues. They 

were found to constitute the federal claim that is usually missing.371 

The Massachusetts Boundary Case is the only other tidelands case in 

which historic title has been proven. There Special Master Hoffman found 

that federal legislation that included Vineyard Sound in a Customs District 

constituted a claim to its waters.372 (Figure 82) 

369. Alabama and Mississippi Boundary Cases, at 109, quoting from Brief for United States in Support of 

Motion for Judgment on Amended Complaint in United States v. Louisiana, October Term 1958, Number 10 

Original, at 254. 

370. To that statement the Court appended a reference to yet another official concession, saying “the 

United States also acknowledged that Mississippi Sound constituted inland waters in a letter written by the 

secretary of the interior to the governor of Mississippi on October 17, 1951, confirming that the oil and gas 

leasing rights inside the barrier islands belonged to the State of Mississippi.” Id. at 109 n.11. 

371. There is no doubt that the federal statements in 1951 and 1958 were not based on any federal historic 

claim to Mississippi Sound as inland water. Rather, they arose from the fact that prior to the adoption of the 

Convention’s definitions the United States had proposed principles for juridical bay delimitation that would 

have closed Mississippi Sound as inland water without a historic waters claim. Because those principles 

represented the United States’ position on boundary delimitation in 1953, the federal government argued in 

United States v. California that they should be employed as evidence of congressional intent in the Submerged 

Lands Act. It was not until 1965 that the Court rejected that contention and adopted the Convention’s 

definitions for Submerged Lands Act purposes. United States v. California, 381 U.S. 139 (1965). Four years later 

the Court made clear the United States would not be bound by positions taken before the California decision, 

and similar statements regarding the Louisiana coastline were not held against it. Louisiana Boundary Case, 394 

U.S. 11, 73-74 n.97 (1969). Nevertheless, in the Alabama and Mississippi Boundary Cases, the Court made the 

critical distinction that “the significance of the United States’ concession in 1958 is not that it has binding effect 

in domestic law, but that it represents a public acknowledgment of the official view that Mississippi Sound 

constitutes inland waters of the Nation.” Alabama and Mississippi Boundary Cases, at 110. 

372. Massachusetts Boundary Case, Report of the Special Master, October Term 1984, at 62, citing to Act of 

July 31, 1789, 1 Stat. 29, 31. 
330 Shore and Sea Boundaries 

Figure 82. Vineyard Sound, Massachusetts, found to be historic inland waters. 

(Based on NOAA Chart 13200) 

More important to his entire analysis, however, are two Massachusetts 

statutes and a United States Supreme Court opinion. In 1859 the 

Massachusetts legislature enacted a statute that closed “arms of the sea” of 

no more than 2 marine leagues (6 nautical miles) in width and claimed 

jurisdiction 1 marine league seaward of such lines. Massachusetts Acts of 

1859, Ch. 289. Under this statute Vineyard Sound became inland waters. 

Master’s Report at 58. In 1881 the state enacted legislation that directed the 

Harbor and Land Commissioners to prepare reports and charts depicting 

the boundaries created by the 1859 statute. Massachusetts Acts of 1881, Ch. 

196. Master’s Report at 59. Those charts were prepared and showed 

Vineyard Sound as inland waters. 

The charts also enclosed Buzzards Bay and shortly thereafter a fisherman 

was convicted by the state for violating its regulations in that water body. 

The defendant challenged the state’s jurisdiction but the Supreme Court 

upheld the conviction, ruling that a state may assert jurisdiction over bays 

no more than 6 miles wide at their mouths. Manchester v. Massachusetts, 139 

U.S. 240, 257 (1891). Interestingly, the charts that were produced pursuant 

to Massachusetts’ 1881 legislation were introduced as evidence in the case, 

including one that depicted the inland water lines for both Buzzards Bay 

and Vineyard Sound. Special Master’s Report at 59. Almost a century later, 

Part Two 331 

the master found that the federal and state actions constitute a claim to 

historic title.373 

Two recent tidelands decisions leave an interesting question as to the 

significance of long abandoned juridical bay principles to historic water 

issues. 

Prior to 1958 there was no universally recognized set of principles for 

determining what waters are inland by operation of law. Nations toyed with 

various theories and made proposals in international fora. For its part, the 

United States considered at least two means of dealing with waters between 

the mainland and barrier islands in the first half of this century. One of 

those was to treat as inland “those areas between the mainland and off-lying 

islands that are so closely grouped that no entrance exceeded 10 

geographical miles.” Alabama and Mississippi Boundary Cases, 470 U.S. 93, 

106 (1985). In that case the Supreme Court, adopting the findings of its 

special master, determined that “this 10-mile rule represented the publicly 

stated policy of the United States at least since the time of the Alaska 

Boundary Arbitration in 1903,” id. at 106-107, until our ratification of the 

Convention in 1961. Id. at 106. The Court went on to emphasize that the 

United States had widely published its preference for the principle such that 

foreign nations were put on notice of its use here. Id. at 107. 

The federal government objected that juridical principles are not 

sufficiently specific to support historic waters claims. The Court responded 

that as to Mississippi Sound the general principles “were coupled with 

specific assertions of the status of the Sound as inland waters.” Id.374 

Nevertheless, the juridical position seemed to play an important role as the 

Court dealt with the question of foreign acquiescence and the Sound was 

ruled “inland.” 

Alaska relied upon the Mississippi Sound decision in its claim that 

waters between the Arctic coast and barrier islands are also inland. Unlike 

Mississippi and Alabama, Alaska had no specific history of prior Supreme 

Court decisions upon which to base a historic waters claim. What it did 

instead was point to the Court’s language in the California tidelands case, 

warning against an impermissible contraction of state territory, and the 

Court’s finding in the Mississippi Sound case that the United States 

employed the 10-mile rule from 1903 until at least 1961. Alaska concluded 

373. The federal government did not take exception to the master’s recommendations with respect to 

Vineyard Sound, in part because the conclusion had almost no effect on the extent of state jurisdiction. Because 

of that, the subsequent Supreme Court hearings did not include the Vineyard Sound issue. United States v. 

Maine (Massachusetts Boundary Case), 475 U.S. 89 (1986). 

374. Those “assertions” were (1) the Supreme Court’s determination that the Sound is inland water in 

Louisiana v. Mississippi, 202 U.S. 1 (1906); and (2) an early federal concession in United States v. Louisiana, 

Number 10 [later Number 9] Original. 
332 Shore and Sea Boundaries 

that its own Stefansson Sound would have been considered inland waters at 

the time of Alaskan Statehood, in 1959, and could not thereafter be taken 

away by a change in federal delimitation policy. (Figure 83) 

Figure 83. Stefansson Sound, Alaska. The sound is created by islands within 

10 miles of each other and the mainland. (After Report of Special Master J. 

Keith Mann, Figure 3.2 ) 

Much of Alaska’s argument turned on the Supreme Court’s finding in 

the Mississippi Sound case that federal delimitation policy had been 

consistent at least from 1903 to 1961. Alaska and the United States went to 

great lengths to, respectively, prove and disprove that proposition. 

Ultimately Special Master Mann concluded that at least from 1930 until 

1949 the United States had not used the 10-mile rule.375 The Supreme 

Court agreed and denied Alaska’s claim. Distinguishing the Mississippi 

Sound situation the Court said that “variation and imprecision in general 

375. In fact, during that time the United States was proposing an entirely different principle in 

international circles, one that would have treated Mississippi Sound and similar waters as territorial rather than 

inland. United States v. Alaska, 521 U.S. 1, 17 (1997). 

Part Two 333 

boundary delimitation principles become relevant where, as here, a State 

relies solely on such principles for its claim that certain waters were inland 

waters at statehood.” United States v. Alaska , 521 U.S. 1, 15 (1997). 

The role of past delimitation practice in historic water determinations 

may need additional consideration. In its most recent decision on the issue 

the Supreme Court said that “[u]nder the Convention, a nation’s past 

boundary delimitation practice is relevant in a narrow context: specifically, 

when a nation claims that certain waters are ‘historic’ inland waters under 

Article 7(6) of the Convention.” Id. at 11. However, it went on to note that 

“we have never sustained a State’s claim to submerged lands based solely on 

an assertion that the United States had adhered to a certain general 

boundary delimitation practice at the time of statehood.” Id. at 12. Taking 

the Mississippi Sound and Alaska cases together we may feel some 

confidence with the following. The admonition from the California and 

Louisiana cases remains; the government may not be allowed to abandon a 

juridical bay policy merely to gain advantage over a state in litigation. A 

consistent juridical policy by the United States that would have treated 

waters as inland will support a historic water claim, but only if 

supplemented by independent evidence of a claim to the water body at 

issue. The 10-mile rule was not such a policy. 

ACTIVITIES CONSISTENT WITH A CLAIM. Efforts to prove a historic 

water claim in the absence of such specific statements have, to date, been 

unsuccessful. A number of states have introduced evidence of assertions of 

jurisdiction and alleged that they are consistent only with the conclusion 

that the waters involved were historically claimed by the United States. 

Typically these were assertions of jurisdiction over activities that a coastal 

state may control beyond its inland waters. As such, they were found not to 

be commensurate with the inland water claim being made as required by 

international law and the Supreme Court. 

Fisheries Enforcement. Most common has been evidence of fisheries 

enforcement. In contending that Cook Inlet is historic inland waters, Alaska 

relied heavily on evidence of fisheries enforcement, both federal and state. 

The District Court relied upon that evidence in ruling for the state, but the 

Supreme Court noted that international law permits a coastal state to 

regulate fishing not only in its inland waters but in the territorial sea and 

beyond. United States v. Alaska, 422 U.S. 184, 199 (1975). The Court 

opined that “it is far from clear, however, that the District Court was correct 

in concluding that the fact of enforcement of fish and wildlife regulations 

was legally sufficient to demonstrate the type of authority that must be 

exercised to establish title to a historic bay,” id. at 196, and concluded that 

“the enforcement of fish and wildlife regulations, as found and relied upon 

by the District Court, was patently insufficient in scope to establish historic 
334 Shore and Sea Boundaries 

title to Cook Inlet as inland waters.” Id. at 197.376 Louisiana was, likewise, 

unsuccessful in establishing a historic claim based, among other things, on 

fisheries regulation. United States v. Louisiana, Report of the Special Master 

of July 31, 1974 at 20-21.377 

Oyster Leases. Other assertions of wildlife management authority have 

been equally unsuccessful as evidence of a historic waters claim. Louisiana 

relied upon its oyster leases within 3 miles of the coast. In discounting the 

significance of that evidence the master reasoned that “traditionally 

international law has recognized the right of the coastal state to control 

fishing, including oystering, within its territorial sea. At all times pertinent 

to these proceedings, the United States has claimed a territorial sea of at 

least three miles from the low-water mark in the areas where these leases 

were granted, and therefore they were entirely consistent with that claim.” 

Report at 19. 

Mineral Leases. Louisiana and Florida relied on offshore mineral leases 

to buttress their historic claims. Most such leases were entered after 

President Truman claimed exclusive rights to mineral resources on our 

continental shelf in 1945.378 As Special Master Armstrong pointed out in 

the Louisiana case, these leases “were issued after the United States claimed 

the resources of the entire continental shelf, and therefore could not put any 

nation on notice that an historic inland waters claim was being made.” 

Report of July 31, 1974, at 20.379 Special Master Maris followed the same 

reasoning, saying “nor do I think that they afford evidence of a use adverse 

to foreign nations in light of the accepted view in recent years that maritime 

nations have special rights in the bed of the continental shelf off their 

coasts.” United States v. Florida, Report of the Special Master of January 18, 

1974, at 46. 

Pollution Regulations. State offshore pollution regulations have also been 

insufficient. As one special master noted “in the absence of conflicting 

federal regulations, a state has power to control pollution in its territorial 

waters if it may affect its inland waters or its shore (see Askew v. American 

Waterways Operators, Inc., 411 U.S. 325 [1973]). Any acts of the State of 

Louisiana in connection with pollution control in waters off its shoreline 

were entirely consistent with the character of those waters as territorial sea, 

376. This is especially true if the enforcement has only been against American vessels, because “the 

United States can and does enforce fish and wildlife regulations against its own nationals, even on the high 

seas.” United States v. Alaska, 422 U.S. at 198. 

377. The master’s recommendations were later adopted by the Court. United States v. Louisiana, 420 U.S. 

529 (1975). 

378. Proclamation No. 2667 (59 Stat. 884) September 28, 1945. 

379. Other leases, made prior to the Truman Proclamation, were within the territorial sea. Id. at 19. 

Part Two 335 

and therefore do not furnish a basis for establishing them as inland water.” 

Louisiana Boundary Case, Report of the Special Master of July 31, 1974, at 21. 

Navigation Regulations. Finally, coastal states have twice asserted that 

navigation regulations are evidence of a historic claim. In the Louisiana 

Boundary Case the state pointed to the Coast Guard’s “Inland Water Line.” A 

little background may be helpful. Seagoing vessels are subject to two 

different sets of traffic rules, known as “Rules of the Road,” depending upon 

their location. “Inland Rules” are applicable in inland waters and many 

nearshore coastal areas. Farther offshore the “International Rules” apply. 

These areas of application are divided by a series of straight lines, shown on 

nautical charts, that together are known as “The Inland Water Line.” The 

line segments are located with an eye toward safety of navigation and ease 

of application for the mariner at sea. The Coast Guard makes no effort to 

conform the line to the actual limits of inland waters, as that term is used 

in the Convention and the Submerged Lands Act. 

Nevertheless, Louisiana apparently could not resist the similarity of 

nomenclature and argued that all waters landward of the Coast Guard’s 

“Inland Water Line” had been historically claimed by the United States as 

inland. The Court dismissed the allegation without reference to its special 

master. It concluded that navigation regulations suffer from the same 

infirmity as does fisheries enforcement when offered as evidence of an 

inland water claim. According to the Court “it is universally agreed that the 

reasonable regulation of navigation is not alone a sufficient exercise of 

dominion to constitute a claim to historic inland waters. On the contrary, 

control of navigation has long been recognized as an incident of the coastal 

nation’s jurisdiction over the territorial sea.” 394 U.S. at 24.380 And, 

“because it is an accepted regulation of the territorial sea itself, enforcement 

of navigation rules by the coastal nation could not constitute a claim to 

inland waters . . . .” Id. at 25. 

It happens that the Coast Guard’s Inland Water Line suffers from a 

second defect when asserted in support of a historic inland water claim. It 

is accompanied by a specific disclaimer of jurisdictional consequence. The 

Court noted that “for at least the last 25 years, during which time Congress 

has twice re-enacted both the International Rules and Inland Rules, the 

responsible officials have consistently disclaimed any but navigational 

significance to the ‘Inland Water Line.’ When the line was for the first time 

completed off the entire Louisiana shore, the commandant of the Coast 

Guard declared: ‘the establishment of descriptive lines of demarcation is 

380. Citing to Article 17 of the Convention on the Territorial Sea, which requires that “foreign ships 

exercising the right of innocent passage [in the territorial sea] shall comply with the laws and regulations 

enacted by the coastal State . . . and, in particular, with such laws and regulations relating to transport and 

navigation.” As the Court notes, Judge Jessup cites the United States’ Inland Rules as an example of such 

regulation. Id. n.29, quoting Jessup, The Law of Territorial Waters and Maritime Jurisdiction 122 n.37 (1927). 
336 Shore and Sea Boundaries 

solely for the purposes connected with navigation and shipping . . . these 

lines are not for the purpose of defining Federal or State boundaries, nor do 

they define or describe Federal or State jurisdiction over navigable waters.’” 

United States v. Louisiana, 394 U.S. at 27. The Court concluded that “no 

historic title can accrue when the coastal nation disclaims any territorial 

reach by such an exercise of jurisdiction.” Id. 

Rhode Island and New York both argued that their pilotage statutes, 

requiring vessels to take on mariners with local expertise before transiting 

Block Island Sound, supported a historic inland water claim to that water 

body. Relying heavily on the Court’s Louisiana decision, and finding the 

pilotage requirement to be a reasonable regulation of navigation, the special 

master concluded that it did not support a historic inland water claim. 

United States v. Maine, et al. (Rhode Island/New York), Report of the Special 

Master, October Term 1983, at 16-17. 

Additional Considerations. The following are additional considerations 

that may be relevant to a historic claim. Although historic waters, if proven, 

are considered to be a claim of the United States, the historic events used to 

prove such a claim need not have involved federal officials. In United States 

v. Louisiana the Court made clear that assertions of jurisdiction by state 

officials could be used as evidence of a historic claim. 394 U.S. at 76-78. 

Private actions, however, lend no weight to a claim. The State of Alaska 

introduced evidence of private “enforcement” activity in the Cook Inlet 

litigation, including a Russian fur trader’s effort to discourage foreign 

competition. The Supreme Court reasoned that “the incident of the fur 

trader’s firing on an English vessel near Port Graham might be some 

evidence of a claim of sovereignty over the waters involved, but the act 

appears to be that of a private citizen rather than of a government official.” 

United States v. Alaska, 422 U.S. 184, 191 (1975). And it later stated that 

“the acts of a private citizen cannot be considered representative of a 

government’s position in the absence of some official license or other 

government authority.” Id. at 203. To be evidence of a historic waters claim, 

assertions of jurisdiction must have been made by an authorized officer. 

To constitute evidence of an extraordinary geographic claim, assertions 

of jurisdiction must be made against foreign nationals. The United States, 

and nations generally, have personal jurisdiction over their citizens 

wherever they may be found.381 That is to say, an American operating on the 

high seas is not beyond the legitimate reach of American law. Consequently 

enforcement on the high seas, against Americans, does not put foreigners 

on notice that the particular geographic area might be claimed by the 

United States. 

381. See: Skiriotes v. Florida, 313 U.S. 69 (1940). 

Part Two 337 

American courts have often repeated this requirement. In Civil 

Aeronautics Board v. Island Airways, Inc., involving a historic waters 

allegation, the court declared that sovereignty must be exercised by deeds 

such as “keeping foreign ships or foreign fishermen away from the area, or 

taking action against them . . . .” 235 F.Supp. 990, 1004-1005 (D.Ha. 1964), 

aff’d 352 F.2d 735 (9th Cir. 1965). The question also arose in the first 

California tidelands litigation, where the state introduced evidence of 

limited fisheries and criminal jurisdiction over Americans in waters being 

claimed as historic. The Supreme Court’s special master noted that “these 

instances of assertion of right by the State of California in the courts did not 

constitute an assertion of exclusive authority over these waters such as might 

be the occasion for objection by foreign governments or action by the 

United States in our international relations . . . there is nothing to indicate 

that the defendants were citizens of a foreign country. Under these 

circumstances, absence of objection from foreign countries cannot be 

regarded as acquiescence . . . .” United States v. California, Report of the 

Special Master, October Term 1952, at 35. The master’s recommendations 

were adopted by the Court. United States v. California, 381 U.S. 139, 172-

175 (1965). 

The United States has relied upon this principle in its own opposition 

to foreign historic waters claims. In 1957 the Soviet Union issued a decree 

declaring Peter the Great Bay to be historic inland waters, basing its claim 

on its “Rules of Maritime Fisheries In The Territorial Waters of the GovernorGeneralship of Priamurye,” published by the Russian government in 1901. 

The United States protested, warning against encroachments on the high 

seas, and stating that a claim of historic title could not be based on internal 

regulations of the Russian government, which were not communicated to 

the governments of other states. XXXVIII Bulletin, Department of State, No. 

978, Mar. 24, 1958, p. 461, quoted and discussed at, 4 Whiteman, supra, at 

250-257. 

The United States had made a similar objection to Spanish maritime 

claims around Cuba nearly a century earlier. In an 1863 letter to the 

Spanish minister the secretary of state took the position that “[n]ations do 

not equally study each other’s statute books and are not chargeable with 

notice of national pretentions resting upon foreign legislation.” 1 Moore, 

International Law Digest 709-710 (1906).382 

In sum, to constitute evidence of historic waters claims, assertions of 

jurisdiction must have been made against foreign citizens or vessels to be 

clear that they do not simply represent extraterritorial exercises of personal 

jurisdiction and to put foreign nations on notice of a territorial claim. 

382. See also: Juridical Regime at paragraphs 89-90. 
338 Shore and Sea Boundaries 

The Continuity of the Claim 

To support a finding of historic waters a claim must have existed, and 

been consistently asserted, over a substantial period of time. The Juridical 

Regime lists a number of characterizations that have been suggested, 

including: “continuous usage of long standing” (Institute of International 

Law, 1928), “established usage” (Harvard Draft, 1930), and “continued and 

well-established usage” (American Institute of International Law, 1925). 

Juridical Regime at 44. American practice has done little to make the 

requirement more specific. 

As for the necessary age of a claim, the Supreme Court said in the 

Alabama and Mississippi Boundary Cases that the “United States has effectively 

exercised sovereignty over Mississippi Sound as inland waters from the time 

of the Louisiana Purchase in 1803 until 1971 . . . .” 470 U.S. at 102. 

Although the length of the claim was not specifically at issue in that case, 

the Court clearly considered 168 years to be sufficient. That would seem to 

go without saying. 

Florida made a historic waters claim based on an 1868 constitutional 

boundary that the state said extended more than 3 miles offshore. Special 

Master Maris acknowledged that “if its construction of the boundary 

language is correct, which I have concluded it is not, this 1868 origin of its 

claim would certainly be remote enough in time to satisfy the second 

criterion for historic inland waters.” United States v. Florida, Report of the 

Special Master of January 18, 1974, at 42. Again, one hundred plus years 

would seem sufficient. 

Finally, in Massachusetts’ successful adjudication of Vineyard Sound, 

the special master found claims going back to the first Congress of the 

United States and state actions more than 100 years ago. The usage element 

was not even contested. 

We know of no court that has accepted a claim as adequate but 

concluded that it is too recent to establish historic rights. Closely related, 

however, are examples of alleged long standing claims that have been only 

sporadically enforced. California relied upon a criminal prosecution for 

activities in claimed historic waters. The Supreme Court described it as “the 

only assertion of criminal jurisdiction of which we have been made aware.” 

United States v. California, 381 U.S. 139, 174-175 (1965).383 The Court 

found no historic title. 

Nine years later its special master looked back at that language in his 

review of similar evidence from the State of Louisiana. Referring to 

testimony of a single arrest along that coast he concluded that “it can hardly 

383. Referring to People v. Stralla, 14 Cal.2d 617, 96 P.2d 941 (1939). 

Part Two 339 

be said that this isolated incident meets the tests set forth earlier for 

establishing sovereignty sufficient to support a claim of historic waters. 

Certainly no continuity is indicated . . . .” United States v. Louisiana, Report 

of the Special Master of July 31, 1974, at 20- 21. 

Continuity encompasses two elements. The claim must be long 

standing. No exact time can be stated but 100 years would seem 

sufficient.384 And the claim must have been consistently asserted over the 

period of its existence. 

Foreign Responses to the Claim 

The third requirement for historic water status concerns foreign 

response to the exercise of sovereignty by the coastal state. Juridical Regime 

at 55.385 International authority is split on whether the attitude of foreign 

states must be acquiescence or merely the absence of opposition.386 Id. at 

13. Recognizing this split in authority, the Supreme Court has opted for the 

more stringent requirement of acquiescence. United States v. California, 381 

U.S. 139, 172 (1965); United States v. Louisiana, 394 U.S. 11, 24 n.27 (1969). 

So has the Department of State in its dealings with foreign nations.387 

However, acquiescence requires more than a mere failure to protest a 

claim. In order to establish acquiescence it must be shown that foreign 

countries knew of the claim or, because of its notoriety, their knowledge 

may be presumed. Juridical Regime at 54.388 The Supreme Court has 

followed this approach, saying in United States v. Alaska that “the failure of 

other countries to protest is meaningless unless it is shown that the 

governments of those countries knew or reasonably should have known of 

the authority being asserted.” 422 U.S. at 200.389 And, “in the absence of 

384. The Juridical Regime of Historic Waters, Including Historic Bays, supra, at 45, states that “no precise 

length of time can be indicated as necessary to build the usage on which historic title must be based. It must 

remain a matter of judgement when sufficient time has elapsed for the usage to emerge.” 

385. In support of its statement the United Nations cited the International Court of Justice’s reference to 

“the notoriety essential to provide the basis of historic title” in the Anglo-Norwegian Fisheries Case, [1951] I.C.J. 

Reports 116. 

386. In fact, the United Nations’ Report indicated that “there is substantial agreement that inaction on the 

part of foreign States is sufficient to permit an historic title to a maritime area to arise by effective and continued 

exercise of sovereignty over it by the coastal State during a considerable time.” Juridical Regime at 49. 

387. For example, when the United States protested the Soviet Union’s historic claim to Peter the Great 

Bay it reiterated that “a degree of acceptance on the part of the rest of the world is required to justify the claim.” 

4 Whiteman at 256. 

388. The Report concludes that “there seem to be strong reasons to hold that notoriety of the exercise of 

sovereignty, in other words, open and public exercise of sovereignty, is required rather than actual knowledge 

by the foreign States . . . .” Juridical Regime at 55. 

389. See also: Report of the Special Master in the Alabama and Mississippi Boundary Cases of April 9, 1984, 

at 54 and subsequent Supreme Court decision in that action, 470 U.S. 93 (1985). 
340 Shore and Sea Boundaries 

any awareness on the part of foreign governments of a claimed territorial 

sovereignty over lower Cook Inlet, the failure of those governments to 

protest is inadequate proof of the acquiescence essential to historic title.” 

Id. There was no evidence that foreign governments were aware of alleged 

assertions of jurisdiction in Cook Inlet nor were those assertions such that 

foreign governments should have been aware of them.390 

In contrast, the special master and the Supreme Court agreed that 

foreign countries were specifically aware of the United States’ claim to 

historic waters in Mississippi Sound. The Court said, for example, that the 

10-mile rule for closing waters between the mainland and off-lying islands 

“represented the publically stated policy of the United States at least since 

the time of the Alaska Boundary Arbitration in 1903. There is no doubt that 

foreign nations were aware that the United States had adopted this policy. 

Indeed, the United States’ policy was cited and discussed at length by both 

the United Kingdom and Norway in the celebrated Fisheries Case (U.K. v. 

Nor.), 1951 I.C.J. 116.” 470 U.S. at 107. The Court went on to adopt its 

master’s recommendation that Mississippi Sound is historic inland water, 

finding that all three of the elements of historic title had been proven.391 

Special Master Hoffman, in the Massachusetts Boundary Case, found 

acquiescence in the presumed knowledge of foreign states followed by a 

failure to protest. Early in the litigation the parties stipulated that “by the 

outbreak of World War I, the major European powers, all of whose foreign 

ministries had legal departments charged with ‘monitoring and analyzing’ 

legal developments, had ‘de facto’ knowledge of Manchester [v. Massachusetts] 

and its contents.”392 The master then accepted the state’s contention that 

390. Likewise, Special Master Armstrong found that there was no “notice to or acquiescence on the part 

of the Mexican Government” with respect to Louisiana’s sole assertion of jurisdiction over a foreign vessel in 

East Bay being claimed as historic. United States v. Louisiana, Report of the Special Master of July 31, 1974, at 

20. He recommended against the historic waters claim and the Supreme Court adopted that recommendation. 

United States v. Louisiana, 420 U.S. 529 (1975). 

391. The Court’s later decision in United States v. Alaska, 521 U.S. 1 (1997), raises an interesting question 

about the logic of the Mississippi Sound conclusion. In Alaska the Court agreed with Special Master Mann that 

in fact the United States had not consistently employed a 10-mile rule that created inland waters landward of 

barrier islands for the entire period from 1903 until ratification of the Convention in 1961. In fact, both found 

the United States had espoused a distinctly different principle from at least 1930 until 1949. Under that 

proposal waters landward of barrier islands but more than 3 miles from any land would be “assimilated to the 

territorial sea.” In other words, areas such as Mississippi Sound would be territorial seas rather than inland 

water, a result of little comfort to coastal states in the tidelands cases. Of course the Court emphasized in the 

Mississippi Sound case that the United States’ claim was supported separately by its decision in Louisiana v. 

Mississippi, 202 U.S. 1 (1906), and early federal positions in United States v. Louisiana, Number 10 (later Number 

9) Original. Nevertheless, the Court seems to rely on its misstated tenure of the 10-mile rule to satisfy the 

requirement of foreign knowledge of a claim. Its decision in Louisiana v. Mississippi and the federal concession 

in United States v. Louisiana would appear to be the kind of internal governmental statements that both the 

Court and the State Department contend do not put foreign governments on notice of a claim. If, contrary to 

the Mississippi Sound decision, the 10-mile rule did not represent a continuity for the period described, no 

other evidence in the case would seem to fill the requirement. It is, of course, too late in the day to change the 

outcome in Mississippi Sound. It is likely however that future historic claimants will not be able to rely on the 

10-mile rule to the extent that Mississippi and Alabama did. 

392. Report of October Term 1984, at 60. 

Part Two 341 

this would include “the text of the 1881 Massachusetts statute, the fact that 

the Supreme Court had upheld the Massachusetts statute as valid under 

both national and international law, and the fact that Massachusetts 

maintained charts showing its claims in official repositories.” Report of 

October Term 1984, at 60. 

In addition, the master concluded that both France and England, the 

major maritime powers of the day, could be presumed to know of federal 

claim to customs waters as early as 1789. Both, he explained, were involved 

in conflicts that made it important to know where American neutrality 

would extend. They would have been put on notice of such claims by 

Attorney General Randolph’s opinion on the Delaware Bay claim and would 

have researched congressional actions and come upon the customs claims. 

Id. at 63. 

Foreign acquiescence is essential to a successful historic waters claim. It 

can be proven, under American precedents, only through an interested 

nation’s failure to protest when it knew, or reasonably should have known, 

of the claim. 

A Fourth Element 

The Juridical Regime discusses the view of some writers and governments 

that “geographic configuration, requirements of self-defense, or other vital 

interests of the coastal state may justify a claim of historic bay status without 

the necessity of establishing long usage.” Juridical Regime at 56-58. It goes 

on to conclude, however, that “it does not make sense for ‘historic title’ to 

be claimed in circumstances where the historic element is wholly absent.” 

Alabama and Mississippi Boundary Cases, 470 U.S. at 105, citing to Juridical 

Regime at 56- 58.393 Nevertheless, the Supreme Court concluded that such 

factors may “fortify a claim to ‘historic bay’ status that is based on usage.” 

470 U.S. at 106.394 The Court pointed out that Mississippi Sound is 

enclosed, extremely shallow, and leads only to American ports. It is of great 

importance to the United States and of little or no significance to foreign 

nations. And it has been defended by fortifications constructed by the 

United States. Id. at 102-106. To top it off, the Court noted that almost 

393. Nor will these characteristics substitute for assertions of exclusive jurisdiction. In United States v. 

California Special Master William H. Davis reported that “much of the testimony submitted to the Special 

Master in these proceedings dealt with the geography, the history and the economic importance of the water 

area in dispute . . . . if there had been any assertion of exclusive jurisdiction of these waters by or on behalf of 

the United States, then this testimony would in general be relevant to the question whether these areas present 

special characteristics such as would justify in international law an assertion of exclusive sovereignty. But if my 

factual conclusions are correct [that the required assertions are missing], then the testimony is irrelevant . . . .” 

United States v. California, Report of the Special Master of October 14, 1952, at 39. 

394. Here the Court cited to the Juridical Regime’s reference to Bourquin’s view that “the character of a bay 

depends on a combination of geographical, political, economic, historical and other circumstances.” Juridical 

Regime at 25 (translating and quoting Bourquin, Les Baies Historiques). 470 U.S. at 106 n.7. 
342 Shore and Sea Boundaries 

identical justification had been used by the United States in claiming 

historic inland waters in Delaware Bay. There Attorney General Edmund 

Randolph asked rhetorically, “what nation can be injured in its rights by the 

Delaware being appropriated to the United States? And to what degree may 

not the United States be injured, on the contrary ground? It communicates 

with no foreign dominion; no foreign nation has ever before had a 

community of right in it, as if it were a main sea; under the former and 

present governments, the exclusive jurisdiction has been asserted.” 1 Op. 

Atty. Gen. 32, 37 (1793), quoted at 470 U.S. at 103 n.4.395 

A word should be added about the “geographic” element. Article 7(6) 

of the Convention refers only to historic “bays.” The United Nations’ study 

is entitled Juridical Regime of Historic Waters, Including Historic Bays. It is 

uniformly understood that a water body need not qualify as a juridical bay 

if it has been historically claimed. But whether, and to what degree, it may 

deviate from the usual criteria for juridical inland water status is not clear. 

American practice gives no help in determining how “bay-like” a water body 

must be to be eligible for a historic claim. In each contested case the waters 

at issue were sufficiently enclosed and the United States did not challenge 

state claims on that ground. It should not, however, be assumed that a 

completely unprotected area of open sea could qualify for historic water 

status even if the three criteria discussed above were met. That circumstance 

has yet to be tested.396 

The three international criteria for historic bay status, a claim, 

continuity, and acquiescence, have been adopted in the United States’ 

practice. The claim may be clearly stated or evidenced by assertions of 

jurisdiction. It must have been consistently made, or enforced, for a long 

enough time to constitute usage. And foreign nations must have acquiesced 

in the claim, with actual or presumed knowledge. The Supreme Court has 

dealt with historic water claims in a number of tidelands cases. It has 

recognized claims to Mississippi Sound and Vineyard Sound; it has denied 

them to Cook Inlet, Alaska, three bays in California, all of the Louisiana 

coast, much of the Florida coast, Block Island Sound, and Nantucket 

Sound.397 

395. Massachusetts also put on extensive evidence about the early use and importance of Vineyard and 

NantucketSounds to its citizenry. Nevertheless, and despite his reliance on Attorney General Randolph’s Opinion 

for other purposes, the special master did not find that it supported the inland water claim. Report at 61. 

396. In its Alabama and Mississippi Boundary Cases decision the Supreme Court explained that “in this 

opinion, the term ‘historic bay’ is used interchangeably with the term ‘historic inland waters.’ It is clear that a 

historic bay need not conform to the geographic tests for a juridical bay set forth in Article 7 of the Convention. 

See Louisiana Boundary Case, 394 U.S. 11, 75 n.100 (1969). In this case, as in that one, we need not decide how 

unlike a juridical bay a body of water can be and still qualify as a historic bay, for it is clear from the Special 

Master’s Report that, at a minimum, Mississippi Sound closely resembles a juridical bay.” 470 U.S. 93 at 101 n.2 

(1985). 

397. For comprehensive lists of internationally claimed historic waters see: Historic Bays, Memorandum by 

the Secretariat of the United Nations, A/CONF.13/1, at paragraphs 12-43; Bouchez, supra, at 27-101; and Jessup, 

supra, at 383-439. 

Part Two 343 

STRAIGHT BASELINES 

Article 4 of the Convention on the Territorial Sea and the Contiguous 

Zone provides a final means of coastline delimitation in certain geographic 

situations. It provides, in part, that “[i]n localities where the coastline is 

deeply indented and cut into, or if there is a fringe of islands along the coast 

in its immediate vicinity, the method of straight baselines joining 

appropriate points may be employed . . . .” Article 4(1).398 This geographic 

situation exists along numerous stretches of the coast of the United States. 

Employing Article 4 straight baselines in those circumstances would nearly 

always expand inland waters, encouraging the coastal states to contend that 

they should be, or have been, used in the United States. 

The question first arose in United States v. California. The state had 

claimed inland water status for the Santa Barbara Channel on other theories 

and, after the Court announced that inland waters would be defined by the 

Convention’s criteria, it added Article 4 as one of its bases. As the Court 

summarized, “California argues that because the Convention permits a 

nation to use the straight-baseline method for determining its seaward 

boundaries if its ‘coast line is deeply indented and cut into, or if there is a 

fringe of islands along the coast in its immediate vicinity,’ California is 

therefore free to use such boundary lines across the openings of its bays and 

around its islands.” United States v. California, 381 U.S. 139, 167 (1965). 

The Court responded with two principles that have guided all subsequent 

straight baseline litigation. 

First, it reiterated what would seem to be clear from the Convention. 

Article 4 is not self executing nor is its use mandatory. It is an alternative to 

the “normal” baseline of Article 3. Article 4(1)’s indication that the method 

“may be employed” means just that.399 Its use is optional. 

Second, it clearly ruled, contrary to California’s approach, that the 

federal government holds that option, not the individual states. Although 

the Convention would “permit” the United States to draw straight baselines, 

“California may not use such base lines to extend our international 

boundaries beyond their traditional international limits against the 

expressed opposition of the United States.” 381 U.S. at 168. And it 

continued, “the choice under the Convention to use the straight-base-line 

method for determining inland waters claimed against other nations is 

one that rests with the Federal Government, and not with the individual 

States.” Id. 

398. Article 4 goes on to indicate that such baselines: must follow the general direction of the coast and 

enclose only waters “sufficiently closely linked to the land domain to be subject to the regime of internal 

waters” 4(2); shall, generally, not be drawn to low-tide elevations 4(3); may take into consideration economic 

interests and usage 4(4); may not cut off another country’s territorial sea from the high seas 4(5); and must be 

clearly indicated on charts to which “due publicity” must be given 4(6). 

399. See also: Churchill and Lowe, The Law of the Sea 28 (1983). 
344 Shore and Sea Boundaries 

The Court reiterated that position four years later when it said “the 

decision whether to draw such baselines is within the sole discretion of the 

Federal Government, and the United States has not chosen to do so.” 

Louisiana Boundary Case, 394 U.S. 11, 67 (1969). And, “since the United 

States asserts that it has not drawn and does not want to draw straight 

baselines along the Louisiana coast, that disclaimer would, under the 

California decisions, be conclusive of the matter . . . .” Id. at 72.400 

The Court went on in the Louisiana Boundary Case to hold that the 

judiciary could not elect to employ Article 4, saying “the selection of this 

optional method of establishing boundaries would be left to the branches 

of Government responsible for the formulation and implementation of 

foreign policy. It would be inappropriate for this Court to review or 

overturn the considered decision of the United States, albeit partially 

motivated by domestic concern, not to extend its borders to the furthest 

extent consonant with international law.” Louisiana Boundary Case at 72- 73. 

Even so, in its California decision the Court left the door ajar for future 

straight baseline claims when it said “the national responsibility for 

conducting our international relations obviously must be accommodated 

with the legitimate interests of the States in the territory over which they are 

sovereign. Thus, a contraction of a State’s recognized territory imposed by 

the Federal Government in the name of foreign policy would be highly 

questionable.” 381 U.S. at 168. With that in mind, the Court later 

permitted Louisiana to attempt to prove that the federal government had 

effectively employed the straight baseline system sanctioned by Article 4 and 

might not be able to abandon that position “solely to gain advantage” in a 

lawsuit, citing its statement in the California case. Louisiana Boundary Case at 

74 n.97. A number of states have accepted the invitation. None has proven 

a straight baseline claim. 

The coastal states have taken two routes in their efforts to prove that the 

United States has actually used straight baseline systems. Some have 

pointed to specific lines in the sea, adopted by a variety of federal agencies 

for their own purposes, and characterized them as “straight baselines.” 

Others have asserted that juridical systems proposed by the United States 

through history amount to straight baselines and may not now be 

withdrawn. Neither approach has been successful. 

Federal Agency Lines 

A number of federal agencies have statutory obligations that have 

prompted them to draw lines in the sea. Typically these lines have been 

constructed with the particular needs of the agency in mind. They have not 

400. At the same time the Court made clear that the federal government had similar control over 

decisions to employ the concept of “fictitious bays.” That term was used to describe a pre–straight baseline 

theory by which waters landward of offshore islands might be considered inland. United States v. California, 

381 U.S. at 172; Louisiana Boundary Case, 394 U.S. at 72. 

Part Two 345 

employed consistent delimitation principles. Nor has any been proffered 

by the United States as a reflection of its official baseline position. 

Nevertheless, states have asserted that they constitute straight baseline 

systems.401 The examples are discussed individually. 

The Coast Guard Line 

Louisiana did a thorough job of ferreting out various maritime 

boundary systems adopted by federal executive departments. Its first 

example was the Coast Guard’s “Inland Water Line.” In 1895 Congress 

provided for the adoption of maritime “Rules of the Road” to govern 

navigation on the “harbors, rivers and inland waters of the United States.” 

Act of February 19, 1895, 28 Stat. 672.402 Louisiana argued first that waters 

landward of these lines are historic inland waters. The Supreme Court ruled 

otherwise, finding that “the reasonable regulation of navigation is not alone 

a sufficient exercise of dominion to constitute a claim to historic inland 

waters.” Louisiana Boundary Case, 394 U.S. 11, 24 (1969). It also pointed 

out that the Coast Guard had specifically disclaimed any boundary 

significance to the lines, id. at 27, and found “no indication that in enacting 

the navigation rules and authorizing the designation of an Inland Water 

Line Congress believed it was also determining the Nation’s territorial 

boundaries.” Id. at 30. 

Nevertheless, when the Court appointed Mr. Walter Armstrong to 

consider questions left unanswered by the opinion, including straight 

baselines, Louisiana took the opportunity to claim that the Coast Guard 

Line was a system of straight baselines. The special master noted that the 

Court found no evidence that the line had been intended or treated as a 

boundary and stated that “this would appear to conclude the matter insofar 

as the Special Master is concerned.” United States v. Louisiana, Report of the 

Special Master of July 31, 1974, at 8. Despite this conclusion, the master 

reviewed Louisiana’s arguments and reported that “lest there be any doubt 

it is now specifically held that the Inland Water Line does not constitute a 

system of straight baselines within the meaning of Article 4 of the Geneva 

Convention and therefore does not delineate the outer boundaries of 

inland waters of the United States or the State of Louisiana.” Id. at 9. The 

Court later adopted all of Special Master Armstrong’s recommendations. 

United States v. Louisiana, 420 U.S. 529 (1975). There is now no doubt that 

the Coast Guard’s Inland Water Lines do not support a historic waters or 

straight baselines claim. 

401. The Department of State recognized some time ago that “agencies of the Federal Government have 

made their own determinations for administrative purposes,” but no general determination of inland waters, 

binding government wide, had been adopted. 1 Hackworth, Digest of International Law 644-645 (1940). 

402. Those rules are now codified at 33 U.S.C. 152-232. 
346 Shore and Sea Boundaries 

Census Line 

In 1937 the United States Bureau of the Census attempted to “measure” 

the United States for purposes of the 1940 census. In so doing it adopted 

general principles for determining what waters should be included. Within 

a category denominated “State Waters,” it included waters landward of 

straight lines connecting islands within 1 mile of the coast.403 

Louisiana contended that these lines constitute a system of Article 4 

straight baselines. The special master rejected the contention, saying that 

“this determination was made, however, many years before the adoption of 

the Geneva Convention, for purposes totally unconnected with it; and the 

results were certainly never clearly indicated on charts which were given due 

publicity to the nations of the world. It therefore follows that whatever their 

validity may have been for internal purposes, the census line established in 

1937 did not constitute a system of straight baselines . . . .” Report at 11.404 

Chapman Line 

In 1950 the Supreme Court ruled that the United States had paramount 

rights to submerged lands seaward of Louisiana’s coast line. United States v. 

Louisiana, 339 U.S. 699 (1950).405 Soon thereafter the federal government 

proposed a line to implement that decision. That so-called Chapman Line, 

after then Secretary of the Interior Oscar Chapman, was based upon 

principles of coast line delimitation espoused by the United States prior to 

its adoption of the 1958 Convention and included waters landward of some 

barrier island chains.406 (Figure 84) In 1956 it was adopted in an “interim 

agreement” that the parties entered as a basis for allocating revenues from 

disputed areas pending resolution of the litigation. But Louisiana 

acknowledged in the agreement that “no inference or conclusion of fact or 

law from the said use of the so-called ‘Chapman Line’ or any other 

boundary of said zones is to be drawn to the benefit or prejudice of any 

party hereto.” Quoted in Louisiana Boundary Case, 394 U.S. at 73-74. A 

second stipulation was signed in 1971 that provided, inter alia, that 

403. This principle is a variation of a delimitation method first proposed by the United States at the 1930 

Hague Conference on the Codification of International Law. The lines are found in Proudfoot, Measurement of 

the Geographic Area, U.S. Bureau of the Census (1946). For a more complete discussion of the Census Lines, 

see 2 Shalowitz, Shore and Sea Boundaries 473-475 (1964). 

404. Article 4(6) provides that “the coastal State [nation] must clearly indicate straight baselines on 

charts, to which due publicity must be given.” 

405. This was, of course, merely to say that the Court’s opinion in United States v. California, 332 U.S. 19 

(1947), applied to other states as well. 

406. Of course the United States continued to argue that pre-Convention principles should be used to 

implement a pre-Convention statute (the Submerged Lands Act) until the Supreme Court ruled otherwise in 

United States v. California, 381 U.S. 139 (1965). For an example of the Chapman Line along portions of the 

Louisiana coast see 1 Shalowitz at 110 and 111. 

Part Two 347 

Figure 84. Portion of the Chapman Line on the Mississippi River delta. The line 

was constructed using pre-Convention principles. (From I Shalowitz, Figure 23) 

“Louisiana recognizes, however, the United States position that these are 

not wholly inland waters, and agrees that Louisiana does not and will not 

base its arguments regarding the inland status of these or any other waters 

in this or any future litigation between it and the United States, upon this 

stipulation, upon action of the United States in fixing the Chapman Line in 

this area, or upon prior concessions regarding this area made by the United 
348 Shore and Sea Boundaries 

States for the purpose of this case and the predecessor case, United States v. 

Louisiana, 339 U.S. 699.”407 

From these agreements the special master found that “the Chapman 

Line was not drawn in accordance with the principles and methods 

embodied in Article 4 of the Geneva Convention so as to give it force in 

international law.” Report at 9. “In view of the foregoing, . . . the Chapman 

Line does not meet the requirements of Article 4 of the Geneva Convention 

for a system of straight baselines, and it is now so held.” Id. at 10. 

Bird Sanctuaries 

President Theodore Roosevelt had a penchant for issuing Executive 

Orders that established federal reservations of various sorts. Often the 

orders included rough maps with hand-drawn circles depicting the areas to 

be included. Two such orders established the Tern Island and Shell Keys bird 

sanctuaries off the Louisiana coast. Each contained a map with a circular 

line enclosing the islands and surrounding waters. United States v. Louisiana, 

Report of the Special Master of July 31, 1974, at 11. Louisiana insisted that 

the lines constituted straight baselines. 

Special Master Armstrong found otherwise. He concluded that “even a 

cursory glance at these orders and the diagrams attached to them, will, 

however, serve to dissipate this impression. In neither case is there a system 

of straight lines drawn from point to point, but merely a roughly drawn 

circular line enclosing an area in which there is both land and water, a line 

having reference to no particular points of land whatsoever. The purpose is 

obviously not to establish a boundary between inland and territorial water 

but to establish a limit with which bird life will be protected . . . .” Id. at 11-

12. “These two executive orders did not establish a system of straight 

baselines within the meaning of Article 4 of the Geneva Convention.” Id. 

Louisiana v. Mississippi Decision 

In 1906 the Supreme Court resolved a dispute over the river boundary 

between those two states and its extension into Mississippi Sound. The 

Court attached to its decision three maps with lines intended to depict 

Louisiana’s offshore jurisdiction. Louisiana v. Mississippi, 202 U.S. 1 (1906). 

407. Stipulation of January 21, 1971, between Solicitor General Erwin N. Griswold for the United States 

and Attorney General Jack P. F. Gremillion for the State of Louisiana, reproduced as Appendix A-2 to the Special 

Master’s Report of July 31, 1974. The areas referred to are Chandeleur and Breton Sounds on the east side of 

the Mississippi River delta, which had been treated as inland under pre-Convention principles and lay 

shoreward of the Chapman Line. The Stipulation memorialized Solicitor General Griswold’s decision to 

maintain the federal litigation position for that area, so as not to interfere with activities begun in reliance upon 

it, despite the Supreme Court’s subsequent determination that the Convention’s principles would be applied 

and the United States would not be bound by prior concessions. 

Part Two 349 

(Figure 85) Louisiana argued in its tidelands case that these maps constitute 

a system of straight baselines.408 

Figure 85. Map included in Supreme Court decision in Louisiana v. 

Mississippi, 202 U.S. 1, 10 (1906). (Arrows along coast added) 

408. As discussed above, the Supreme Court did rely on its reasoning in that decision as evidence that 

Mississippi Sound is inland waters. In the Alabama and Mississippi Boundary Cases it looked back at the 1906 

decision, noted that it had employed inland water principles in reaching its conclusion there, and determined 

that the decision, therefore, was evidence of an inland water claim. 470 U.S. 93, 107-109 (1985). It did not 

suggest that the maps attached to the earlier decision had any legal significance. 
350 Shore and Sea Boundaries 

The special master disagreed, finding, as he had with the bird 

sanctuaries, that the lines were not constructed to establish maritime 

boundaries, were not a straight line at all but an attempt to parallel the 

coastline, and had not been drawn by the executive or legislative branches 

but by the judiciary.409 Interestingly, the same special master later was 

appointed to handle the Mississippi Sound litigation. Those states made a 

straight baselines claim, which he also rejected, but neither state based its 

arguments on the 1906 Supreme Court maps.410 

Other Executive Branch Lines 

At least one other set of agency lines has been argued to have boundary 

significance. Prior to Alaskan statehood, the federal government drew a 

series of straight lines along the coast of Alaska which, like the Coast 

Guard’s Inland Water Lines, separated regulatory regimes, this time for 

fishing. Alaska pointed to the lines not as Article 4 straight baselines but as 

evidence of a historic waters claim in the Cook Inlet case. The Supreme 

Court concluded that they were not intended as territorial boundaries, 

saying “the very method of drawing straight baselines conflicted with this 

country’s traditional policy of measuring its territorial waters by the 

sinuosity of the coast, 381 U.S., at 167-169.” United States v. Alaska, 422 

U.S. 184, 199 (1975). Although the statement was made in a historic waters 

decision, it makes clear that the fisheries lines would not have supported a 

straight baselines claim. 

No federal lines have been found to constitute Article 4 straight 

baselines. The states’ various contentions did, however, play a significant 

role in developing a more systematic process for publicizing the federal 

boundary position. In 1970 the secretary of state established a Committee 

on the Delimitation of the United States Coastline. Known as the 

“Coastline Committee” or “Baseline Committee,” the group is made up of 

representatives of federal agencies responsible for developing international 

policy and/or enforcing federal statutes off our coasts.411 In less than a year 

the Committee had produced a set of charts depicting the territorial sea 

along the entire coast of the United States. The Committee has continued 

409. The master did not expand on the latter element but it is a clear reference to the Court’s prior 

statements that boundary delimitation is to be left to the branches of government responsible for the conduct 

of foreign affairs, not the judiciary. See, for example, Louisiana Boundary Case, 394 U.S. at 72-73. 

410. Alabama and Mississippi Boundary Cases, Report of the Special Master of April 9, 1984, at 5-7. The 

states succeeded in their historic waters claims, making it unnecessary for the Supreme Court to consider the 

straight baseline arguments. Alabama and Mississippi Boundary Cases, 470 U.S. 93 (1985). 

411. The Committee is an arm of the National Security Council’s Law of the Sea Task Force. Its original 

membership included the Departments of State, Justice, Interior, Commerce, and Transportation, but other 

departments and agencies are encouraged to participate and often do so. 

Part Two 351 

its work over the ensuing 28 years, updating those charts as required. The 

original charts were distributed to United States attorneys and federal 

maritime enforcement agencies as well as to foreign governments. More 

recently, the Committee’s boundaries have been included on the National 

Ocean Service’s large-scale charts of our coast and are easily available 

through that agency and commercial sources. 

The United States’ Pre-Convention Juridical Practice 

The Supreme Court suggested in 1965 that if the United States had 

employed a straight baseline system prior to its ratification of the 1958 

Convention a subsequent “contraction of a State’s recognized territory . . . 

would be highly questionable.” United States v. California, 381 U.S. 139, 168 

(1965). It reiterated that position in 1969 saying “if that had been the 

consistent official international stance of the Government, it arguably could 

not abandon that stance solely to gain advantage in a lawsuit to the 

detriment of Louisiana.” Louisiana Boundary Case, 394 U.S. 11, 74 n.97 

(1969). 

It happens that the federal government had, over time, considered a 

number of methods for dealing with waters landward of barrier islands. 

One such scheme would have treated as inland all waters landward of 

barrier islands that are no more than 10 nautical miles apart. An area off 

the north slope of Alaska is screened by such islands, forming Stefansson 

Sound. Alaska was encouraged by the Court’s statements in California and 

Louisiana and accumulated a mass of evidence in support of its theory that 

the United States had employed this 10-mile rule at least from 1903 through 

Alaskan Statehood and could not now alter it to the state’s detriment. 

The state’s preparation was exhaustive, and in the middle of the case it 

received additional support. Special Master Armstrong concluded, in the 

Mississippi Sound case, that the United States had indeed employed the 10-

mile rule for the period urged by Alaska in its special master proceedings. 

Alabama and Mississippi Boundary Cases, Report of the Special Master of April 

9, 1984, at 53-54. Based in part upon that conclusion he recommended 

that Mississippi Sound be recognized as historic inland waters. That 

recommendation was adopted by the Court. Alabama and Mississippi 

Boundary Cases, 470 U.S. 93 (1985).412 

But the historic evidence is not so clear as suggested in the Mississippi 

Sound Report. The United States pointed out in the Alaska litigation that 

412. Interestingly the special master specifically ruled that the 10-mile policy did not prove Mississippi 

and Alabama’s straight baseline claims. Report at 5-7. Thus, Mr. Armstrong provided a factual finding in 

support of Alaska’s position but refused to take the ultimate step necessary to Alaska’s case, a conclusion that 

the 10-mile rule amounted to a straight baseline system. 
352 Shore and Sea Boundaries 

prior to 1958 the federal government had experimented with a number of 

juridical principles for dealing with waters landward of barrier islands. An 

example was its proposal to the 1930 Hague Codification Conference that 

would have assimilated such waters to the territorial sea.413 

Alaska’s expert witnesses, J. R. Victor Prescott and Jonathan Charney, 

testified that the Alaskan north slope is well suited to the use of straight 

baselines, numerous foreign nations have employed Article 4 in similar 

circumstances, and but for particular law of the sea interests the United 

States might also have done so by now. 414 But neither could say that the 

United States had actually implemented Article 4. 

Ultimately, Special Master Mann concluded that the 10-mile rule had 

not existed as United States policy for the periods mentioned by the master 

and Court in the Mississippi Sound case. United States v. Alaska, Report of 

the Special Master of March 1996, at 127 and 150. The Court later agreed. 

United States v. Alaska, 521 U.S. 1, 21-22 (1997).415 

We have focused on Louisiana’s and Alaska’s straight baseline claims 

because those states presented the most comprehensive evidence and 

arguments, based on actual agency line drawing schemes and prior federal 

juridical practice respectively. However, five other states have made straight 

baseline claims in tidelands cases. 

First, California contended that straight baselines should be used to 

enclose the Santa Barbara Channel. The Court said that although permitted 

by international law, the United States had not elected that course and 

neither the judiciary nor the state could compel it. United States v. California, 

381 U.S. 139, 168 (1965). Florida argued that a system of straight baselines 

should be used in the Florida Keys and Dry Tortugas Islands. Special Master 

413. See: 4 Whiteman, supra, at 148 and United States v. Alaska, 521 U.S. 1, 17 (1997). 

414. Dr. Prescott taught geography at the University of Melbourne, Australia, and is a widely published 

authority on international boundaries, including maritime boundaries. Mr. Charney is a professor of law at 

Vanderbilt University. He represented the Department of Justice at the birth of the Baseline Committee and 

was government counsel during trial of the Louisiana Boundary and Cook Inlet cases. 

415. In addition to the inconsistency in federal theories through history, there is substantial evidence that 

whatever was espoused, it was not considered by the United States or the international community as a straight 

baseline system. Article 4 is acknowledged to have evolved from the Norwegian example, approved by the 

International Court of Justice in the Anglo-Norwegian Fisheries Case, [1951] I.C.J. Rep. 116. The majority of the 

Court in the Fisheries Case contrasted the United States’ “arcs of circles” method of delimiting the territorial sea 

with the straight baselines under consideration. Id. at 129. Following the I.C.J. decision the attorney general 

asked the secretary of state whether the United States would be changing its policy to conform to the straight 

baseline system approved by the Court. Secretary Acheson responded that the International Court decision made 

straight baselines optional, not required, and the United States would not be adopting them. Letter of February 

12, 1952, reproduced at 1 Shalowitz, supra, at 357; see also, 4 Whiteman, supra, at 178. 

The United States has also been diligent in protesting foreign straight baselines that it believes do not 

conform to the requirements of Article 4 of the 1958 Convention (Article 7 of the 1982 Law of the Sea 

Convention). By 1995 at least 60 countries had drawn straight baselines and some 10 more had legislatively 

authorized straight baselines that had not yet been drawn. Roach and Smith, United States Responses to Excessive 

Maritime Claims75, 2nd ed., 1996. The United States has either protested or asserted its right of innocent passage 

in 34 of those cases. Id. The United States has not only declined to draw straight baselines itself, it has maintained 

its traditional policy of maximizing high seas freedoms by actively contesting excessive foreign claims. 

Part Two 353 

Maris reviewed the state’s contentions and concluded that “the evidence in 

this case conclusively establishes that the United States has not adopted the 

straight baseline method . . . [for] the coastline of the State of Florida.”416 

United States v. Florida, Report of the Special Master, October Term 1973, at 

49. Mississippi and Alabama claimed straight baselines for Mississippi 

Sound on exactly the same theory urged by Alaska for the north slope; the 

United States had historically closed sounds with mouths of less than 10 

nautical miles. Alabama and Mississippi Boundary Cases, Report of the Special 

Master of April 9, 1984, at 5. Special Master Armstrong referred to his prior 

experience with the straight baseline issue along the Louisiana coast and 

ruled consistently that there had been no contraction of state territory and 

Article 4 was not applicable. Id. at 7.417 

Finally, and although the state did not strongly pursue a straight 

baseline claim, Special Master Hoffman touched on the issue in the 

Massachusetts Boundary Case. He noted that although parts of the United 

States’ coastline are suited to Article 4, the federal government alone held 

the option to employ straight baselines and had elected not to do so. 

Massachusetts Boundary Case, Report of the Special Master, October Term, 

1984, at 6. 

The question would seem to be resolved. Despite extremely thorough 

work by counsel for the states, both the Court and its special masters have 

consistently held that the United States has not adopted Article 4 straight 

baselines. It seems unlikely that the issue will arise again. 

International law provides the boundary delimitation principles 

discussed above, but the United States Supreme Court and its special 

masters have put meat on the bones of those principles. The law that they 

have developed will continue to be critical to the delimitation of maritime 

boundaries both here and abroad. 

416. Judge Maris later recommended that the waters within three island groups — the lower Florida Keys, 

the Marquesas Keys, and the Dry Tortugas Islands — are inland waters enclosed by “straight lines drawn 

between those islands . . . .” Report at 52-53. That result had not been urged by either party and the United 

States took exception, arguing to the Court that the master’s proposal could only be explained as a straight 

baseline system that he had already rejected. The Court returned the question to the master for further 

consideration and the parties stipulated that no such inland waters existed. United States v. Florida, 420 U.S. 

531 (1975); Stipulation of December 11, 1975, signed by Solicitor General Robert H. Bork for the United States 

and Attorney General Robert L. Shevin for the State of Florida (Appendix A to Supplemental Report of the 

Special Master of December 30, 1975). 

417. Interestingly, the master accepted the same alleged pre-Convention practice (the 10-mile rule) as 

evidence of a historic waters claim. The Court adopted that recommendation, leaving no reason for it to 

comment on the straight baselines arguments. Alabama and Mississippi Boundary Cases, 470 U.S. 93 (1985). 
Part Three 

LITIGATING A TIDELANDS CASE 
INTRODUCTORY 

Fifty years of litigating tidelands cases in the Supreme Court has 

produced more than the history and maritime boundary principles 

discussed above. It has provided a mass of experience. We conclude this 

volume by telling some of the story of how the tidelands cases have been 

developed and litigated. We hope that the following pages will be of 

assistance to future litigants in this area of the law and to others involved in 

Supreme Court Original actions. 

357 
CHAPTER 7 

HOW LITIGATION POSITIONS ARE ESTABLISHED 

If the federal government and the coastal states had agreed on the 

location of the coast line and the limits of the states’ offshore interests the 

numerous cases discussed here would not have been litigated. But they did 

not. And, with the increased importance of offshore resources, not to 

mention basic questions of sovereignty, both the federal government and 

the states had an interest in resolving their common boundary issues. It is 

useful to review how those issues are joined. 

The seminal legal issues of tidelands litigation — (1) whether states 

entered the Union with jurisdiction over offshore areas, and (2) what 

principles were to be applied for locating the coast line (both pre– and 

post–Submerged Lands Act) — were long ago decided by the Supreme 

Court by reviewing history, the Constitution, and legislative actions. But 

since the Court decided 35 years ago that the Convention’s principles would 

be employed for purposes of implementing the Submerged Lands Act, most 

litigation has centered on disputes as to how those principles are to be 

interpreted and then applied to particular geographic features. We turn now 

to how the parties’ litigation positions have evolved. 

THE FEDERAL POSITION 

Although a number of federal agencies have long administered 

legislation that affects activities seaward of our coastline, it was not until 

1970 that a procedure was established to assure that they all were defining 

the geographic limits of their jurisdiction in the same way. Early in that year 

the secretary of commerce, whose Department and the United States Coast 

Guard were jointly responsible for enforcing federal fisheries restrictions 

against foreign fleets operating off our coasts, suggested to the secretary of 

state that an interagency committee be set up to establish a common federal 

position on the limits of our inland waters, territorial sea, and contiguous 

zone. The secretary of state agreed. 

On August 17, 1970, the Ad Hoc Committee on Delimitation of the 

United States Coastline was established. Agencies “most directly concerned 

with implementation of United States policy with respect to the coastline” 

made up its membership. These included the Departments of State, 

Commerce, Interior, Transportation (Coast Guard), and Justice. In addition 

to noting the Coast Guard’s need for a definitive position with respect to 

359 
360 Shore and Sea Boundaries 

federal maritime jurisdiction, the Committee’s charter referred to recent 

“inquiries from both foreign Governments and States” regarding those same 

limits. 

The Committee began its work immediately. It was chaired by the State 

Department representative from the Office of the Legal Adviser and met 

almost once a week. It systematically reviewed charts of the entire coastline 

of the United States, applying the principles of the Convention on the 

Territorial Sea and the Contiguous Zone to delimit the territorial sea, 

contiguous zone, and, wherever they had an effect on the seaward limit of 

the territorial sea, closing lines across inland water bodies. In less than eight 

months that initial task was completed. Copies of the product were 

distributed to all interested agencies along with states and foreign 

governments that had requested the information.1 Sets were also forwarded 

to all United States Attorneys in coastal districts to assure that federal 

maritime laws would be consistently enforced. 

But the Committee’s task was not complete. Because the United States’ 

coast line and maritime zones measured from it are ambulatory, the 

Committee’s lines would not remain authoritative for long. Members 

agreed that as new additions of nautical charts were issued each would be 

reviewed by the Environmental Sciences Services Administration (now the 

National Oceanic and Atmospheric Administration) and appropriate 

corrections to the territorial sea and contiguous zone boundaries proposed. 

The geographer of the Department of State would then comment on those 

proposals and the entire Committee would consider them. The official 

lines would then be altered as necessary. That process has continued for the 

subsequent 30 years, keeping the federal boundary positions up to date 

through subsequent editions of official government charts. 

Changes have also occurred in two other circumstances. First, errors 

come to the Committee’s attention through any number of sources. For 

example, during the phase of United States v. California in which the state 

was contending that piers should be treated as harborworks and, therefore, 

part of the coast line, California pointed out that the territorial sea off 

California seemed to be measured from some of those piers. Dr. Robert 

Hodgson, the State Department geographer, testified that that was not the 

intention and explained how such errors might occur. The United States 

was not bound by the depiction and piers were ultimately ruled not to be 

part of the coast line. 

1. The Committee’s work was done on full-scale nautical charts provided by the Commerce Department and then 

reproduced on one-quarter scale black and white copies for distribution. The Commerce Department later included 

the Committee’s lines on its full-scale charts commonly available to the public. That practice continues today. Anyone 

interested in knowing the official federal position on the limit of the United States’ territorial sea need only visit his 

chart supplier or order from the National Ocean Service. 

Part Three 361 

Likewise, when charts of the north coast of Alaska were first prepared a 

feature known as Dinkum Sands was thought to be an island and a 

territorial sea was drawn around it. The Committee later learned that it did 

not qualify as part of the coast line and the chart was corrected.2 

The Committee has also amended its charts when the Supreme Court’s 

tidelands decisions have gone against the government. For example, when 

Louisiana successfully argued that Ascension Bay, on the western side of the 

Mississippi River delta, is an overlarge bay, the Committee revised the 

appropriate chart to include the 24-mile fallback line included in the 

Court’s decree. It also altered charts to portray Mississippi Sound as inland 

water when the Court determined that that body had been historically 

claimed by the United States.3 

In sum, the Baseline Committee charts reflect the federal position on 

the proper application of international law, to the geographic circumstances 

appearing on the base charts being used, for purposes of depicting limits of 

maritime jurisdiction. They establish the federal position in tidelands 

litigation, with the caveats that accretion and erosion may have altered the 

actual coast line and minor errors in drafting may be found. 

The Supreme Court and its special masters have referred to the work of 

the Coastline Committee with approval. 

THE STATE POSITIONS 

Generally the states do not have such regularized means of publicizing 

their boundary positions. A number have had constitutional or statutory 

boundaries that extend offshore but those are typically not precisely 

described. No state, so far as we know, has published charts depicting 

precise claims. 

State positions are usually first articulated when federal and state 

sovereign interests begin to clash offshore. This has often occurred when 

one sovereign has sought to sell oil and gas rights in an area claimed by the 

other, but no such potential trespass is necessary to prompt litigation. It is 

enough that the two sovereigns have conflicting claims to submerged lands. 

United States v. Alaska, 503 U.S. 569, 575 (1992). 

2. In fact each chart includes a printed note, which provides in part that “[t]hese maritime limits are subject to 

modification, as represented on future charts. The lines shown on the most recent chart edition take precedence.” 

3. The Court’s tidelands decisions are made in the context of domestic controversies over the implementation of 

the Submerged Lands Act. Clearly they are the final word on that subject. The Committee’s actions to conform its charts 

are not critical to implementation of the Court’s decrees. But the Committee’s primary purpose is to portray the 

government’s international position with respect to federal maritime jurisdiction. The Court has regularly stated that the 

development of international positions is the prerogative of the political branches, not the judiciary. It has also 

acknowledged that the United States’ domestic and international coast lines need not coincide. United States v. Alaska, 

503 U.S. 569 (1992). Thus it is not certain that the federal government must alter its international position or 

Committee charts merely because they do not accurately reflect a state’s Submerged Lands Act boundary. 
362 Shore and Sea Boundaries 

When a controversy occurs the states have used a number of bases for 

contending that their actual boundaries are seaward of those delineated on 

the federal charts. Popular examples are: historic water claims, contentions 

that Article 4 straight baselines either have been traditionally used by the 

United States or should be, and disagreements with the federal 

government’s application of the Convention’s principles to their particular 

coastlines. The actual location of the low-water line may also be in dispute. 

When such disputes have arisen they have, in all instances, been 

resolved by the Supreme Court. We turn now to a discussion of how that 

process is commenced. 

CHAPTER 8 

PLEADINGS AND PARTIES 

All but one of the cases referred to here as the “tidelands litigation” have 

begun in the United States Supreme Court.4 Article III, Section 2, clause 2 

of the Constitution provides that that Court shall have “original” 

jurisdiction over cases in which a state is a party, including actions between 

the United States and a state. And that is where they have typically been 

filed. 

But the Supreme Court’s jurisdiction over actions between the United 

States and a state is not exclusive. Congress has conferred concurrent 

jurisdiction on the federal District Courts. 28 U.S.C. 1251(b)(2), 1345 and 

1346. Nor does the Constitution require that the Supreme Court accept 

litigation between the United States and a state. It may decline jurisdiction 

and force the parties to take their dispute to a federal district court in the 

first instance.5 Consequently, Original actions are initiated through a 

slightly different process than are traditional trial court proceedings. 

The “complaint” in an Original action must be accompanied by a 

“motion for leave to file” and may include a “brief in support” of the 

motion. S. Ct. Rule 17.3.6 Adverse parties may file briefs in opposition to 

4. United States v. Alaska, litigation to establish title to the submerged lands in lower Cook Inlet was filed in the 

United States District Court for the District of Alaska. The trial judge found that Cook Inlet is historic inland water 

and the property of the state. 352 F.Supp. 815 (1972). That ruling was upheld by the Ninth Circuit Court of Appeals. 

497 F.2d 1155 (1974). But the Supreme Court took the case on certiorari and reversed. In so doing it commented that 

“It would appear that the case qualifies, under Art. III, Sec. 2, cl. 2, of the Constitution, for our original jurisdiction . . . . 

We are not enlightened as to why the United States chose not to bring an original action in this Court.” 422 U.S. 184, 

186 n.2 (1975). 

The answer is straightforward. Department of Justice attorneys responsible for the decision were not sure 

whether the Court would consider a tidelands case which raised only one issue and involved only a small portion of 

one state’s coastline worthy of original status. Prior tidelands cases had been much more expansive and the Court had, 

in unrelated cases, indicated that it was not inclined to expand its original docket. Stern, Gressman, Shapiro and Geller, 

Supreme Court Practice , 7th ed. (1993) at 476. However, the government considered the footnote in the Alaska decision 

to be an invitation and brought all future tidelands controversies directly to the Supreme Court. 

5. According to Stern, et al. “When the district courts have jurisdiction, the Court has shown an increased 

tendency to decline to exercise its original jurisdiction, in accordance with its feeling that such jurisdiction should be 

‘sparingly’ exercised and its reluctance ‘to take jurisdiction of a suit where the plaintiff has another adequate forum in 

which to settle his claim.’ United States v. Nevada, 412 U.S. 534, 538 (1973), in which the Court found it unnecessary 

to employ its ‘original jurisdiction to settle competing claims to water with a single State.’” Supreme Court Practice, 

supra, at 469. 

6. At this point the Court assigns an Original docket number which will remain with the case until its conclusion. 

That has not always been the case, which explains the fact that the California case, for example, had more than one 

“Original action number” during its lifetime. 

Stern, et al. advise that “[w]hether a brief should be attached depends upon the nature of the case. If counsel is 

certain, because of the type of case, that the motion for leave to file will be granted, and that there will be subsequent 

opportunity to present the arguments, a supporting brief may be dispensed with. This procedure might be appropriate 

in suits between states with respect to boundaries or water rights, for example, since these are recognized classes of cases 

falling within the Court’s original jurisdiction.” Supreme Court Practice, supra, at 480. Tidelands cases would also 

seem to fall within these “recognized classes of cases,” at least since the Court’s comment in United States v. Alaska, 

supra, 422 U.S. at 186, n.2. The Supreme Court Rules referred to herein are those adopted by the Court on January 11, 

1999, and put into effect on May 3, 1999. 

363 
364 Shore and Sea Boundaries 

the motion within 60 days. S. Ct. Rule 17.5.7 Thereafter the schedule and 

procedures are set by the Court. S. Ct. Rule 17.5.8 

In practice, the parties to modern tidelands cases have looked forward 

to the Court’s assistance in resolving their boundary problems and have not 

objected to the initiation of Original actions. 

Until 1972 the federal government traditionally initiated tidelands 

litigation. State actions against the United States were subject to a defense 

of sovereign immunity, an unnecessary complication when both parties 

desired judicial resolution. In 1972 Congress waived sovereign immunity 

through the Quiet Title Act, 28 U.S.C. 2409a. Tidelands cases are actions to 

quiet title to submerged lands; thus, from that date on, the states could file 

against the federal government without fear of the sovereign immunity 

defense.9 The states are now as likely to initiate tidelands actions as is the 

federal government.10 

On occasion, non-original parties have sought to intervene in tidelands 

cases. As a general proposition, private parties may not intervene as a matter 

of right in an Original action, Utah v. United States, 394 U.S. 89, 92 (1969), 

and rarely have they sought to do so.11 Governments have often joined the 

cases. When the United States sued Louisiana over tidelands issues, the 

remaining Gulf Coast states, because of their closely connected interests, 

were allowed to intervene. United States v. Louisiana, 354 U.S. 515 (1957). 

Similarly, the United States and the city of Port Arthur, Texas, were permitted 

to intervene in Texas v. Louisiana, a boundary dispute in the Sabine River, 

when it became apparent that they might have claims to islands in the 

Sabine. 414 U.S. 1107 (1973) and 416 U.S. 965 (1974). Finally, Inupiat 

native organizations from the north slope of Alaska intervened in United 

States v. Alaska. They claimed, in separate litigation, that they and not the 

United States had paramount rights to the outer continental shelf off the 

7. Note that an “answer” is not filed at this stage of the process. 

8. Although a case will be accepted on certiorari on the vote of only 4 Justices, a majority of those participating is 

necessary to grant a motion to file an Original action. Oklahoma ex rel. Williamson v. Woodring, 309 U.S. 623 (1940). 

Stern et al., supra, at 480. 

9. Such suits may, however, have procedural and statute of limitations requirements. See: 28 U.S.C. 2409a(i)-(m). 

10. See, for example, California ex rel. State Lands Commission v. United States , 457 U.S. 273 (1982). 

11. Although the Supreme Court generally follows the Federal Rules of Civil Procedure in Original actions, see 

Supreme Court Rule 17.2, their application was considered inappropriate to the intervention question in Utah. I d. 

at 92. 

An individual, R.E.L. Jordan, and an Indian Tribe did attempt to participate in the early proceedings in United 

States v. California but were denied permission to intervene. 329 U.S. 689 (1946) and 334 U.S. 825 (1948). Oil 

companies that hold leases to submerged lands in dispute certainly have an interest in tidelands questions but they have 

not actively participated in litigation. The states and federal government have been careful in crafting final decrees to 

assure that lessees do not lose their property interests when submerged lands change hands through tidelands decisions. 

Stern, et al. suggest that in recent years “the Court appears to have relaxed its stance on intervention,” citing 

Maryland v. Louisiana , 451 U.S. 725, 745-46 n.21 (1981) in which the United States, the State of New Jersey and 17 

pipeline companies were allowed to intervene in a tax case “without much ado.” Supreme Court Practice, supra, at 483. 

Part Three 365 

north slope. They sought to intervene in Number 84 Original and were 

allowed to participate on the side of the United States in an effort to 

maximize the area that they ultimately hoped to win in the separate 

action.12 When that case was decided in favor of the federal government the 

Inupiats were dismissed, at their request, from the tidelands case. Inupiat 

Community v. United States, 548 F.Supp. 182 (D. Ak. 1982), aff’d, 746 F.2d 

570 (9th Cir. 1984), cert. denied, 474 U.S. 820 (1985). United States v. Alaska, 

Order of the Special Master of June 3, 1986, reprinted at Report of the 

Special Master of March 1996, at Appendix D. 

It is much more usual for outside parties to participate as amicus curiae. 

This has most commonly occurred in the Supreme Court itself, rather than 

in special master proceedings. The federal government, states and political 

subdivisions of states are always entitled to file amicus briefs with the Court 

to express their positions on a case before it. S. Ct. Rule 37.4. Others may 

do so with consent of the parties or upon Court order in response to their 

motions. S. Ct. Rules 37.2 and 37.3. 

This then is how tidelands cases have been initiated and the participants 

determined. We look now at the various procedures for their disposition. 

12. The Inupiat’s effort was made in the special master proceedings and Dean Mann prepared a report 

recommending their limited intervention and, at the request of Alaska and the federal government, permitted their 

participation without further action by the Court. United States v. Alaska, Number 84 Original, Report of the Special 

Master of January 10, 1984, Appendix B to the Report of the Special Master of March 1996; and Order of January 10, 

1984 Appendix C. 
CHAPTER 9 

RESOLUTION 

Tidelands actions initiated in the Supreme Court may be resolved by 

the Court alone or following its review of a Special Master’s Report. The 

choice of methods turns on the importance of factual determinations to the 

ultimate issues. If the parties agree on all relevant facts, the Court may 

resolve the controversy alone, relying on briefs and oral argument. If there 

are factual disputes, the Court will typically appoint a special master to take 

evidence and submit a report with his findings and recommendations. The 

procedures are distinctly different and we review them separately. 

DISPOSITION ON THE PLEADINGS AND DOCUMENTARY RECORD 

By far the most efficient means of resolving an Original action is to brief 

and argue the issues before the Court only, relying on the law alone or the 

law and an agreed-upon documentary record. That may occur either before 

or after the Court has agreed to accept the case. 

The Court decided an early tidelands case based solely on the papers in 

support of the motion to file an Original action, opposition papers and oral 

argument. Alabama v. Texas, 347 U.S. 272 (1954). But more commonly it 

will grant the motion to file and accept another round of briefing before 

argument. That approach has been followed in three recent tidelands 

controversies. 

In the first, the federal government sought a supplemental decree in the 

original California case declaring its title to submerged lands within one 

nautical mile of the islands that comprise the Channel Islands National 

Monument. California claimed the area under the Submerged Lands Act’s 

general grant of all such lands within 3 miles of the coast. The Channel 

Islands are agreed to form part of California’s coast, but the federal 

government contended that a pre–Submerged Lands Act expansion of the 

monument to include a 1-mile belt around each island operated to except 

the area from the grant as provided by Section 5 of the Act. The critical issue 

was whether Congress intended the grant’s exception to encompass such 

areas as the submerged lands within the expanded monument boundaries. 

The outcome would depend on arguments of law, Congressional intent, 

and a few public documents. The parties agreed to a collection of 

documents upon which they would base their arguments and submitted it 

to the Court. The case was then briefed, oral argument was held, and a 

decision was rendered. United States v. California, 436 U.S. 32 (1978). No 

master was required. 

367 
368 Shore and Sea Boundaries 

In July 1981, California commenced a new Original action against the 

federal government. The controversy was over accretions to federally owned 

beachfront property on the California coast. The United States Coast Guard 

station at Humboldt, California, is located just north of the jetty that forms 

the entrance to Humboldt Bay. Littoral currents, affected by the jetty, caused 

accretion to the Coast Guard’s property. Under California law accretions 

caused by artificial structures belong to the state. The upland land owner, 

in this case the Coast Guard, is cut off from the sea. But federal law is 

contrary. It provides that accretion to beachfront property belongs to that 

property owner, whatever its cause, just as erosion reduces his or her 

interest. 

The parties agreed that the issue was purely legal, whether California or 

federal law is to be applied in determining ownership of the accreted lands. 

Again the Court resolved the case on briefs and oral argument.13 In less 

than a year after the complaint was filed, the Supreme Court issued its 

opinion. California ex rel. State Lands Comm’n v. United States, 457 U.S. 273 

(1982). 

Finally, the United States and Alaska had a tidelands disagreement that 

raised a single legal question. The City of Nome, Alaska, requested a Corps 

of Engineers permit to construct a jetty from its shoreline into the open sea. 

Normally such structures become part of the coast line from which a state’s 

Submerged Lands Act grant is measured. But, to avoid the loss of its outer 

continental shelf lands, the federal government conditioned the issuance of 

a permit on the state’s waiver of any Submerged Lands Act consequences. 

The state submitted the disclaimer but included a provision questioning the 

United State’s authority to require it as a permit condition and reserving its 

“right to file an appropriate action” testing that authority. 

In 1991 the federal government proposed leasing submerged lands for 

gold exploration that were within 3 nautical miles of the Nome jetty but 

more than 3 miles of the natural coast. Alaska questioned federal title to 

the area and United States v. Alaska, Number 118 Original, was filed to 

resolve the controversy. The federal government asserted that the matter was 

appropriate for the Court’s original jurisdiction and, because “the issue is 

purely one of law,” no special master would be required. Alaska agreed with 

both propositions and again the case was resolved on briefs and argument 

before the Court. Its decision was issued less than 16 months after the 

Motion To File Complaint had been submitted. United States v. Alaska, 503 

U.S. 569 (1992). 

These are three examples of how efficiently an Original action may be 

disposed of when the parties agree that only legal issues are involved or that 

factual matters can be dealt with through agreed-upon documentary 

13. California submitted documentary “exhibits” in support of its Motion for Leave to File Complaint and asked 

the Court to take judicial notice of the facts included. The exhibits provided a chronological history of the accretion 

and were not opposed by the United States. 

Part Three 369 

evidence. Each of these actions could, of course, have been initiated in a 

federal district court under its concurrent jurisdiction. But when it is 

apparent that the question qualifies for original jurisdiction and will, in all 

likelihood, wend its way to the Supreme Court eventually, this procedure 

has proved an efficient means of resolution. 

We suggest that advocates who wish to take advantage of this process 

make clear to the Court in their original filings that they agree that their 

controversy is appropriate for Original jurisdiction, that material facts are 

agreed upon, and that a special master is not required.14 

ON SUBMISSION TO A SPECIAL MASTER 

In a large majority of instances, the tidelands cases have raised 

significant factual questions requiring a trial. In those cases, the Supreme 

Court has appointed special masters to conduct evidentiary proceedings.15 

Although the Court’s rules say nothing of special masters, orders appointing 

them in tidelands cases have typically provided authority to summon 

witnesses, issue subpoenas, take evidence, and conduct proceedings as may 

be necessary. See: United States v. Alaska, 444 U.S. 1065 (1980). The masters 

then submit reports to the Court forwarding findings and 

recommendations with respect to the issues. Those reports are in 

appearance much like a trial court decision. But, at least formally, they have 

no independent force of law. Supreme Court Practice, supra, at 474 and 488. 

The parties are permitted to “take exception” to the masters’ findings and 

argue to the Court that the recommendations should not be adopted.16 

Even if no exceptions are voiced, the Court will review the entire record de 

novo and reach an independent conclusion. 

The purpose of this section is to describe procedures that have been 

employed in various special master proceedings in the hope that they may 

be useful to future practitioners. The Supreme Court’s Rules provide little 

guidance, saying only that “[t]he form of pleadings and motions prescribed 

by the Federal Rules of Civil Procedure is followed. In other respects, those 

Rules and the Federal Rules of Evidence may be taken as guides.” S. Ct. Rule 

17.2. But that lack of specificity has not been a drawback. The special 

masters and parties have always been able to agree upon procedures best 

suited to the particular problems before them. 

The following are some areas that may be worthy of discussion. 

14. See California ex rel. State Lands Comm’n v. United States, in which the Court noted that “[n]o essential facts 

being in dispute, a special master was not appointed and the case was briefed and argued.” 457 U.S. 273, 278 (1982). 

15. The Court has suggested that there may be some presumption in favor of master proceedings, saying that 

“[t]he Court in original actions, passing as it does on controversies between sovereigns which involve issues of high 

public importance, has always been liberal in allowing full development of the facts.” United States v. Texas, 339 U.S. 

707, 715 (1950). 

16. In fact, masters’ recommendations are probably adopted in a larger percentage of cases than are lower court 

decisions upheld by the Supreme Court, although we have done no survey to verify that observation. 
370 Shore and Sea Boundaries 

Selection and Appointment of a Special Master 

The special master is always selected and appointed by the Supreme 

Court. However, the Court has, on occasion, permitted parties to 

recommend potential masters or comment on alternatives being considered 

by the Court. The Court has generally not, it would seem, sought to appoint 

masters who are already steeped in tidelands law, except to the extent that 

masters who have handled prior proceedings in the same case may be asked 

to step back in.17 Masters have always been highly qualified federal judges, 

academics, or private practitioners.18 

Proceedings before the Special Master 

But for S. Ct. Rule 17.2’s suggestion that the Federal Rules of Civil 

Procedure and the Federal Rules of Evidence “may be taken as guides,” the 

Supreme Court Rules provide no hint as to how the trial of an Original 

action is to proceed. Typically the master’s appointment will include 

authority to: schedule further pleadings and proceedings, summon 

witnesses, issue subpoenas, take evidence, and submit a report. The Court’s 

Order will also provide that the master will be allowed his expenses and, if 

he or she is not a federal judge, there is also provision for “reasonable 

compensation for services.” 

It is usual for the master to contact counsel of record soon after his 

appointment and arrange a planning or scheduling conference. It is during 

that meeting that the ground rules for proceeding are usually established. 

The absence of official rules governing the process gives the master and 

counsel substantial leeway, something that has seemed to foster efficiency. 

The following steps have at least sometimes been adopted. 

Preparation of a Joint Statement of Issues 

It has been the author’s experience that complaints and answers, even 

when accompanied by motions and supporting memoranda as they are in 

Original actions, rarely narrow the issues to a point useful for efficient 

17. For example, Special Master Walter Armstrong conducted the extensive proceedings to determine the coast 

line of Louisiana in Number 9 Original and was later asked to resolve supplemental issues between the parties in that 

case and conduct proceedings to establish title to the submerged lands in Mississippi Sound. Judge Albert Maris was 

assigned as special master in United States v. Maine, et al., Number 35 Original and took on United States v. Florida, 

Number 52 Original when Florida was severed from the Maine case. Likewise, Judge Walter Hoffman served as master 

in two supplemental proceedings under United States v. Maine, the Massachusetts and Rhode Island/New York boundary 

cases. Judge Hoffman also undertook the river boundary Original action between Georgia and South Carolina, 

Number 74 Original. 

18. Appointments typically include a provision for the Chief Justice to name a new master should the position 

become vacant while the Court is in recess. 

Part Three 371 

adjudication. Without more, participants’ theories of the case, and even 

their characterizations of the issues before the court, may seem to be 

continually changing. That creates considerable frustration and delay. 

Participants in the most complicated of the tidelands cases have streamlined 

their proceedings by preparing in advance of trial an agreed-upon statement 

of the precise issues before the master. 

For example, in United States v. Louisiana, Special Master Armstrong was 

asked to recommend a coast line for measuring that state’s Submerged 

Lands Act grant along the entirety of its extremely complicated shore. The 

parties divided the coast by segments for trial and agreed to a catalogue of 

issues applicable to each segment. A typical example is their treatment of 

the coastal stretch from Pass a Loutre to Southeast Pass, for which the 

following issues were identified: 

(a) Are there islands or low-tide elevations that should be 

considered part of the mainland? 

(b) If the closing line of Blind Bay affects the three-mile limit, where 

are the natural entrance points between which the closing line 

should be drawn? 

(c) Should islands or low-tide elevations be regarded as forming 

separate mouths of a bay if one or more direct lines could 

be drawn between other natural entrance points of the bay so as 

to run wholly landward of such islands or low-tide elevations? 

(d) Are there islands or low-tide elevations at Blind Bay that form 

separate mouths to it?19 

As any litigator will readily recognize, this enumeration is much more 

specific than traditional complaints and answers. 

A similar but even more comprehensive approach was adopted in 

United States v. Alaska, Number 84 Original. There each of 15 litigation 

issues was concisely stated, and followed by a short explanation of the 

relevance of the issue to the proceedings and a summary of each party’s 

position on the issue. For example, Question 5 was set out as “[i]s the 

formation known as Dinkum Sands an island constituting part of Alaska’s 

coast line for purposes of delimiting Alaska’s offshore submerged lands?” It 

was then explained that “[t]he status of the Dinkum Sands formation as an 

island forming part of Alaska’s coast line for purposes of delimiting Alaska’s 

offshore submerged lands is disputed. As part of this inquiry, the parties 

agree that the relationship of the Dinkum Sands formation to the mean 

tidal planes of the Beaufort Sea must be determined. The Parties are 

negotiating a monitoring agreement which, it is anticipated, will lead to a 

set of stipulated facts on this question. But it is probable that a dispute will 

19. United States v. Louisiana, Supreme Court Number 9 Original, Pretrial Statement, Appendix A-1 to the Report 

of the Special Master of July 31, 1974. Reproduced in Reed, Koester and Briscoe, supra, at 242. 
372 Shore and Sea Boundaries 

remain as to effect of the Dinkum Sands formation in delimiting the 

offshore submerged lands belonging to Alaska.” Joint Statement of 

Questions Presented and Contentions of the Parties of May 1980, at 12-13. 

The Statement then continued with a recitation of the parties’ positions on 

the issue.20 A similar procedure was followed in United States v. Florida, 

Number 52 Original. See Report of Special Master Maris of December 

1973, at 538; reprinted at Reed, Koester and Briscoe, supra, at 538. 

The joint submissions in all of these cases did much to focus the parties’ 

trial preparation. They probably contributed more than any other 

procedural step to their efficient litigation. 

Pretrial Proceedings 

Trial preparation has been surprisingly civil and, again, efficient in 

tidelands litigation. Discovery has been kept to a minimum, at least 

compared to what might be expected in such complicated cases.21 In other 

litigation it has, in recent years, become a source of substantial delay and 

controversy. But that has not been so in the tidelands cases. Procedures 

have usually been agreed to that fulfill the litigants’ needs without creating 

acrimony. 

20. “The United States contends (1) that the principles set out in the international Convention control resolution 

of this issue; and (2) that the Dinkum Sands formation is not an island forming a part of the coast line for purposes 

of measuring the territorial sea under the Convention, because it does not qualify as a ‘naturally formed area of land, 

surrounded by water, which is above water at high tide,’ but is, at best, a ‘low-tide elevation,’ defined as ‘a naturally 

formed area of land which is surrounded by and above water at low-tide but submerged at high tide,’ which enjoys no 

territorial sea of its own when, as here, it lies outside the territorial sea measured from the mainland or any island; and 

(3) that, accordingly, the Dinkum Sands formation and the submerged lands underlying the three-mile belt around the 

formation, and not within three miles of the mainland or any island, do not belong to Alaska. The United States 

further contends that the Dinkum Sands formation does not qualify as an island for any relevant purpose or any 

relevant period, even if (which is not admitted) the formation rises above the level of mean high water during portions 

of each year. In the alternative, the United States contends that the Dinkum Sandsformation has no effect on the extent 

of Alaska’s submerged lands for such periods as it is submerged at mean high tide. 

The State of Alaska contends (1) that the principles of the international Convention do not control resolution of 

this question; (2) that the Dinkum Sands formation possesses a ‘line of ordinary low water’ for purposes of the 

Submerged Lands Act, thereby qualifying it as an island forming part of Alaska’s coast line for purposes of the Act; and 

(3) that Alaska therefore is entitled to the resources of the Dinkum Sands formation and of the submerged lands within 

a three-mile radius. In the alternative, Alaska contends that it is entitled to the resources of the Dinkum Sands 

formation and the submerged lands within a three-mile radius for such periods as the formation is determined to 

possess a line of ordinary low water. Insofar as the principles of the Convention may control the extent of the grant of 

submerged lands to Alaska under the Submerged Lands Act, Alaska contends that the Dinkum Sands formation 

qualifies as an island under the Convention for all relevant purposes and at all relevant times, even if (which is denied) 

it is submerged below the level of mean high water during portions of the year. Alternatively, to the extent that the 

principles of the Convention control, Alaska contends that it is entitled to the resources of the Dinkum Sands 

formation and the submerged lands within a three-mile radius for such periods as the formation is determined to be 

above the level of mean high water. Additionally, to the extent that the principles of the Convention control, Alaska 

contends that it is entitled to the resources of the Dinkum Sands formation and the submerged lands within a threemile radius to the same extent that the United States claims in its relations with other countries that the waters within 

that three-mile radius constitute a part of the United States’ territorial sea.” Id. at 13-15. 

21. Discovery is the means by which a party learns about the opponent’s case and/or seeks to narrow the issues 

for trial. It may be through oral or written depositions, written interrogatories, requests for production of documents, 

physical or mental examinations, and requests for admissions. 

Part Three 373 

For example, it has not been unusual to exchange documentary 

evidence before trial, giving counsel an opportunity to prepare crossexamination and rebuttal. Witness lists and summaries of anticipated 

testimony are typically exchanged, as are expert witness reports. Depositions 

have been used, but probably not as extensively as in traditional cases. The 

use of interrogatories has been atypical. 

Judge Albert Maris, who served as special master in United States v. 

Maine, Number 35 Original, and United States v. Florida, Number 52 

Original, entered prehearing orders which were more precise than most. He 

required that all testimony in chief be written, preferably in question and 

answer form, and copies exchanged a month before trial. Documentary 

evidence was likewise provided a month in advance. Even with that lead 

time, cross-examination could be deferred for a reasonable period. See 

Prehearing Orders reproduced in Reed, Koester and Briscoe, supra, at 679-

684 and 531-537. Judge Maris had used a similar procedure in another 

large Original action and concluded that “the testimony, both that in chief 

and that adduced on cross-examination, was rendered much more concise 

and helpful by the procedure which was followed than it would have been 

if the witnesses had been required to testify in chief extemporaneously and 

if opposing counsel had been required to cross-examine them immediately 

thereafter.” Wisconsin v. Illinois, Report of the Special Master of December 8, 

1966, at 19-20. 

Judge Alfred Arraj, sitting as special master in the “piers” phase of United 

States v. California, received the direct testimony of three expert witnesses in 

written form. Although the testimony was read from the stand, it was 

submitted to the master and opposing counsel prior to trial. According to 

the master “[b]ecause of the technical nature of the testimony involved I 

found this to be a very satisfactory method of receiving the evidence.” 

United States v. California, Report of the Special Master of August 20, 1979, 

at 3 n.3. The procedure also made cross-examination much more efficient 

than would otherwise have been the case. 

The early identification of precise litigation issues, a clear statement of 

the parties’ positions on each, and an open exchange of proposed evidence 

have gone a long way to assuring efficient hearings before the special 

masters. 

The Pretrial Memorandum 

The parties to tidelands litigation have traditionally submitted pretrial 

memoranda which, like opening statements, provide a road map for the 

upcoming proceedings. These too have been helpful in understanding the 
374 Shore and Sea Boundaries 

evidence to come and how it fits into the big picture. Such memoranda 

have been most useful when they did not include argument beyond a 

statement of the issue and the party’s position on that issue, followed by a 

short summary of each witness’s testimony and the exhibits to be presented 

by each. Such memoranda have either replaced or supplemented opening 

statements. 

The Trial 

Not surprisingly, trials, or “hearings,” before special masters have not 

differed much from other federal proceedings. But some distinctions may 

be worth noting. 

First is the location of trial. Federal judges sitting as special masters will, 

of course, have access to their own courtrooms. Those have frequently been 

used, but federal judges have also conducted special master proceedings 

away from home for the convenience of witnesses or counsel.22 When away 

from home they have usually borrowed the courtrooms of local judges. 

Masters who have not been judges have often asked the parties to arrange 

for facilities, although Dean J. Keith Mann of Stanford Law School utilized 

that institution’s moot courtroom for the trial of United States v. Alaska, 

Number 84 Original. In all, special masters have been most 

accommodating in agreeing to hear evidence wherever it was most 

convenient for counsel and the witnesses. 

A few words should be said about the order of trial. Traditionally, of 

course, the burden of proof in litigation is on the plaintiff and he will go 

first and last in an evidentiary hearing. Tidelands cases have differed. On 

most questions the parties have agreed that a particular order of 

presentation makes most sense and that sequence has been followed, 

regardless of which party was plaintiff. Two regular tidelands issues provide 

good examples. Many states have alleged that the United States has 

enclosed specified water bodies with “straight baselines” or has made 

historic inland water claims to them. In both instances the states have 

usually understood, given prior Supreme Court decisions, that they have a 

burden of proof on those issues. Indeed, the federal case would require 

proving a negative. Consequently, it has usually been agreed that the state 

would put on its case first on such issues, despite the fact that the federal 

government was plaintiff in the case.23 

22. Judge Arraj of Denver, hearing United States v. California, sat in New York to take the testimony of the 

distinguished international lawyer and jurist Philip Jessup who was called by the state. Judge Maris traveled from 

Philadelphia to Florida to hear witnesses in United States v. Florida. Judge Hoffman from Norfolk, Virginia, held court 

in Boston for parts of the proceedings in the Massachusetts Boundary Case. And Judge Van Pelt, from Lincoln, Nebraska, 

conducted parts of the Texas v. Louisiana trial in New Orleans, Louisiana. Some hearings in New Jersey v. New York were 

conducted on Ellis Island. 

23. As previously noted, tidelands cases were often initiated by the United States to avoid questions of sovereign 

immunity . Since the enactment of the Quiet Title Act they may be brought by states, and often are, but the parties have 

generally agreed that the order or burden of proof may be unrelated to a party’s status as plaintiff or defendant. 

Part Three 375 

On issues for which prior decisions had not placed the burden on the 

state or federal government, the parties have typically ignored the burden 

question in setting the order of proceedings. 

When cases have included a number of factual and legal questions, 

related issues have often been grouped for trial, with all proceedings being 

conducted on a particular issue or group of issues before going on to the 

next. For example, United States v. Alaska, Number 84 Original was tried in 

three phases. One of those phases, concerning the status of Dinkum Sands, 

ran for three weeks. During that time each side put on its direct case, and 

all cross-examinations were conducted. 

The procedure was efficient. Counsel, witnesses, and the master were 

able to concentrate on the preparation and presentation of evidence on 

finite issues during each stage. Consideration of this procedure is 

recommended for any complex litigation.24 

Views 

The tidelands cases have, by definition, involved the application of legal 

principles to particular geographic circumstances. Most attorneys have 

considered it imperative to become acquainted with the coastal features 

about which they are litigating. It is particularly helpful to visit the areas 

with one’s witnesses and to do so before theories of the case have been 

solidified. 

Such familiarization is equally critical to the master’s understanding of 

what is being presented. Most masters have participated in views and, we 

believe, have found them useful in their deliberations.25 

But planning a view can produce controversies. They may involve: who 

will participate, what may be said during the view and by whom, what route 

will be followed and if by aircraft at what altitude, and whether the view is 

evidence, requiring a court reporter. 

Obviously lead counsel and the master will participate. Someone 

familiar with the area may also be useful if it is likely that explanations of 

what is being seen would be helpful. A potential witness has usually been 

able to fill that role. Other experts, as considered useful and able to be 

accommodated, have been included. 

Some counsel have been concerned that their counterparts would be 

unable to control the urge to argue their cases during a view. That has 

sometimes led to agreements about what could be said and by whom. But 

24. It should be mentioned that because each stage was treated as a separate trial, pretrial and post-trial 

memoranda were submitted with each phase of the proceedings. 

25. Judge Hoffman visited Nantucket Sound; Judge Maris flew the length of the Florida Keys and across the 

mouth of Florida Bay ; Special Master Armstrong flew the Louisiana coastline; Judge Arraj visited the California coastal 

piers; and Special Master Mann sailed into the Arctic Ocean in search of the elusive Dinkum Sands. 
376 Shore and Sea Boundaries 

such constraints have not, in the end, seemed necessary. Participants have 

tended not to discuss issues during a view. Conversation has been limited 

to that necessary to identify features being observed and to respond to 

inquiries from the special master. 

The means of transportation and route of travel may favor one party’s 

position in the litigation and should be carefully considered as part of the 

preparation for a view. For example, one of the issues in United States v. 

Florida was whether Florida Bay, between the Keys and the Florida 

mainland, is a landlocked body of water. Judge Maris agreed to a view of 

the bay, including a trip across its mouth. To make that trip in a boat would 

have put the group out of sight of land for a considerable time, presumably 

supporting the contention that the area is open sea and not landlocked. At 

the other extreme, flying the route at a high altitude would have enabled the 

observer to take in the entire bay at once, much like consulting a small-scale 

chart. That view, presumably, would more likely create an impression of 

“landlockedness.” The parties agreed to fly the line but negotiated the 

altitude of the flight. 

But the question remains whether the view is evidence in the 

proceeding. Good arguments can be made on either side. But the most 

logical approach would seem to be that a view is not evidence but a means 

of assisting the trier of fact in understanding. That approach resolves a 

number of lesser problems. It does away with the need for a reporter and 

for swearing in any participant who is likely to speak. It also obviates the 

need for a running description of everything that is being seen so that the 

evidentiary record is complete. 

Like most phases of a judicial proceeding, views are most productive 

when least constrained. They should be used to enable the master to better 

understand the evidence, not as part of that evidence. When conducted for 

that purpose they can be an invaluable addition to a trial. 

Post-Trial Memoranda 

It has been traditional in tidelands litigation for the parties to pull 

together their cases in simultaneous post-trial briefs to the special master, 

followed by reply briefs and sometimes sur-reply submissions. These 

offerings have usually been voluminous efforts to review all of the evidence 

in light of the law as contended by the party. For example, the United States’ 

156-page post-trial brief in United States v. Louisiana was dwarfed by the 

state’s multi-volume submission. 

It is believed that these thorough presentations have been especially 

useful to the masters in bringing the law and evidence into context. Closing 

arguments have been much more succinct, if delivered at all. 

Part Three 377 

The Special Master’s Report 

After hearing all of the evidence and arguments, the master retires to 

make findings and recommendations on the issues assigned to him by the 

Supreme Court. His report is printed and submitted to the Court upon 

completion. 

Since 1974 the federal government has proposed that special masters in 

tidelands cases permit the parties to review a draft of the report before it is 

printed. The purpose is to guard against technical errors that might require 

opposition to the report if not corrected prior to submission.26 Special 

masters are understandably wary of the suggestion but are usually 

convinced that it can only improve their product. 

When the parties are given an opportunity to review drafts, they are 

typically sworn not to divulge their contents, to destroy drafts following 

their review, and to forego the urge to reargue their cases, limiting their 

comments to truly technical or factual corrections. The process has worked 

well. Occasional corrections have been made at the suggestions of the 

parties. None has altered a substantive finding or recommendation. 

Special masters’ reports often include appendices that the Court might 

find useful to have close at hand. These have included pretrial orders, 

statements of issues, and stipulations. The parties may request that the 

master include anything that might be useful to the Court. Louisiana asked 

Special Master Armstrong to include a summary of its historic waters 

evidence as an appendix to his Report of July 31, 1974, which he did. 

A final suggestion is that special masters be encouraged to date their 

reports. Many Original actions produce more than one master’s report and 

for future reference it is convenient to be able to distinguish among them. 

Supreme Court Consideration 

When the Supreme Court receives its special master’s report it sets a 

schedule for the parties’ comments or, technically, “exceptions.” The Rules 

do not specify a schedule for briefing in Original actions but the Court 

typically provides 45 days from its order for exceptions and supporting 

briefs and 30 days thereafter for replies to the opponent’s exceptions. Surreply briefs are sometimes allowed.27 

26. The policy began when the special master in United States v. Florida made two recommendations that had been 

suggested by neither party and which, in the federal view, were inconsistent with the law and represented dangerous 

precedents. The recommendations forced the United States to take exception and the Court returned the case to its 

master for further consideration. Neither recommendation was important to the State of Florida and it stipulated to 

the entry of a decree which did not include them. 

27. S.Ct. Rule 33 sets out the technical requirements for Supreme Court briefs. 
378 Shore and Sea Boundaries 

The parties may take exception to the master’s findings of fact and 

conclusions of law.28 The Court has the entire record of the case before it 

and its review is de novo.29 Despite that fact, and the tendency of some 

parties to take exception to every recommendation upon which they were 

unsuccessful, the Court has adopted a vast majority of its masters’ 

recommendations. 

When the briefs on exceptions have been submitted, oral argument is 

scheduled. Each side is typically allowed one-half hour in which to 

promote its own exceptions and oppose those of its opponent.30 The case 

is then considered “submitted” and the parties await the Court’s decision. 

The Court hears arguments from October through April and issues decisions 

in all argued cases by the end of June. The Court’s rules allow a 

disappointed party to file a petition for rehearing within 25 days of the 

decision. S. Ct. Rule 44. States frequently have done so but none has been 

successful in the tidelands cases. Rule 44 does not permit responses to 

petitions for rehearing unless requested by the Court. 

Supreme Court decisions in tidelands cases invariably conclude with 

two provisions. The first is an instruction to the parties to prepare and 

submit to the Court a decree implementing the decision. Decrees usually 

state in straightforward terms the Court’s answers to the questions that were 

litigated. They may also describe, through a coordinate system, the coast 

line that results from the Court’s decision and/or the offshore boundary 

between federal and state submerged lands as measured from that coast 

line. The Submerged Lands Act now provides that boundaries so described 

in a Supreme Court decree are thereafter fixed and are not subject to 

ambulation with accretion and erosion of the coast line. 43 U.S.C. 1301(b). 

The second provision common to tidelands decrees provides that the 

Court retains jurisdiction to conduct further proceedings and enter 

additional orders as necessary to give force and effect to existing decrees in 

the case. As a practical matter this has allowed the parties to resolve future 

problems by merely requesting a supplemental decree in an existing case 

rather than asking that a new Original action be permitted. 

Expenses and Special Master Fees 

All special masters are entitled to reimbursement of expenses. These, 

not surprisingly, have included: travel costs, court reporter fees, clerks’ 

28. At this stage the litigation approaches of the parties begin to diverge. States have typically taken exception to 

all or most of the recommendations against them. The federal government is more circumspect. The solicitor general 

carefully considers both the importance of the disputed matter and the strength of the competing arguments in taking 

exceptions. 

29. This is true whether or not the parties take exceptions. 

30. A longer time may be allowed on order of the Court. 

Part Three 379 

wages, postage, and anything else properly attributable to their assignment 

from the Court. It has been traditional, in tidelands cases at least, for the 

parties to contribute to a fund for the master’s expenses at the outset of 

proceedings and make additional contributions as the fund becomes 

depleted. The masters have kept precise accounts of expenditures from the 

fund and returned any excess to the parties at the end of the case. 

Federal judges who are serving as masters are already on the government 

payroll and receive no additional compensation. In contrast, masters from 

the private sector are entitled to fees for their services, pursuant to the orders 

appointing them. In lengthy cases the parties have sometimes asked the 

masters to accept advances on their eventual fees so as to avoid a large onetime expenditure at the conclusion. 

At the conclusion of the litigation a master will petition the Court for 

approval of his expenses and fees. The Court will fix amounts due and 

allocate costs among the parties. In most cases the obligations will be 

divided equally. However, success on the issues, or even ability to pay, may 

alter the formula. 

Original actions have proven to be an efficient means of resolving 

tidelands controversies. Although the federal district courts have concurrent 

jurisdiction, it is anticipated that controversies between the federal 

government and coastal states over title to submerged lands and maritime 

boundaries will continue to be taken directly to the Supreme Court. 

We hope that the legal principles and practical experience recounted in 

this volume will provide some assistance to those who litigate similar issues 

in our wake. 
APPENDICES A TO H 
Appendix A 

Glossary of Terms Used 

A 

Ambulatory: Not stationary. Baselines from which maritime boundaries are measured 

ambulate with accretion and erosion causing ambulation of the boundaries themselves. 

Ancient Title: A doctrine that may form the basis for the acquisition of territory that is 

considered, under international law, to be terra nullius or having no sovereign but susceptible 

of sovereignty. Closely related to the doctrine of historic title. Asserted by Massachusetts as 

an alternative to its historic title claim to Nantucket and Vineyard Sounds. 

ANWR: The Arctic National Wildlife Refuge. A large federal wildlife refuge in the 

northeast corner of Alaska. Its coastal boundaries and the status of waters within those 

boundaries were among the issues litigated in United States v. Alaska, No. 84 Original. 

Artificial Headlands: Man-made structures that form the mouths of inland water 

bodies. Although the Convention on the Territorial Sea and the Contiguous Zone refers to 

“natural” entrance points, the mouths of bays, rivers, and harbors may be formed by manmade features. 

Artificial Islands: Offshore structures or features that do not meet the Convention’s 

definition of “island” in that they were not “naturally formed.” Mineral production 

platforms and spoil banks are examples. Artificial islands are not part of the baseline from 

which maritime zones are measured. 

Assimilated to the Mainland: So closely related to the mainland as to be legally 

considered part of it. The Supreme Court determined in United States v. Louisiana that 

features that meet the Convention’s definition of “island” may nevertheless be treated as part 

of the mainland. The Court provided criteria for making such determinations. 

Assimilated to the Territorial Sea: The consequence of a pre-Convention proposal for 

dealing with water areas that lie between the mainland and offshore islands but are more 

than the breadth of the territorial sea from either. The proposal would have included such 

areas in the territorial sea. Article 4 of the Convention on the Territorial Sea and the 

Contiguous Zone permits such areas to be claimed as inland water. If straight baselines are 

not employed, the areas are high seas. 

B 

Baseline: The line from which maritime zones are measured. The coast line. A 

combination of the low-water line and closing lines across the mouths of inland water bodies. 

Baseline Committee: A Committee of the federal government’s Law of the Sea Task 

Force made up of representatives from federal agencies responsible for developing American 

international policy and/or enforcing domestic and international law in our various zones of 

maritime jurisdiction. The Committee’s primary purpose has been to apply principles of 

international law to the coastal geography of the United States and produce descriptions of 

our maritime zones. Lines produced by the Committee are printed on large-scale charts 

383 
384 Shore and Sea Boundaries 

published by the National Ocean Service. Those lines form the basis for the federal 

government’s litigation position in the tidelands cases. Also known as the “Coastline 

Committee.” 

Base Point: A point on the baseline, or coast line, that affects the outer limit of a 

maritime zone. 

Bay: An indentation of water into land that meets the requirements of Article 7 of the 

Convention on the Territorial Sea and the Contiguous Zone. An inland water body. 

Bisector of the Angle Test: One of a number of means for locating the natural 

entrance points to inland water bodies. Secondary to the 45-degree test. Used when no 

pronounced headland provides a terminus for the closing line. 

Breakwater: A man-made structure extending seaward from the natural coastline 

which has an apparently continuous low-water line. Often constructed to affect the 

movement of water. A harborwork. Part of the coast line from which maritime zones are 

measured. Often contrasted with piers. 

C 

Cannon Shot Rule: Said to be the original criterion for establishing the breadth of the 

marginal sea. Advanced by Cornelius Van Bynkershoek in 1702 when cannon were said to 

have a range of approximately 3 miles. 

Chapman Line: A tentative line proposed by the federal government as the “coast line” 

of the State of Louisiana. Based upon pre-Convention proposals for inland water 

delimitation that were superceded by the Supreme Court’s adoption of the Convention’s 

principles for Submerged Lands Act purposes. Named for Secretary Oscar L. Chapman of the 

Department of the Interior. 

Clear Beyond Doubt: The standard of proof that the Supreme Court has suggested is 

necessary to prove a historic water claim in the face of a federal disclaimer of historic status. 

Closing Line: The line dividing inland waters and the territorial sea at the mouth of a 

river, bay, or harbor. 

Coast Guard Line: Lines constructed by the United States Coast Guard to separate 

areas of the sea where the Inland Rules of the Road apply from those where the International 

Rules are in effect. Found by the Supreme Court to have no bearing on the location of the 

coast line or inland waters as those terms are used in the Convention on the Territorial Sea 

and the Contiguous Zone. 

Coast Line: The term used in the Submerged Lands Act to describe the low-water line and 

closing lines across the mouths of inland water bodies. The same as “baseline” in the Convention. 

Coast Protective Works: Man-made structures erected along the coast, such as jetties 

and groins. Harborworks. Treated as part of the coast line for purposes of maritime zone 

delimitation. 

Coastline: The water/land interface. The shoreline. A more general term than “coast line.” 

Coastline Committee: See: Baseline Committee. 

Contiguous Zone: A zone seaward of the territorial sea in which coastal states may 

assert jurisdiction short of complete sovereignty. Article 24 of the Convention on the 

Territorial Sea and the Contiguous Zone authorizes such a zone “to prevent infringement of 

its customs, fiscal, immigration or sanitary regulations in territory or territorial sea . . . .” 

Under the Convention the contiguous zone may extend no more than 12 miles from the 

coast line. See also: 1982 Law of the Sea Convention, Article 33. 
Appendix A 385 

Convention: Convention on the Territorial Sea and the Contiguous Zone. 

Convention on the Continental Shelf: One of the four Conventions on the law of 

the sea adopted at Geneva in 1958. 15 U.S.T. 471. 

Convention on the Territorial Sea and the Contiguous Zone: One of the four 

Conventions on the law of the sea adopted at Geneva in 1958 which, among other things, 

sets out principles for establishing the baseline from which maritime zones of jurisdiction 

will be measured. 15 U.S.T. 1606. Those principles were later adopted by the United States 

Supreme Court for purposes of implementing the Submerged Lands Act, 43 U.S.C. 1301 et 

seq. Sometimes referred to herein simply as “the Convention.” 

County Waters: An English predecessor to the modern concept of inland waters. 

According to Hale, the doctrine dated back to the early 14th century and provided that if 

waters were so narrow that the events on one side could be discerned from the opposite 

shore, the waters were inter fauces terrae and within the adjacent county. Massachusetts relied 

on the concept in its historic and ancient waters claims to Vineyard and Nantucket Sounds. 

D 

Disclaimer: A publicly stated federal position that the United States does not make a 

claim to particular waters. Disclaimers have been asserted to all alleged historic water claims 

in tidelands litigation. Prior to 1971 they were evidenced by federal litigation positions. 

Subsequent to 1971 they are also reflected in the Coastline Committee’s boundary depictions 

on official government charts. It is such disclaimers that trigger the “clear beyond doubt” 

burden of proof in litigation to establish historic title. 

Distributaries: Multiple branches of a river. The Mississippi River divides into 

numerous distributaries as it flows through the delta and enters the Gulf of Mexico through 

numerous mouths. 

Diurnal Tide: A tide with a cycle of approximately one day. Having one high and one 

low tide per day. The typical tide in the Gulf of Mexico. 

Double-Headed Bay: A pair of adjacent bays that share a central headland. If, when 

considered together, the two indentations meet the requirements of Article 7 of the 

Convention they may be combined to form a single juridical bay with a closing line joining 

their non-common headlands. 

Dredged Channel: An artificially maintained sea lane extending from an inland water 

body into the marginal sea to accommodate vessel traffic through coastal shallows. 

Louisiana contended that such submerged features are “harborworks” and part of the coast 

line. The Supreme Court held otherwise. 

E 

English Mile: A measure of distance. 5280 feet. Also known as a statute mile. As 

contrasted with a nautical or geographic mile of 6080.2 feet. 

English Seas: A maritime belt of sovereignty asserted around the British Isles by 

Charles I (1625-1649). Also called the “narrow seas.” 

Entrance Points: The points on the low-water line that are joined to create a closing 

line marking the seaward limits of inland waters. 

Equal Footing Doctrine: The Constitutional doctrine that states admitted to the 

Union after the adoption of the Constitution enter on an equal footing with the original 

states. In tidelands litigation this doctrine was the basis for the Supreme Court’s 
386 Shore and Sea Boundaries 

determination that California did not enter the Union with rights in the marginal sea 

because the original 13 states held no such rights. On the other hand, subsequently admitted 

states did acquire sovereignty over lands beneath inland waters because the original states 

had entered with such rights. 

Equidistant Line: A line that is at all times equidistant from two adjacent or opposite 

coast lines. It is, in the absence of special circumstances, the preferred method for 

constructing lateral offshore boundaries. Used to continue the common boundary between 

Texas and Louisiana (in the Sabine River) to the limit of their Submerged Lands Act grants. 

Also known as a “median line.” 

Excepted To: The term used to describe a litigant’s request to the Supreme Court that 

it not adopt a special master’s finding or recommendation in an Original action. Most 

tidelands cases have been initiated in the Supreme Court pursuant to Article III, Section 2 of 

the Constitution. They have then been assigned, by the Court, to a special master to take 

evidence and report his findings and recommendations to the Court. At that stage the parties 

are invited to “take exception” to the master’s findings and recommendations. 

F 

Fallback Line: A line of 24 miles length constructed within an overlarge bay to define 

the limit of inland waters. Article 7 of the Convention provides that the inland waters of a 

bay will extend to a line between its natural entrance points only if those points are 24 miles 

or less apart. The inland waters of a bay that meets all requirements of Article 7 except for 

the 24-mile maximum mouth extend seaward to an arbitrary line of 24 miles constructed 

within the bay such that the maximum water area is enclosed. 

Fictitious Bay: A water area enclosed by the mainland and offshore islands. Some preConvention proposals would have treated such areas as inland waters. Others would have 

treated them as territorial sea, even though farther from land than the claimed breadth of the 

territorial sea. Under the Convention such areas are territorial seas and high seas unless 

enclosed by Article 4 straight baselines. 

Forty-five Degree Test: The preferred method of locating the proper headlands and 

entrance points for an inland water body. The test determines whether the coastline between 

two potential entrance points faces more on the inland water body or the open sea. If the 

former, the more seaward potential headland is employed; if the latter, it is rejected and the 

more landward option is similarly evaluated. 

Fringing Islands: A series of islands that fringe, or mask, a mainland coast. Often 

known as barrier islands. Prior to the Convention there was no international agreement on 

how to treat the waters landward of such islands. The Convention provides two means. The 

coast line of the mainland and each island may be used separately as baselines for measuring 

zones of maritime jurisdiction, leaving open the possibility of high seas enclaves or cul-desacs in the intervening waters. Article 4 straight baselines may also be adopted, making all 

intervening waters inland. 

G 

Garrett-Scudder Line: A series of straight lines drawn along portions of the Alaska coast 

for fisheries administration purposes and said by Alaska to evidence a claim of inland water 

sovereignty in support of its historic waters claim to Cook Inlet. The Supreme Court disagreed. 

Geographic Mile: A unit of linear measure equal to one minute of latitude at the 

equator. 6080.2 feet. Also known as a nautical mile. Unless otherwise noted, references to 

a “mile” in this work are to the geographic or nautical mile. 
Appendix A 387 

Groin: An artificial structure, like a small jetty, extending from the shore. Usually for 

the purpose of preventing beach erosion. Treated as a harborwork. Part of the coast line 

from which Submerged Lands Act grants and zones of maritime jurisdiction are measured. 

H 

Harbor: A place where ships may find shelter. A harbor may be natural or artificially 

constructed. In either case its waters are inland. The limits of its inland waters are 

determined, at least in part, by their use as a harbor rather than the mere application of 

delimitation principles to geography, as is the case with bays and rivers. 

Harborwork: Artificial structures erected to protect the coast or provide shelter. Treated 

as part of the coast line pursuant to Article 8 of the Convention. 

Headland: A geographic feature that serves to give an inland water body its landlocked 

nature. A headland may be natural or man-made. It must be above mean low water but not 

by any significant extent. It will usually provide an appreciable change in the direction of 

the coast. 

High-Seas Enclave: An area of high seas entirely surrounded by territorial seas 

generated by the mainland and islands that lie more than twice the breadth of the territorial 

sea offshore. 

Historic Bay: A water area over which the coastal state has asserted sovereignty, over a 

long period of time, with the acquiescence of foreign nations. The geographic requirements 

for a juridical bay, as set out in Article 7 of the Convention, need not be met. 

Historic Boundary: As used in this volume, a state’s boundary at the time it entered 

the Union. Congress, through the Submerged Lands Act, permitted states bordering on the 

Gulf of Mexico to prove historic boundaries of up to 3 marine leagues (9 nautical miles) 

offshore. Their Submerged Lands Act grants would then extend to the lesser of those lines or 

lines 3 leagues from the present coast line. Florida and Texas provided such proof and 

received the extraordinary grant. Louisiana, Mississippi, and Alabama could not. 

Historic Inland Waters: Water areas over which inland water jurisdiction has been 

asserted for a substantial period of time with the acquiescence of foreign states. See: Historic Bay. 

Historic Territorial Seas: Water areas over which territorial sea jurisdiction has been 

asserted for a substantial period of time with the acquiescence of foreign states. 

I 

Inland Water Line: A series of straight lines developed by the Coast Guard to separate 

areas that are subject to its Inland Rules of the Road from those to which the International 

Rules apply. The lines have no bearing on inland water determinations for Convention or 

Submerged Lands Act purposes. See: Coast Guard Line. 

Inland Waters: Waters landward of the baseline from which the marginal seas are 

measured and over which complete sovereignty is exercised. Also known as “internal waters.” 

Innocent Passage: The right of a vessel to navigate through the territorial sea of a 

foreign state for purposes of traveling from one area of high seas to another or passing 

between the high seas and the inland waters of the coastal state. 

Inter Fauces Terrae: Landlocked. Literally “within the jaws of the land.” The initial 

requirement for juridical bay status under Article 7 of the Convention. 

Internal Waters: See: Inland Waters. 
388 Shore and Sea Boundaries 

Intersected Islands: Islands that lie on a direct line between the mainland headlands 

of an inland water body, thereby forming multiple mouths to that body. 

J 

Jetty: A substantial, artificial structure erected on the coast for the purpose of extending 

the flow of a river or protecting a harbor or beach. A harborwork. Part of the coast line for 

Convention and Submerged Lands Act purposes. See: Breakwater. 

Juridical Bay: An indentation into the mainland that qualifies for inland water status 

under the criteria of Article 7 of the Convention. Because the provisions of Article 7 are selfexecuting, a coastal state need not put foreign nations on notice of the inland water status of 

juridical bays. 

K 

King’s Chambers: Coastal waters within lines between distant headlands that “squared 

off” the British Isles. Proclaimed by James I in 1604, the waters constituted a neutral zone 

within which foreign warships were prohibited from engaging in combat. The Chambers 

have no continuing significance. 

L 

Landlocked: Separated from the open sea by mainland headlands. For practical 

purposes, any indentation into the mainland that meets the requirements of Article 7 of the 

Convention. 

Lateral Offshore Boundary: The offshore extension of land boundaries between 

adjacent coastal states to the limits of their offshore jurisdiction. In the absence of agreement 

such boundaries are described as a median or equidistant line. Convention, Article 12. The 

Texas/Louisiana, South Carolina/Georgia, and Maine/New Hampshire lateral boundaries 

have been litigated and are discussed in this volume. 

Law of the Sea Convention: The United Nations’ 1982 Convention that, for most 

purposes, supercedes the four Geneva Conventions of 1958. The “baseline” provisions of the 

Law of the Sea Convention do not deviate significantly from those of the Convention on the 

Territorial Sea and the Contiguous Zone. The Supreme Court’s adoption of the 1958 

principles for purposes of the Submerged Lands Act is not affected by the new Convention. 

Entered into force on November 16, 1994. The United States has recognized most provisions 

of the 1982 Convention as customary international law (including the baseline provisions) 

but, at the time of this writing, has not ratified the Convention. 

Limits of the Tides Test: A proposal that river waters, running upstream to the limit 

of tidal effect, should be included within the area of the water body into which they flow for 

purposes of determining whether that body qualifies as inland water (that is, meets the 

semicircle test of Article 7). 

Littoral: Bordering on the sea. 

Low-Tide Elevation: A naturally formed area of land that is surrounded by and above 

water at low tide but below water at high tide. Low-tide elevations serve as part of the coast 

line when they are within the breadth of the territorial sea of the mainland (either uplands 

or inland waters) or an island. Convention, Article 11. 
Appendix A 389 

M 

Marginal Sea: The maritime belt over which a coastal state asserts sovereignty. See: 

Territorial Sea. 

Marine League: Three nautical, or geographic, miles. 

Median Line: See: Equidistant Line. 

Mixed Tides: Two high and two low tides per day. Typical of the Pacific coast of the 

United States. 

Mouth: Entrance to an inland water body. The line that divides inland waters from the 

territorial sea. 

Mudlumps: Small islands found near the various mouths of the Mississippi River. 

Multiple Mouths: More than one entrance to an inland water body. The result of 

islands either intersected by or in the vicinity of, and screening a large proportion of, the 

closing line between mainland-to-mainland headlands. 

N 

Narrow Seas: See: English Seas. 

NPR-A: National Petroleum Reserve–Alaska. A federal reservation along the central 

Arctic coast of Alaska. The United States and Alaska disputed the location of its coastal 

boundary and title to certain submerged lands within that boundary in United States v. 

Alaska, No. 84 Original. 

Natural Entrance Points: Points on the headlands of an inland water body that serve 

as the termini of its closing line. 

Naturally Formed: Composed of natural substance which has been naturally placed. 

One of the requirements for island and low-tide elevation status under Articles 10 and 11 of 

the Convention. 

Nautical Mile: See: Geographic Mile. 

Navigable Waters: Waters that are either tidally influenced or navigable in fact. 

Normal Baseline: The low-water line as adopted for large-scale charts by the official 

government charting agency. 

O 

Original Action: A legal action initiated in the Supreme Court, rather than a lower 

federal court, as provided in Article III, Section 2 of the Constitution. All but one of the 

tidelands cases discussed herein were filed as Original actions in the Supreme Court. 

OCSLA: The Outer Continental Shelf Lands Act. 43 U.S.C. 1331 et seq. Federal 

legislation which, for the first time, provided a mechanism for the administration of mineral 

resources seaward of the territorial sea. Enacted shortly after passage of the Submerged Lands 

Act in 1953. 
390 Shore and Sea Boundaries 

Overall-Unit-Area: The area along the southern California coast between the mainland 

and a line running from Point Conception to Point Loma around the seaward side of all 

islands. Unsuccessfully claimed by California as part of its inland waters. 

Overlarge Bay: An indentation into the mainland that meets all requirements of 

Article 7 for inland water status except that its entrance is more than 24 miles across. Cook 

Inlet, Alaska, is an example. Article 7 provides that in such circumstances a “fallback line” of 

24 miles shall be drawn within the indentation to enclose the maximum possible water area. 

P 

Paramount Rights: The term used by the Supreme Court to describe the federal 

interest in offshore submerged lands prior to passage of the Submerged Lands Act. 

Pier: An artificial structure erected on the coast and extending into the sea. 

Distinguished from jetties and breakwaters in that its platform is generally supported by 

pilings that do not produce a continuous low-water line and are not intended to affect the 

movement of water or provide a coast protective function. 

Pollard Rule: The proposition that subsequently admitted states entered the Union on 

an equal footing with the original 13 states, thereby acquiring title to submerged lands 

beneath the inland navigable waters within their boundaries. 

Port: A protected place along the coast in which ships may take refuge from storms or 

transfer cargo. A harbor. Protection may be provided by natural or artificial features. The 

waters of a port are inland. 

Q 

Quitclaim: A release or relinquishment of all of the grantor’s interest without a 

warranty of title. 

R 

Roadstead: An area of the sea used for the anchorage of vessels and transhipment of 

cargo, usually without the protection from weather associated with ports and harbors. 

Roadsteads are part of the territorial sea but are not inland waters. 

S 

Screening Islands: Islands that lie on or near the mainland-to-mainland closing line 

across the mouth of an inland water body and form multiple mouths to that body. 

Self-Executing: Occurring by operation of law. Needing no further act for 

implementation. 

Semicircle Test: The requirement of Article 7 that to qualify as a juridical bay an 

indentation in the coast must, at a minimum, contain a water area equivalent to that of a 

semicircle whose diameter is that of the indentation’s mouth. 

Shortest Distance Test: The method for locating the entrance point of an inland water 

body when only one distinct headland exists. In such cases the shortest possible line is 

drawn from that headland to the opposite coast. 

Solicitor General: The official in the United States Department of Justice who is 

responsible for all federal litigation in the United States Supreme Court. 
Appendix A 391 

Special Circumstances: Considerations that might justify adopting something other 

than an equidistant line as a lateral boundary dividing the offshore jurisdiction of adjacent 

states. Examples include historic assertions of jurisdiction, navigation channels, offshore 

islands, or any other physical or geographic feature that might result in an inequitable 

division of the seabed. 

Special Master: An individual appointed by a court to conduct evidentiary 

proceedings, hear arguments, and report his findings and recommendations. The Supreme 

Court used special masters for each of the tidelands’ Original actions that included the need 

for significant factual findings. (Those upon which the parties could agree to all relevant 

facts, or which involved only legal determinations, have been resolved by the Court without 

the help of masters.) As a matter of law the Supreme Court reviews the entire record of an 

Original action. As a factual matter the Court almost always agrees with its masters’ 

conclusions. Special masters have been highly respected senior federal judges, academics, 

and private practitioners. 

Spoil Bank: An artificial formation created by the deposit of dredged materials on the 

seabed. Spoil banks that are connected to the natural coastline are part of the baseline from 

which maritime zones are measured. Those that are unattached are artificial islands and are 

not part of the baseline. 

Statute Mile: 5280 feet. Also known as a “land mile” or “English mile.” 

Straight Baselines: An artificial coast line from which maritime zones are measured. 

Appropriate for coastlines that are deeply indented or masked by a fringe of islands. Article 

4 of the Convention provides the rules for straight baselines. The United States has never 

adopted such baselines. 

Submerged Lands Act: Federal legislation that granted to the coastal states federal 

rights to natural resources within 3 nautical miles (up to 9 miles for Texas and the Gulf coast 

of Florida) of the coast line. 43 U.S.C. 1301 et seq. 

Subsidiary Water Body: A river that empties into, or bay that opens onto, another 

water body. Numerous questions have arisen in the tidelands litigation as to whether or 

when the area of subsidiary water bodies may be included for purposes of applying the 

semicircle test to a primary indentation under consideration for inland water status. 

T 

Ten-Mile Rule: A pre-Convention proposal for coast line delimitation that would have 

included as inland any waters lying between the mainland and offshore islands that were so 

closely grouped that no entrance to the intervening waters exceeded 10 nautical miles. Under 

the Convention such areas can, in most cases, be enclosed with Article 4 straight baselines. 

Territorial Sea: The offshore belt in which a coastal state has exclusive jurisdiction. 

The territorial sea may not extend more than 12 nautical miles from the coast line. See: 

Marginal Sea. 

Territorial Waters: The territorial sea and inland waters of a state. 

Thalweg: The middle of the main navigation channel of a river. Often serving as the 

boundary between two states. As opposed to the geographic middle of the river, which may 

also be used as a boundary. 
392 Shore and Sea Boundaries 

Three-League Boundary: The historic offshore boundaries of Texas and of Florida in 

the Gulf of Mexico. The seawardmost extent of Texas’s and Florida’s Submerged Lands Act 

grant in the Gulf. 

Tidelands: The zone between the mean high-water line and the mean low-water line, 

commonly referred to as the “beach.” Waters above the tidelands are inland, being landward 

of the coast line. Despite the traditional reference to “tidelands litigation,” the United States 

never questioned state jurisdiction over these lands. The “tidelands cases” involved only 

submerged lands seaward of the low-water line. 

Tidelands Cases: That body of litigation between the federal government and the 

coastal states that has determined ownership over submerged lands and resources seaward of 

the coast line and defined that coast line through the application of international law. 

Truman Proclamation: A proclamation through which the United States unilaterally 

claimed exclusive jurisdiction over the resources of its continental shelf beyond the marginal 

sea. Presidential Proclamation No. 2667 of September 28, 1945, 59 Stat. 884. 

W 

Well-Marked Indentation: An indentation of water into the mainland that is more 

than a mere curvature of the coast. The first requirement for juridical bay status under Article 

7 of the Convention. 
Appendix B 

Table of Authorities 

Judicial Decisions and Decrees 

Alabama v. Texas and Rhode Island, 347 U.S. 272 (1954) 

Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918) 

The Anna, 5 C. Rob. 373, 165 Eng. Rep. 809 (Adm. 1805) 

Annakumaru Pillai v. Muthopayal, 27 Indian L.R. 551 (Madras 1903) 

Askew v. American Waterways Operators, Inc., 411 U.S. 325 (1973) 

Borax, Ltd. v. Los Angeles, 296 U.S. 10 (1935) 

California ex rel. State Lands Comm’n v. United States, 457 U.S. 273 (1982) 

Camfield v. United States, 167 U.S. 518 (1897) 

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) 

Civil Aeronautics Board v. Island Airlines, Inc., 235 F.Supp. 990 (D.Ha. 1964), aff’d, 

352 F.2d 735 (9th Cir. 1965) 

Commonwealth v. Peters, 53 Mass. 387 (1847) 

Re Dominion Coal Company and County of Cape Breton, 40 D.L.R. 2d 593 

(Sup. Ct. N.S. 1963) 

El Salvador v. Honduras, 1992 I.C.J. 351 

The Fisheries Case (United Kingdom v. Norway), 1951 I.C.J. 116 

Inupiat Community v. United States, 548 F.Supp. 182 (D.Ak. 1982), aff’d, 746 F.2d 

570 (9th Cir. 1984), cert. denied, 474 U.S. 820 (1985) 

Jones v. United States, 137 U.S. 202 (1890) 

The King v. Bruce [1812] 2 Leach 1094, 168 E.R. 643 

Light v. United States, 220 U.S. 523 (1911) 

Manchester v. Massachusetts, 139 U.S. 240 (1891) 

Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842) 

Middleton v. United States, 32 F.2d 239 (5th Cir. 1929) 

Montana v. United States, 450 U.S. 544 (1981) 

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

People v. Stralla, 14 Cal. 2d 617, 96 P.2d 941 (1939) 

Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988) 

393 
394 Shore and Sea Boundaries 

Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845) 

Post Office v. Estuary Radio Ltd. [1968] 2 Q.B. 740 

The Queen v. Keyn [1876] L.R. 2 Exch. Div. 63 

Shively v. Bowlby, 152 U.S. 1 (1894) 

Skiriotes v. Florida, 313 U.S. 69 (1941) 

Soult v. Africaine, 22 Fed. Cases 13179 (D.S.C. 1804) 

Temple of Preah Vihear, 1961 I.C.J. 6 

Texas v. Louisiana, 414 U.S. 1107 (1973) 

Texas v. Louisiana, 416 U.S. 965 (1974) 

Texas v. Louisiana, 426 U.S. 465 (1976) 

Texas v. Louisiana, 431 U.S. 161 (1977) 

United States v. Alaska, 423 F.2d 764 (9th Cir. 1970), cert. denied, 400 U.S. 967 (1970) 

United States v. Alaska, 352 F.Supp. 815 (D.Ak. 1972), aff’d,497 F.2d 1155 

(9th Cir. 1974), rev’d, 422 U.S. 184 (1975) 

United States v. Alaska, 503 U.S. 569 (1992) 

United States v. Alaska, 521 U.S. 1 (1997) 

United States v. California, 329 U.S. 689 (1946) 

United States v. California, 332 U.S. 19 (1947) 

United States v. California, 332 U.S. 804 (1947) 

United States v. California, 334 U.S. 825 (1948) 

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

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

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

United States v. California, 436 U.S. 32 (1978) 

United States v. California, 447 U.S. 1 (1980) 

United States v. California, 449 U.S. 408 (1981) 

United States ex rel. Greathouse v. Dern, 289 U.S. 352 (1933) 

United States v. Florida, 363 U.S. 121 (1960) 

United States v. Florida, 404 U.S. 998 (1971) 

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

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

United States v. Florida and Texas, 434 U.S. 1031 (1978) 

United States v. Grush, 26 Fed. Cas. 48 (C.C. D. Mass. 1829) (No. 15,268) 

United States v. Holt State Bank, 270 U.S. 49 (1926) 
Appendix B 395 

United States v. Louisiana, 339 U.S. 699 (1950) 

United States v. Louisiana, 340 U.S. 899 (1950) 

United States v. Louisiana, 354 U.S. 515 (1957) 

United States v. Louisiana, 363 U.S. 1 (1960) 

United States v. Louisiana, 395 U.S. 901 (1969) 

United States v. Louisiana, 422 U.S. 13 (1975) 

United States v. Louisiana, 452 U.S. 726 (1981) 

United States v. Louisiana (Alabama and Mississippi Boundary Case), 470 U.S. 93 (1985) 

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

United States v. Louisiana (Louisiana Boundary Case), 420 U.S. 529 (1975) 

United States v. Louisiana (Texas Boundary Case), 389 U.S. 155 (1967) 

United States v. Louisiana (Texas Boundary Case), 394 U.S. 1 (1969) 

United States v. Louisiana (Texas Boundary Case), 394 U.S. 836 (1969) 

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

United States v. Maine, et al., 421 U.S. 958 (1975) 

United States v. Maine, et al., 423 U.S. 1 (1975) 

United States v. Maine (Massachusetts Boundary Case), 452 U.S. 429 (1981) 

United States v. Maine (Massachusetts Boundary Case), 475 U.S. 89 (1986) 

United States v. Maine (Rhode Island and New York Boundary Case), 469 U.S. 504 (1985) 

United States v. Midwest Oil Co., 236 U.S. 459 (1915) 

United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655 (1973) 

United States v. Republic Steel Corp., 362 U.S. 482 (1960) 

United States v. San Francisco, 310 U.S. 16 (1940) 

United States v. Sorina, No. 74-325 (S.D. Tx.. Sep. 9, 1974), aff’d without opinion, 

511 F.2d 1401 (5th Cir.1975) 

United States v. Texas, 339 U.S. 707 (1950) 

Utah v. United States, 394 U.S. 89 (1969) 

Utah Div. of State Lands v. United States, 482 U.S. 193 (1987) 

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

Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948) 

Warner v. Replinger, 397 F.Supp. 350 (D.R.I. 1975), aff’d sub nom., Warner v. 

Dunlap, 532 F.2d 767 (1st Cir. 1976), petition for cert. filed sub nom., Ball v. Dunlop, 

Docket No. 75- 6990 

Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971) 
396 Shore and Sea Boundaries 

SPECIAL MASTERS’ REPORTS 

Georgia v. South Carolina, Report of October Term 1975, Judge Walter E. Hoffman 

New Hampshire v. Maine, Report of October 8, 1975, Retired Justice Tom C. Clark 

Texas v. Louisiana, Report of October Term 1974, Judge Robert Van Pelt 

United State v. Alaska, Report of March 1996, Mr. J. Keith Mann 

United States v. California, Report of October 14, 1952, Mr. William H. Davis 

United States v. California, Report of August 20, 1979, Judge Alfred A. Arraj 

United States v. Florida, Report of December 1973, Judge Albert B. Maris 

United States v. Florida, Report of December 30, 1975, Judge Albert B. Maris 

United States v. Louisiana, Report of July 31, 1974, Mr. Walter P. Armstrong, Jr. 

United States v. Louisiana (Alabama and Mississippi Boundary Cases), 

Report of April 9, 1984, Mr. Walter P. Armstrong, Jr. 

United States v. Louisiana (Alabama and Mississippi Boundary Cases), 

Report of March 16, 1987, Mr. Walter P. Armstrong, Jr. 

United States v. Maine, et al., Report of August 27, 1974, Judge Albert B. Maris 

United States v. Maine (Massachusetts Boundary Case), 

Report of October Term 1979, Judge Walter E. Hoffman 

United States v. Maine (Massachusetts Boundary Case), Report of May 26, 1981, 

Judge Walter P. Hoffman 

United States v. Maine (Massachusetts Boundary Case), Report of October 

Term 1984, Judge Walter E. Hoffman 

United States v. Maine (Rhode Island, New York), Report of October Term 1983, 

Judge Walter E. Hoffman 

BIBLIOGRAPHY 

Beazley, Maritime Limits and Baselines: A Guide to Their Delineation, 

The Hydrographic Society, Special Publication No. 2 (2nd ed. Rev. 1978) 

Boggs, Delimitation of Seaward Areas Under National Jurisdiction, 45 

American Journal of International Law 240 (1951) 

Bouchez, The Regime of Bays in International Law (1964) 

Bowett, The Legal Regime of Islands in International Law (1979) 

Churchill and Lowe, The Law of the Sea (1983) 

Coastal States Organization, Inc., Putting the Public Trust Doctrine to Work (2nd ed. 1997) 

Department of State, Sovereignty of the Seas (1969) 

Fachille, Traite de Droit International Public, pt. II (8th ed. 1925) 
Appendix B 397 

Fitzmaurice, Some Results of the Geneva Conference on the Law of the Sea, 8 

International and Comparative Law Quarterly (1959) 

Fulton, The Sovereignty of the Sea (1911) 

Gidel, Le Droit International Public de la Mer (1934) 

Griffen, Jones and McAlinden, Establishing Tidal Datum Lines for Sea Boundaries (1967) 

Griffin, The Emerging Law of Ocean Space, 1 The International Lawyer (1966) 

Gross, The Maritime Boundaries of the States, 64 Michigan Law Review (1966) 

1 Hackworth, Digest of International Law (1940) 

Hodgson, Islands: Normal and Special Circumstances, Law of the Sea: The 

Emerging Regime of the Oceans (Gamble and Pontecorvo eds. 1974) 

Hodgson and Alexander, Towards an Objective Analysis of Special Circumstances, Law 

of the Sea Institute, University of Rhode Island, Occasional Paper No. 13 (1972) 

International Hydrographic Bureau, Limits of the Oceans and Seas, Special 

Publication No. 23 (3rd ed. 1949) 

Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927) 

Johnson, Artificial Islands, 4 International Law Quarterly (1951) 

1 Lauterpacht, Oppenheim’s International Law (8th ed. 1955) 

Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: 

Questioning the Public Trust Doctrine, 71 Iowa Law Review 631 (1986) 

Lumb, The Law of the Sea and Australian Off-Shore Areas (2nd ed. 1978) 

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

1 Moore, International Law Digest (1906) 

1 O’Connell, The International Law of the Sea (Shearer ed. 1984) 

Papadakis, The International Legal Regime of Artificial Islands (1977) 

Pearcy, Geographical Aspects of the Law of the Sea, 49 Annals of the Association 

of American Geographers No. 1 (1959) 

Pearcy, Measurement of the U.S. Territorial Sea, Department of State Bulletin (June 29, 1959) 

Prescott, The Maritime Political Boundaries of the World (1985) 

Proudfoot, Measurement of Geographic Area, U.S. Department of Commerce (1946) 

Reed, Koester and Briscoe, The Reports of the Special Masters of the Supreme Court in 

the Submerged Land Cases 1949-1987 (1991) 

Roach and Smith, United States Responses to Excessive Maritime Claims (2nd ed. 1994) 

1 Shalowitz, Shore and Sea Boundaries (1962) 

2 Shalowitz, Shore and Sea Boundaries (1964) 

Shalowitz, The Concept of a Bay as Inland Waters, Surveying and Mapping, Vol. XIII, 

No. 4 (1953) 
398 Shore and Sea Boundaries 

Smith, A Geographical Primer to Maritime Boundary Making, 12 Ocean Development 

and International Law Journal (1982) 

Sohn and Gustafson, The Law of the Sea (1984) 

Stern, Gressman, Shapiro and Geller, Supreme Court Practice (7th ed. 1993) 

Strohl, The International Law of Bays (1963) 

Swarth, Offshore Submerged Lands, An Historical Synopsis, U.S. Department of Justice, 

Land and Natural Resources Division Journal, Vol. 6, No. 3 (April 1968) 

Symmons, The Maritime Zones of Islands in International Law (1979) 

Teutenberg, The Evolution of the Law of the Sea: A Study of Resources and Strategy 

With Special Regard to Polar Regions (1984) 

United Nations, Historic Bays, Memorandum by the Secretariat of the United 

Nations, A/CONF. 13/1 

United Nations, Juridical Regime of Historic Waters, Including Historic Bays, 2 

Yearbook of the International Law Commission, U.N. Doc. A/CN.4/143 (1962) 

4 Whiteman, Digest of International Law (1965) 
Appendix C 

Relevant Portions of the Submerged Lands Act,

As Amended 

Codified at 43 United States Code 1301 et seq. 

1301. Definitions 

When used in this subchapter and subchapter II of this chapter — 

(a) The term “lands beneath navigable waters” means — 

(1) all lands within the boundaries of each of the respective 

States which are covered by nontidal waters that were 

navigable under the laws of the United States at the time such 

States became a member of the Union, or acquired 

sovereignty over such lands and waters thereafter, up to the 

ordinary high water mark as heretofore or hereafter modified 

by accretion, erosion and reliction; 

(2) all lands permanently or periodically covered by tidal 

waters up to but not above the line of mean high tide and 

seaward to a line three geographical miles distant from the 

coast line of each such State and to the boundary line of each 

such State where in any case such boundary as it existed at 

the time such States became a member of the Union, or as 

heretofore approved by Congress, extends seaward (or into 

the Gulf of Mexico) beyond three geographical miles, and 

(3) all filled in, made, or reclaimed lands which formerly 

were lands beneath navigable waters, as hereinabove defined; 

(b) The term “boundaries” includes the seaward boundaries of a 

State or its boundaries in the Gulf of Mexico or any of the Great 

Lakes as they existed at the time such State became a member of the 

Union, or as heretofore approved by the Congress, or as extended or 

confirmed pursuant to section 1312 of this title but in no event shall 

the term “boundaries” or the term “lands beneath navigable waters” 

be interpreted as extending from the coast line more than three 

geographical miles into the Atlantic Ocean or the Pacific Ocean, or 

more than three marine leagues into the Gulf of Mexico, except that 

any boundary between a State and the United States under this 

subchapter or subchapter II of this chapter which has been or is 

hereafter fixed by coordinates under a final decree of the United 

States Supreme Court shall remain immobilized at the coordinates 

provided under such decree and shall not be ambulatory; 

399 
400 Shore and Sea Boundaries 

1311. Rights of States 

(a) Confirmation and establishment of title and ownership of lands 

and resources; management, administration, leasing, development, and use 

It is hereby determined and declared to be in the public interest that 

(1) title to and ownership of the lands beneath navigable waters within the 

boundaries of the respective States, and the natural resources with such 

lands and waters, and (2) the right and power to manage, administer, lease, 

develop, and use the said lands and natural resources all in accordance 

with applicable State law be, and they are hereby, subject to the provisions 

hereof, recognized, confirmed, established, and vested in and assigned to 

the respective States or the persons who were on June 5, 1950, entitled 

thereto under the law of the respective States in which the land is located, 

and the respective grantees, lessees, or successors in interest thereof; 

(b) Release and relinquishment of title and claims of United States; 

payment to States of moneys paid under leases 

(1) The United States hereby releases and relinquishes unto said 

States and persons aforesaid, except as otherwise reserved herein, all right, 

title, and interest of the United States, if any it has, in and to all said lands, 

improvements, and natural resources; (2) the United States hereby releases 

and relinquishes all claims of the United States, if any it has, for money or 

damages arising out of any operations of said States or persons pursuant to 

State authority or within said lands and navigable waters; and (3) the 

Secretary of the Interior or the Secretary of the Navy or the Treasurer of the 

United States shall pay to the respective States or their grantees issuing 

leases covering such lands or natural resources all moneys paid thereunder 

to the Secretary of the Interior or to the Secretary of the Navy or to the 

Treasurer of the United States and subject to the control of any of them or 

to the control of the United States on May 22, 1953, except that portion of 

such moneys which (1) is required to be returned to a lessee; or (2) is 

deductible as provided by stipulation or agreement between the United 

States and any of said States; 

1312. Seaward boundaries of States 

The seaward boundary of each original coastal State is hereby 

approved and confirmed as a line three geographical miles distant 

from its coast line or, in the case of the Great Lakes, to the international 

boundary. Any State admitted subsequent to the formation of the Union 

which has not already done so may extend its seaward boundaries to a line 

three geographical miles distant from its coast line, or to the international 

boundaries of the United States in the Great Lakes or any other body of 

water traversed by such boundaries. Any claim heretofore or hereafter 

asserted either by constitutional provision, statute, or otherwise, indicating 
Appendix C 401 

the intent of a State so to extend its boundaries is hereby approved and 

confirmed, without prejudice to its claim, if any it has, that its boundaries 

extend beyond that line. Nothing in this section is to be construed as 

questioning or in any manner prejudicing the existence of any State’s 

seaward boundary beyond three geographical miles if it was so provided by 

its constitution or laws prior to or at the time such State became a member 

of the Union, or it has been heretofore approved by Congress. 

1313. Exceptions from confirmation and establishment of States’ title, 

power and rights 

There is excepted from the operation of section 1311 of this title — 

(a) all tracts or parcels of land together with all accretions thereto, 

resources therein, or improvements thereon, title to which has been lawfully 

and expressly acquired by the United States from any State or from any 

person in whom title had vested under the law of the State or of the United 

States, and all lands which the United States lawfully holds under the law of 

the State; all lands expressly retained by or ceded to the United States when 

the State entered the Union (otherwise than by a general retention or 

cession of lands underlying the marginal sea); all lands acquired by the 

United States by eminent domain proceedings, purchase, cession, gift, or 

otherwise in a proprietary capacity; all lands filled in, built up, or 

otherwise reclaimed by the United States for its own use; and any rights the 

United States has in lands presently and actually occupied by the United 

States under claim of right; 

(b) such lands beneath navigable waters held, or any interest in 

which is held by the United States for the benefit of any tribe, band, or 

group of Indians or for individual Indians; and 

(c) all structures and improvements constructed by the United States 

in the exercise of its navigational servitude. 
Appendix D 

A Partial List of Federal Statutes Whose 

Administration and Enforcement Require 

Application of the Coastline Principles 

Explored in this Volume 

Although the maritime boundary principles discussed in this volume have, for the 

most part, been developed in litigation under the Submerged Lands Act, 43 U.S.C. 

1301 et seq., they are equally important to defining the geographic reach of 

innumerable other federal and state statutes—both civil and criminal. The 

following is a list of common statutory phrases whose definition is dependent on 

the application of these principles. 

Baseline 

Coastline (or Coast Line) 

Coastal Waters 

Coastal Zone 

Contiguous Zone 

Continental Shelf 

Customs Zone 

High Seas 

Marine Environment 

Maritime Environment 

Navigable Waters 

Navigable Waters of the United States 

Ocean Waters 

Territorial Limits of the United States 

Territorial Sea (or Seas) 

Territorial Waters 

Territorial Waters of the United States 

Territory 

Territory and Waters 

Seaward Boundary of a State 

United States 

Waters of the United States 

Waters Subject to the Jurisdiction of the United States 

403 
404 Shore and Sea Boundaries 

Federal statutes whose enforcement requires application of the coast line 

principles discussed in this volume. 1 

Travel Control of Citizens and Aliens During War, 8 U.S.C. 1185 

Powers of Immigration Officers, 8 U.S.C. 1357 

Supply to Foreign Naval Vessels, 10 U.S.C. 7227 

Maritime Prizes During War, 10 U.S.C. 7651 

Safety of Naval Vessels, 14 U.S.C. 91 

Atlantic Tunas Convention Act, 16 U.S.C. 971 

Eastern Pacific Tuna Fishing Act, 16 U.S.C. 972 

Marine Mammal Protection Act, 16 U.S.C. 1362 

Coastal Zone Management Act. 16 U.S.C. 1451 

Endangered Species Act, 16 U.S.C. 1538 

Magnuson Fishery Conservation and Management Act, 16 U.S.C. 1802 

Atlantic Striped Bass Conservation Act, 16 U.S.C. 1851 

Driftnet Impact Monitoring Assessment and Control Act of 1987, 

16 U.S.C. 1822, note 

Salmon and Steelhead Conservation and Enhancement Act, 

16 U.S.C. 3302 

North Atlantic Salmon Fishing Act, 16 U.S.C. 3606 

Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, 

16 U.S.C. 4701 

Gambling Ships, 18 U.S.C. 1083 

Destruction or Misuse of Vessel, 18 U.S.C. 2274 

Tariff Act of 1930, 19 U.S.C. 1401 

Aviation Smuggling, 19 U.S.C. 1590 

U.S.–Canada Free Trade Agreement Act, 19 U.S.C. 2112 

Submarines, 22 U.S.C. 451 

International Narcotics Control, 22 U.S.C. 2291 

Internal Revenue Code, 26 U.S.C. 48, 274, 638 

1. Taken, in part, from Executive Branch submissions to the United States House of Representatives Merchant 

Marine and Fisheries Committee on its consideration of H.R. 3842, a bill to extend the territorial sea and contiguous 

zones of the United States. l02d Cong., 2d sess. 
Appendix D 405 

Foreign Sovereign Immunities Act, 28 U.S.C. 1603 

Deep Seabed Hard Mineral Resources Act, 30 U.S.C. 1403 

High Seas and Inland Demarcation Lines, 33 U.S.C. 151 

River and Harbor Act, 33 U.S.C. 403 

Anchorage Grounds, 33 U.S.C. 471 

Longshore Workers Compensation, 33 U.S.C. 902 

National Sea Grant College Program Act, 33 U.S.C. 1122 

Vessel Bridge-to-Bridge Communications Act, 33 U.S.C. 1201 

Ports and Waterways Safety Act, 33 U.S.C. 1223 

Clean Water Act, 33 U.S.C. 1251, 1311 

Ocean Dumping Act, 33 U.S.C. 1401 

Oil Pollution Act of 1990, 33 U.S.C. 2701 

Deepwater Ports Act, 33 U.S.C. 1501, 1502 

International Regulations for Preventing Collisions at Sea, 33 U.S.C. 1601 

National Ocean Pollution Planning Act, 33 U.S.C. 1702 

Prevention of Pollution from Ships, 33 U.S.C. 1902 

Shore Protection from Municipal or Commercial Waste, 33 U.S.C. 2601 

Ocean Thermal Energy Conversion Act, 42 U.S.C. 9101 

Superfund, 42 U.S.C. 9601 

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

Outer Continental Shelf Lands Act, 43 U.S.C. 1331 

Offshore Oil Pollution Fund, 43 U.S.C. 1811 

Salvaging Operations by Foreign Vessels, 46 U.S. app. 316(d) 

Death on the High Seas by Wrongful Act, 46 U.S.C. 767 

Jones Act [requiring use of U.S. vessels], 46 U.S.C. 883 

Vessel and Seaman Act, 46 U.S.C. 2101 

Operation of Vessels Generally, 46 U.S.C. 2301 

Carriage of Liquid Bulk Dangerous Cargoes, 46 U.S.C. 3701 

Uninspected Vessels Generally, 46 U.S.C. 4101 

Recreational Vessels, 46 U.S.C. 4301 

Uninspected Commercial Fishing Industry Vessels, 46 U.S.C. 4501 

Load Lines, 46 U.S.C. 5101 

Reporting Marine Casualties, 46 U.S.C. 6101 

State Pilotage, 46 U.S.C. 8501 

Commercial Fishing Industry Vessel Anti-Reflagging Act, 46 U.S.C. 12108 
406 Shore and Sea Boundaries 

Recovery for Injury to or Death of a Seaman, 46 U.S.C. app. 688 

Time Limits for Salvage Suits, 46 U.S.C. app. 730 

Drug Abuse Prevention on Board Vessels. 46 U.S.C. app. 1903 

Jurisdiction of District Court, 47 U.S.C. 33 

Vessels in Distress, 47 U.S.C. 321 

Puerto Rico, 48 U.S.C. 749 

Trust Territories of the Pacific Islands, 48 U.S.C. 1681 

Territorial Submerged Lands, 48 U.S.C. 1705 

Federal Aviation Administration, 49 U.S.C. 1301 

National Transportation Safety Board Act, 49 U.S.C. app. 1903(a)(1)(E) 

Captain of the Port, 50 U.S.C. 191 
Appendix E 

Baseline Provisions of the 

1958 Convention on the Territorial Sea 

and the Contiguous Zone 

and the 

1982 Convention on the Law of the Sea 

Compared 

1958 

Article 3 

[normal baseline] 

Except where otherwise provided 

in these articles, the normal 

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. 

[no comparable provision] 

1982 

Article 5 

Normal baseline 

Except where otherwise provided 

in this Convention, the normal 

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. 

Article 6 

Reefs 

In the case of islands situated on 

atolls or of islands having fringing 

reefs, the baseline for measuring 

the breadth of the territorial sea is 

the seaward low-water line of the 

reef, as shown by the appropriate 

symbol on charts officially 

recognized by the coastal State. 

407 
408 Shore and Sea Boundaries 

Article 4 

[straight baselines] 

1. In localities where the coastline 

is deeply indented and cut into, or 

if there is a fringe of islands along 

the coast in its immediate vicinity, 

the method of straight baselines 

joining appropriate points may be 

employed in drawing the baseline 

from which the breadth of the 

territorial sea is measured. 

[no comparable provision] 

2. The drawing of such baselines 

must not depart to any appreciable 

extent from the general direction of 

the coast, and the sea areas lying 

within the lines must be sufficiently 

closely linked to the land domain 

to be subject to the regime of 

internal waters. 

3. Baselines shall not be drawn to 

and from low-tide elevations, 

unless lighthouses or similar 

installations which are permanently 

above sea level have been built on 

them. 

Article 7 

Straight baselines 

1. [identical] 

2. Where because of the presence 

of a delta and other natural 

conditions the coastline is highly 

unstable, the appropriate points 

may be selected along the furthest 

seaward extent of the low-water 

line and, notwithstanding 

subsequent regression of the lowwater line, the straight baselines 

shall remain effective until changed 

by the coastal State in accordance 

with this Convention. 

3. [identical to paragraph 2] 

4. Straight baselines shall not be 

drawn to and from low-tide 

elevations, unless lighthouses or 

similar installations which are 

permanently above sea level have 

been built on them or except in 

instances where the drawing of 

baselines to and from such 

elevations has received general 

international recognition. 
Appendix E 409 

4. Where the method of straight 

baselines is applicable under the 

provisions of paragraph 1, account 

may be taken, in determining 

particular baselines, of economic 

interests peculiar to the region 

concerned, the reality and 

importance of which are clearly 

evidenced by long usage. 

5. The system of straight baselines 

may not be applied by a State in 

such a manner as to cut off from 

the high seas the territorial sea of 

another State. 

6. The coastal State must clearly 

indicate straight baselines on 

charts, to which due publicity must 

be given. 

Article 6 

[outer limit of the territorial sea] 

The outer limit of the territorial sea 

is the line every point on which is 

at a distance from the nearest point 

of the baseline equal to the breadth 

of the territorial sea. 

5. [identical to paragraph 4] 

[no comparable provision, but 

see article l6] 

6. The system of straight baselines 

may not be applied by a State in 

such a manner as to cut off the 

territorial sea of another State from 

the high seas or an exclusive 

economic zone. 

Article 4 

Outer limit of the territorial sea 

[identical to Article 6] 
410 Shore and Sea Boundaries 

Article 7 

[juridical bays] 

1. This article relates only to bays 

the coasts of which belong to a 

single State. 

2. For the purposes of these 

articles, a bay is a well-marked 

indentation whose penetration is 

in such proportion to the width of 

its mouth as to contain landlocked 

waters and constitute more than a 

mere curvature of the coast. An 

indentation shall not, however, be 

regarded as a bay unless its area is 

as large as, or larger than, that of a 

semi-circle whose diameter is a line 

drawn across the mouth of that 

indentation. 

3. For the purpose of 

measurement, the area of an 

indentation is that lying between 

the low-water mark around the 

shore of the indentation and a line 

joining the low-water marks of its 

natural entrance points. Where, 

because of the presence of islands, 

an indentation has more than one 

mouth, the semi-circle shall be 

drawn on a line as long as the sum 

total of the lengths of the lines 

across the different mouths. 

Islands within an indentation shall 

be included as if they were part of 

the water area of the indentation. 

4. If the distance between the lowwater marks of the natural entrance 

points of a bay does not exceed 

twenty-four miles, a closing line 

may be drawn between these two 

low-water marks, and the waters 

enclosed thereby shall be 

considered as internal waters. 

Article 10 

Bays 

[“these articles” changed to “this

Convention”; remainder of article 

is identical] 
Appendix E 411 

5. Where the distance between the 

low-water marks of the natural 

entrance points of a bay exceeds 

twenty-four miles, a straight 

baseline of twenty-four miles shall 

be drawn within the bay in such a 

manner as to enclose the maximum 

area of water that is possible with a 

line of that length. 

6. The foregoing provisions shall 

not apply to so-called “historic” 

bays, or to any case where the 

straight baseline system provided 

for in article 4 is applied. 

Article 8 

[harborworks] 

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 

a part of the coast. 

Article 9 

[roadsteads] 

Roadsteads which are normally 

used for the loading, unloading 

and anchoring of ships, and which 

would otherwise be situated wholly 

or partly outside the outer limit of 

the territorial sea, are included in 

the territorial sea. The coastal State 

must clearly demarcate such 

roadsteads and indicate them on 

charts together with their 

boundaries, to which due publicity 

must be given. 

Article 11 

Ports 

[first sentence identical, new 

second sentence added] 

Off-shore installations and 

artificial islands shall not be 

considered as permanent harbour 

works. 

Article 12 

Roadsteads 

[first sentence identical, second 

sentence deleted from 1982 

Convention, but see article 16] 
412 Shore and Sea Boundaries 

Article 10 

[islands] 

1. An island is a naturally formed 

area of land, surrounded by water, 

which is above water at high tide. 

2. The territorial sea of an island is 

measured in accordance with the 

provisions of these articles. 

Article 11 

[low-tide elevations] 

1. A low-tide elevation is a 

naturally formed area of land 

which is surrounded by and above 

water at low-tide but submerged at 

high tide. Where a low-tide 

elevation is situated wholly or 

partly at a distance not exceeding 

the breadth of the territorial sea 

from the mainland or an island, 

the low-water line on that 

elevation may be used as the 

baseline for measuring the breadth 

of the territorial sea. 

2. Where a low-tide elevation is 

wholly situated at a distance 

exceeding the breadth of the 

territorial sea from the mainland 

or an island, it has no territorial 

sea of its own. 

Article 121 

Regime of islands 

1. An island is a naturally formed 

area of land, surrounded by water, 

which is above water at high tide. 

2. Except as provided for in 

paragraph 3, the territorial sea, the 

contiguous zone, the exclusive 

economic zone and the continental 

shelf of an island are determined 

in accordance with the provisions 

of this Convention applicable to 

other land territory. 

3. Rocks which cannot sustain 

human habitation or economic life 

of their own shall have no 

exclusive economic zone or 

continental shelf. 

Article 13 

Low-tide elevations 

[identical] 
Appendix E 413 

Article 12 

[lateral boundaries] 

1. Where the coasts of two States 

are opposite or adjacent to each 

other, neither of the two States is 

entitled, failing agreement between 

them to the contrary, to extend its 

territorial sea beyond the median 

line every point of which is 

equidistant from the nearest points 

on the baselines from which the 

breadth of the territorial sea of 

each of the two States is measured. 

The provisions of this paragraph 

shall not apply, however, where it 

is necessary by reason of historic 

title or other special circumstances 

to delimit the territorial seas of the 

two States in a way which is at 

variance with this provision. 

2. The line of delimitation between 

the territorial sea of two States 

lying opposite to each other or 

adjacent to each other shall be 

marked on large-scale charts 

officially recognized by the coastal 

States. 

Article 13 

[rivers] 

If a river flows directly into the sea, 

the baseline shall be a straight line 

across the mouth of the river 

between points on the low-tide 

line of its banks. 

Article 15 

Delimitation of the territorial sea 

between States with opposite or 

adjacent coasts 

[first sentence is identical] 

[second sentence is amended 

to read:] 

The above provision does not 

apply, however, where it is 

necessary by reason of historic title 

or other special circumstances to 

delimit the territorial seas of the 

two States in a way which is at 

variance herewith. 

[no comparable provision, but 

see article 16] 

Article 9 

Mouths of rivers 

[identical, but see article 16] 
414 Shore and Sea Boundaries 

[no comparable provision] 

[no comparable provision] 

Article 14 

Combinations of methods for 

determining baselines 

The coastal State may determine 

baselines in turn by any of the 

methods provided for in the 

foregoing articles to suit different 

conditions. 

Article 16 

Charts and lists of geographical 

co-ordinates 

1. The baselines for measuring the 

breadth of the territorial sea 

determined in accordance with 

articles 7 [straight baselines], 9 

[mouths of rivers] and 10 [bays], or 

the limits derived therefrom, and 

the lines of delimitation drawn in 

accordance with articles 12 

[roadsteads] and 15 [opposite and 

adjacent coasts] shall be shown on 

charts of a scale or scales adequate 

for ascertaining their position. 

Alternatively, a list of geographical 

co-ordinates of points, specifying 

the geodetic datum, may be 

substituted. 

2. The coastal State shall give due 

publicity to such charts or lists of 

geographical co-ordinates and shall 

deposit a copy of each such chart 

or list with the Secretary-General of 

the United Nations. 
Appendix F 

Coastline Committee Charter 

DEPARTMENT OF STATE 

Washington, D.C. 20520 

August 7, 1970 

MEMORANDUM 

TO: Members, LOS Task Force Executive 

Operations Group 

FROM: Carl F. Salans 

Acting Legal Adviser 

SUBJECT: Establishment of Ad Hoc Committee on 

Delimitation of the United States Coastline 

I am sending this memorandum in the absence of Jack Stevenson, 

Chairman of the LOS Task Force. 

Pursuant to an exchange of correspondence between the Secretary of 

Commerce (at Tab A), there has been established within the Law of the Sea 

Task Force an ad hoc committee to review questions relating to the 

delimitation of the coastline of the United States. This committee will 

review the lines recently drawn by the Geographer of the Department of 

State on existing charts of the Environmental Sciences Services 

Administration and will determine the location of the limits of the United 

States territorial sea and the contiguous zone as accurately as possible in 

light of the data on those charts. It is anticipated that the committee will 

arrive at a provisional United States position. Although this position will 

be subject to modification as necessary when new data is available, it can be 

used to respond to current problems both in the international and the 

domestic sphere, with necessary caveats to reflect its provisional nature. A 

fuller description of the committee’s functions is included (at Tab B). 

415 
416 Shore and Sea Boundaries 

The committee has already begun its activities with representation from 

the Departments of State, Justice, Interior, Commerce and Transportation. 

The following persons have been designated to serve on the committee: 

Department of State 

Horace F. Shamwell, Jr., Chairman 

Robert D. Hodgson 

Department of Justice 

George S. Swarth 

Jonathan I. Charney 

Department of Interior 

Francis A. Cotter 

Department of Commerce 

Rear Adm. Harley D. Nygren 

Hugh Dolan 

Department of Transportation 

Rear Adm. William T. Morrison, U.S.C.G. 

Captain G. H. Patrick Bursley, U.S.C.G. 

Lt. Michael Reed, U.S.C.G. 

It is requested that you review the above list and the attached 

description of the new committee. If you approve them or have any 

additions or corrections to make, please telephone Mr. Horace F. Shamwell, 

Jr., at 632-2658, by close of business August 14, 1970. 

After all clearances are received, I will request the Under Secretary of the 

Department of State to communicate with the respective Under Secretaries 

or appropriate level officials of the agencies represented on the committee 

for formal confirmation of the committee’s membership. 

Attachments: 

Tab A - Correspondence between the Secretary of State and the Secretary 

of Commerce 

Tab B - Description of Committee’s Functions 

L/PMO: HFShamwell, Jr. :jah 
Appendix F 417 

LOS TASK FORCE COMMITTEE 

ON THE DELIMITATION OF THE COASTLINE 

OF THE UNITED STATES 

This committee is established for the purpose of providing an 

interagency forum to discuss and make recommendations on all questions 

and issues relating to the delimitation of the coastline of the United States. 

Represented on the committee will be those agencies of the Government 

most directly concerned with the implementation of the United States 

policy with respect to the coastline. These agencies are the Departments of 

State, Commerce, Interior, Transportation and Justice. The initial reason for 

the establishment of the committee at this time is that there have been a 

number of inquiries from both foreign Governments and States of the 

United States for a definitive United States position on the exact location 

and nature of he United States coastline. There is a severe operational need 

by the Coast Guard for a reliable description of the coastline. As of now, 

there is no official United States position on the exact physical location of 

the entire coastline. 

The United States subscribes to the position that the coastline should be 

drawn in strict accordance with the Geneva Convention on the Territorial 

Sea and the Contiguous Zone. With respect to the United States, the 

“normal baseline” standard should be followed, with the exception of areas 

that qualify as legal bays defined under Article 7 of the Convention, and in 

the case of historic bays also covered by Article 7, in which cases closing 

lines are drawn. The committee will not take up the political issue as to 

whether the United States should or should not employ the method of 

straight baselines. 

In the last year an effort has been made to prepare charts which 

represent the first official description of the coastline of the United States. 

Much progress was made toward completion of these charts as the official 

United States position; however, before the completion of a full set of 

charts, a question arose as to the propriety of using certain symbols found 

on the U.S. Coast and Geodetic Survey nautical charts as points on the 

coastline from which baselines could be drawn. Because these questions 

have arisen, archival research and new surveys must be undertaken to 

determine whether certain of these features represented by the symbols in 

question qualify for true measurement of the territorial sea and contiguous 

zone. The completion of the necessary work may take several years. In the 

meantime the United States is in a position where some tentative positions 

must be taken with respect to its coastline. 

The committee will undertake to review the most recent existing charts 

with respect to the usability of various symbols contained thereon. The 
418 Shore and Sea Boundaries 

committee will not utilize those symbols about which there is a question as 

to whether they meet the relevant legal requirements. The result of this 

approach may be to designate territorial limits which in view of subsequent 

information may have to be altered to some extent. No symbols, however, 

will be utilized which will result in the representation of territorial limits 

which extend farther than those claimed by the United States and 

recognized under international law. A significant reason for this is that it is 

not felt the Coast Guard should be asked to enforce limits, established by 

using questionable chart symbols, which may later be discovered to exceed 

those which the Untied States has the right to exercise. 

The committee will prepare and approve lines showing the closing lines 

of bays, the limits of the 3-mile territorial sea and 12-mile contiguous zone 

and then submit the approved charts to the Coast and Geodetic Survey for 

inking. Upon approval by the LOS Task Force, the charts will be 

reproduced. Such printed representations, however, will only be 

provisional guidelines to be used when necessary, and will contain 

sufficient caveats to indicate that they are not a final and definitive United 

States position. It is hoped that rapid progress can be made to do the 

necessary archival and survey work to facilitate the revision of these charts 

to show a precise determination of the location of [the] United States 

territorial sea and contiguous zone. It is not intended that the charts 

resulting from the committee’s work will be circulated throughout the 

Government, even as a provisional United States position, but rather will be 

available for use when current pressing problems arise. Such use will be 

conditioned by the relevant caveats. 

While the committee is carrying out the above functions, a record will 

be maintained of the discussions engaged in and the factors considered in 

coming to the conclusions which are reached. It is hoped that this record 

will be available for use by Government agencies along with the charts, as 

necessary. This background material should prove helpful in understanding 

the significance to be attached to the representations made on the charts. 
Appendix G 

Presidential Proclamation No. 5928 

December 27, 1988, 54 F.R. 777 

Territorial Sea of the 

United States of America 

International law recognizes that coastal nations may exercise sovereignty 

and jurisdiction over their territorial seas. 

The territorial sea of the United States is a maritime zone extending 

beyond the land territory and internal waters of the United States over which 

the United States exercises sovereignty and jurisdiction, a sovereignty and 

jurisdiction that extends to the airspace over the territorial sea, as well as to its 

bed and subsoil. 

Extension of the territorial sea by the United States to the limits permitted 

by international law will advance the national security and other significant 

interests of the United States. 

NOW, THEREFORE, I, RONALD REAGAN, by the authority vested in me as 

President by the Constitution of the United States of America, and in 

accordance with international law, do hereby proclaim the extension of the 

territorial sea of the United States of America, the Commonwealth of Puerto 

Rico, Guam, American Samoa, the United States Virgin Islands, the 

Commonwealth of the Northern Mariana Islands, and any other territory or 

possession over which the United States exercises sovereignty. 

The territorial sea of the United States henceforth extends to 12 nautical 

miles from the baselines of the United States determined in accordance with 

international law. 

In accordance with international law, as reflected in the applicable 

provisions of the 1982 United Nations Convention on the Law of the Sea, 

within the territorial sea of the United States, the ships of all countries enjoy the 

right of innocent passage and the ships and aircraft of all countries enjoy the 

right of transit passage through international straits. 

Nothing in this Proclamation: 

(a) extends or otherwise alters existing Federal or State law or any 

jurisdiction, rights, legal interests, or obligations derived therefrom; or 

(b) impairs the determination, in accordance with international law, or 

any maritime boundary of the United States with a foreign jurisdiction. 

IN WITNESS WHEREOF, I have hereunto set my hand this 27th day of 

December, in the year of our Lord nineteen hundred and eighty-eight, and of 

the Independence of the United States of America the two hundred and 

thirteenth. 

/s/ Ronald Reagan 

419 
The Contiguous Zone of the United States 

International law recognizes that coastal nations may establish zones 

contiguous to their territorial seas, known as contiguous zones. 

The contiguous zone of the United States is a zone contiguous to the 

territorial sea of the United States, in which the United States may exercise the 

control necessary to prevent infringement of its customs, fiscal, immigration, or 

sanitary laws and regulations within its territory or territorial sea, and to punish 

infringement of the above laws and regulations committed within its territory 

or territorial sea. 

Extension of the contiguous zone of the United States to the limits 

permitted by international law will advance the law enforcement and public 

health interests of the United States. Moreover, this extension is an important 

step in preventing the removal of cultural heritage found within 24 nautical 

miles of the baseline. 

NOW, THEREFORE, I, WILLIAM J. CLINTON, by the authority vested in 

me as President by the Constitution of the United States, and in accordance 

with international law, do hereby proclaim the extension of the contiguous 

zone of the United States of America, including the Commonwealth of Puerto 

Rico, Guam, American Samoa, the United States Virgin Islands, the 

Commonwealth of the Northern Mariana Islands, and any other territory or 

possession over which the United States exercises sovereignty, as follows: 

The contiguous zone of the United States extends to 24 nautical miles from 

the baselines of the United States determined in accordance with international 

law, but in no case within the territorial sea of another nation. 

In accordance with international law, reflected in the applicable provisions 

of the 1982 Convention on the Law of the Sea, within the contiguous zone of 

the United States the ships and aircraft of all countries enjoy the high seas 

freedoms of navigation and overflight and the laying of submarine cables and 

pipelines, and other internationally lawful uses of the sea related to those 

freedoms, such as those associated with the operation of ships, aircraft, and 

submarine cables and pipelines, and compatible with the other provisions of 

international law reflected in the 1982 Convention on the Law of the Sea. 

Nothing in this proclamation: 

(a) amends existing Federal or State law; 

(b) amends or otherwise alters the rights and duties of the United States 

or other nations in the Exclusive Economic Zone of the United States 

established by Proclamation 5030 of March 10, 1983; or 

421 

Index 

A 

Acquiescence, 9, 48, 71, 88--93, 96, 101, 

105, 117, 126, 165, 324, 327, 331, 

337--342 

Actually occupied, 15, 32, 34 

Alaska Boundary Arbitration, 90, 331, 

340 

Alexander, Dr. Lewis, 80, 81, 111, 123, 

144, 212, 232, 233, 240, 258, 259, 

261, 262, 275, 276, 298, 299 

Ambulatory line, 27, 28, 29, 73, 77, 

92, 140, 163, 185, 211, 288, 360 

Ancient title, 96, 99--102, 324 

Antiquities Act, 33, 34 

ARCO pier, 140, 141, 142, 189 

Arcs of circles, 352 

Arctic National Wildlife Refuge, 36, 40, 

41, 42, 151, 157, 158, 159,160 

Armstrong, Walter P., Jr., 67, 71, 72, 73, 

78, 79, 87, 89, 90, 94, 184, 228, 

231, 235, 262, 278, 279, 280, 281, 

283, 286, 292, 306, 334, 340, 345, 

348, 351, 353, 370, 371, 375, 377 

Arraj, Judge Alfred A., 50, 185, 191, 

269, 373, 374, 375 

Artificial accretion, 128, 186 

Artificial headland, 267, 270 

Artificial island, 53, 190, 195, 197, 

201, 203, 204, 252, 253, 296 

Ascension Bay, Louisiana, 62, 75, 76, 

85, 143, 228, 247, 248, 306, 307, 

308, 361 

Assimilated to the mainland, 72, 73, 

74, 80, 81, 86, 106, 107--111, 118, 

251, 252, 271--297, 301, 302, 304, 

305, 340, 352 

Asterisk. See also Rocks awash. 220 

Atchafalaya Bay, Louisiana, 77, 219, 

235, 260, 291 

Atigaru Point, Alaska, 142 

B 

Barataria Bay, Louisiana, 62, 85, 247, 

248, 251, 253, 307 

Barrier island, 63, 65, 78, 81, 82, 85, 

135, 145--150, 157, 158, 237, 238, 

247, 282, 288, 304, 328, 329, 331, 

340, 346, 351, 352 

Base point, 53, 128, 164, 181, 182, 

186, 187, 190, 191, 193, 194, 195, 

196, 198, 201, 203, 212, 213, 214 

Baseline Committee. See also Coastline 

Committee. 83, 92, 93, 107, 109, 111, 

117, 122, 167, 184, 190, 234, 268, 

302, 305, 307, 309, 350, 352, 361 

Beazley, Commander Peter, 111, 180, 

183, 184, 193, 196, 202, 216, 228, 

231, 233, 234, 245, 249, 252, 255, 

259, 261, 262, 265, 268, 309, 312, 

320 

Benet, Minister, 8 

Bird sanctuaries, 69, 70, 348, 350 

Bisector of the angle test, 258, 261, 

262, 266, 321 

Block Island Sound, 102--111, 226, 227, 

233, 234, 235, 268, 299, 303, 304, 

305, 336, 342 

Boggs, Samuel W., 64, 83, 84, 209, 271, 

275, 276 

Boggs Formula, 241, 242 

Bork, Robert, 353 

Boundary bay, 224, 313 

Breakwater, 50, 51, 55, 56, 57, 182, 

190, 196, 264, 268, 270, 319, 320, 

321 

423 
424 Shore and Sea Boundaries 

Bridge, 82, 107, 197, 198, 199, 203, 

276, 281 

Bucket Bend Bay, Louisiana, 250, 251, 

279, 286, 287 

Burke, William T., 55, 178, 183, 190, 

196, 200, 201, 202, 212, 215, 237, 

323 

C 

Caillou Bay, Louisiana, 65, 87, 237--

240, 282, 283, 288, 290, 292 

Caminada Bay, Louisiana, 62, 85, 247, 

248, 251, 253, 307 

Cannon shot rule, 123 

Causeway, 53, 82, 198, 281, 291 

Census boundries, 69, 242, 346 

Chandeleur Sound, Louisiana, 150, 

238, 240, 269, 348 

Channel Islands National Monument, 

33, 36, 44, 51, 237, 367 

Chapman Line, 68, 69, 79, 238, 240, 

242, 268, 269, 346, 347, 348 

Charney, Jonathan, 352 

Charted line, 49, 72, 178, 180, 181, 

182, 214 

Claim of right, 19, 32, 34 

Clark, Justice Tom C., 18, 168, 171 

Clear beyond doubt, 67, 71, 72, 99, 

106, 117, 325 

Coast Guard Line. See also Inland 

water line. 58, 59, 60, 322, 345 

Coast protective works, 54, 196 

Coastline Committee. See also Baseline 

Committee. 56, 136, 191, 193, 

196, 203, 204, 214, 218, 220, 222, 

235, 254, 256, 259, 260, 261, 263, 

267, 270, 294, 326, 350, 361 

Coke, Sir Edward, 98 

Coke test, 98, 99, 102 

Continuity. See also Usage. 71, 89, 92, 

101, 324, 327, 338, 339, 340, 342 

Convention. Passim. See also Convention 

on the Territorial Sea and the 

Contiguous Zone. 

Convention on Fishing and 

Conservation of the Living 

Resources of the High Seas, 125 

Convention on the Continental Shelf, 

6, 10, 31 

Convention on the Territorial Sea and 

the Contiguous Zone. (Also 

referred to as Convention.) 42, 46, 

53, 58, 66, 76, 79, 88, 90, 92, 98, 

103, 121, 129, 141, 163, 167, 171, 

175, 176, 200, 212, 213, 222, 256, 

271, 275, 286, 293, 310, 311, 317, 

335, 343, 360, and Passim. 

Cook Inlet, Alaska, 6, 104, 120--127, 

306, 308, 309, 310, 322, 333, 334, 

336, 340, 342, 350, 352, 363 

Corps of Engineers, 49, 128--133, 140, 

141, 142, 179, 187, 188, 189, 

191, 368 

Public interest, 131, 132, 

133, 141, 188, 189 

Waiver, 129, 130, 133, 141, 

142, 187, 188, 189, 368 

Counterclaim, 36, 112 

County waters, 96, 97, 102 

Cow Horn Island, Louisiana, 73, 262, 

288, 289 

Cuttyhunk Island, Massachusetts, 98 

D 

Dauphin Island, Alabama, 74, 80, 81, 

82, 83, 86, 87, 88, 281, 283, 284, 

291, 293 

Davis, William H., 43, 45, 128, 129, 

209, 341 

Delaware Bay, 90, 100, 120, 225, 341, 

342 
Index 425 

Depth of penetration, 76, 80, 143, 231, 

232, 233, 266, 306 

DeVorsey, Dr. Louis, 135 

Dinkum Sands, 133--140, 182, 204--

211, 361, 371, 372, 375 

Disclaimer, 48, 67, 93, 106, 125, 133, 

181, 182, 223, 325, 326, 335, 344, 

368 

Distributaries, 72, 243, 312 

Dolan, Judge Hugh, 107 

Dominium, 12 

Double-headed bay, 144, 266, 267, 

305 

Dredged channel, 60, 191, 192, 194, 

317 

Dry Tortugas Islands, Florida, 112--118, 

228, 352, 353 

E 

East Bay, Louisiana, 62, 71, 73, 92, 

143, 199, 228, 229, 230, 231, 241, 

243, 244, 246, 257, 262, 269, 287, 

288, 289, 312, 340 

East River, New York, 107, 108, 109, 

110, 294, 295 

Elizabeth Islands, Massachusetts, 95, 

292, 302 

English mile, 7, 11 

Entrance point, 51, 52, 61, 63, 72--77, 

80, 81, 84, 85, 111, 121, 122, 142, 

229, 245, 256--272, 297--306,310, 

311, 314, 317, 321, 322, 371 

Equal footing doctrine, 5, 11, 12, 33, 

36, 37, 148, 151, 152, 154, 156 

Equidistant line. See also Median line. 

91, 162--171 

Estuaries, 245, 247, 248, 258, 311, 312, 

313, 318 

Exclusive fisheries zone, 183 

F 

Fallback line, 62, 77, 82, 92, 127, 228, 

257, 307, 308, 309, 310, 314, 361 

Fictitious bay, 48, 237, 238, 344 

Fixed boundaries, 25, 26, 28, 29, 30, 

32, 73, 77, 92, 120, 133, 170, 185, 

378 

Florida Bay, Florida, 116, 117, 197, 

198, 228, 238, 279, 280, 281, 292, 

375, 376 

Forty-five-degree test, 75, 111, 117, 258--

261, 264, 265, 317, 321 

Fringing islands, 65, 149, 238, 283 

Boggs Formula, 241, 242 

Fictitious bay, 48, 237, 238, 344 

High-seas enclaves, 78, 218, 237 

Impermissible contraction, 145, 148, 

240, 326, 331 

Ten-mile rule, 237 

G 

Gadsden Treaty, 10 Stat. 1031, 24 

Gay Head, Massachusetts, 98, 99 

General direction of the coast, 75, 111, 

167, 168, 231, 235, 257, 259, 261, 

263, 264, 265, 276, 314, 315, 322, 

343 

General trend of the coast, 164, 168, 

257 

Geographic mile. See also Nautical mile. 

7, 18, 27, 90, 93, 292, 331 

Gharrett-Scudder Line, 124 

Gremillion, Jack P.F., 69, 348 

Griswold, Erwin N., 69, 292, 348 

Groin, 43, 50, 54--57, 182, 186, 193, 

194, 195 

Groner, Judge D. Lawrence, 43 

Grotius, Hugo, 97 
426 Shore and Sea Boundaries 

Guadalupe-Hidalgo. See Treaty of 

Guadalupe-Hidalgo. 

H 

Hale, Sir Matthew, 97, 98 

Hale test, 99 

Harbor, 48, 50, 51, 54, 55, 57, 58, 60, 

102, 108, 128, 129, 134, 170, 171, 

188, 190, 193--196, 222, 248, 263, 

264, 269, 319, 321, 322, 323, 345 

Harborwork, 48, 50, 52, 53, 54, 57, 60, 

132, 141, 163, 190--197, 203, 214, 

268, 269, 270, 317--324, 360 

Harrison Bay, Alaska, 142, 143, 144, 

152, 231, 232, 235, 259, 266, 267 

Headland, 44, 50, 51, 52, 62, 63, 64, 

72, 73, 75, 76, 77, 80, 81, 82, 84, 

85, 92, 97, 98, 109, 110, 111, 144, 

175, 191, 192, 197, 198, 203, 214, 

226--235, 242, 243, 248, 250, 251, 

254--306, 308, 317, 320 

Herron, William, 195 

High-seas enclaves, 78, 218, 237 

Hill, John, 31 

Historic bay, 66, 67, 70, 79, 88, 89, 90, 

92, 102, 106, 117, 120--127, 

149, 281, 285, 292, 308, 324--342 

Acquiescence, 9, 48, 71, 88--93, 96, 101, 

105, 117, 126, 165, 324, 327, 331, 

337--342 

Ancient title, 96, 99--102, 324 

County waters, 96, 97, 102 

Terra nullius, 96 

Clear beyond doubt, 67, 71, 72, 99, 

106, 117, 325 

Continuity, 71, 89, 92, 101, 324, 327, 

338, 339, 340, 342 

Usage, 89, 93, 100, 101, 102, 117, 127, 

171, 257, 324, 338--343 

Historic boundary, 28, 78, 120 

Historic coastline, 30, 120, 162, 163, 

166 

Historic inland waters, 59, 60, 66, 70, 

71, 88, 92, 94, 100, 105, 117, 147 

Historic territorial waters, 59 

Historic title, 48, 59, 67, 71, 92, 93, 96, 

100, 101, 106, 117, 124, 125, 126, 

163, 164, 171, 326, 327, 329, 331, 

333, 336--341 

Historic waters, 48, 59, 60, 66, 67, 70, 

71, 72, 79, 88, 89, 90, 92, 96, 100, 

104, 105, 109, 117, 123, 124, 147, 

223, 288, 291, 324, 327, 329, 331, 

334, 336--342, 345, 350, 353, 377 

Hodgson, Dr. Robert, 56, 75, 80, 81, 

106, 107, 111, 144, 164, 165, 181, 

200, 201, 203, 204, 212, 228, 232, 

233, 240, 242, 247, 255, 258, 259, 

261, 262, 266, 268, 269, 272, 275--

278, 280, 288, 298, 299, 302, 311, 

317, 318, 360 

Hoffman, Judge Walter E., 94, 97, 103, 

167, 209, 263, 294, 304, 329, 340, 

353, 370, 374, 375 

I 

Ice collapse, 205, 207, 210 

Imperium, 12 

Impermissible contraction, 145, 148, 

240, 326, 331 

Indentation into the mainland, 63, 72, 

81, 86, 106, 121, 197, 223, 236, 

240, 253, 254, 271, 273, 297 

Inland water line. See also Coast Guard 

Line. 58, 59, 60, 68, 74, 320, 321, 

322, 330, 335, 345, 350 

Inter fauces terrae, 76, 97, 100, 229 

Islands, 26, 33, 38, 44, 47, 48, 62--67, 

72, 73, 74, 79--91, 93, 98, 106, 110, 

118, 134, 135, 139, 140, 144, 145, 

147, 149, 152, 153, 158, 168, 169, 

171, 175, 181, 190, 197--205, 209, 

212--216, 220, 221, 235--240, 247, 
Index 427 

249--256, 268, 271 --307, 329, 332, 

340, 343, 344, 346, 348, 351, 353, 

371 

Artificial, 53, 190, 195, 197, 

201, 203, 204, 252, 253, 296 

Naturally formed, 53, 60, 106, 134, 

139, 200--204, 208, 211, 215, 216, 

221, 250, 252, 268, 270, 271, 286, 

296, 372 

Islands as headlands. See also 

Assimilated to the mainland. 63, 

271, 286 

Island proximity to inland waters, 282, 

286 

Isle au Pitre, Louisiana, 80, 82, 291 

Isles Dernieres, Louisiana, 65, 73, 87, 

282, 283, 288--291 

Isles of Shoals, New Hampshire/Maine, 

168, 169, 171 

J 

Jefferson, Thomas, 8, 123 

Jessup, Judge Philip C., 50, 101, 193, 

195, 335, 342, 374 

Jetty, 27, 43, 50--57, 62, 72, 75, 129, 

130, 131, 140, 162--166, 186--195, 

198, 203, 228, 229, 268, 269, 270, 

315, 316, 320, 321, 322, 368 

Jordan, R.E.L., 364 

Juridical bay, 48, 50, 62, 65, 67, 72, 76, 

79--92, 96, 98, 104, 106, 108, 109, 

110, 111, 142, 143, 144, 192, 197, 

218, 219, 223--306, 308, 310, 311, 

312, 317, 329, 331, 333, 342 

Double-headed bay, 144, 266, 

267, 305 

Entrance point, 51, 52, 61, 63, 72--77, 

80, 81, 84, 85, 111, 121, 122, 

142, 229, 245, 256--272, 297--306, 

310, 311, 314, 317, 321, 322, 371 

Bisector of the angle test, 

258, 261, 262, 266, 321 

Forty-five degree test, 75, 111, 117, 

258--261, 264, 265, 317, 321 

Shortest distance test, 51, 258, 

262, 263, 264, 265, 266 

Estuaries, 245, 247, 248, 258, 311, 312, 

313, 318 

Headland, 44, 50, 51, 52, 62, 63, 64, 

72, 73, 75, 76, 77, 80, 81, 82, 

84, 85, 92, 97, 98, 109, 110, 111, 

144, 175, 191, 192, 197, 198, 

203, 214, 226--235, 242, 243, 

248, 250, 251, 254--306, 308, 

317, 320 

Artificial headland, 267, 270 

Islands as headlands, 63, 271, 286 

Assimilated to the mainland, 

72, 73, 74, 80, 81, 86, 106, 

107--111, 118, 251, 252, 271--

297, 301, 302, 304, 305, 

340, 352 

Proximity to inland waters, 

282, 286 

Mudlumps, 70, 72, 73, 235, 

250, 275, 279, 280, 282, 

286, 287, 304 

Indentation into the mainland, 63, 72, 

81, 86, 106, 121, 197, 223, 236, 

240, 253, 254, 271, 273, 297 

Landlocked, 50, 52, 62, 63, 75, 76, 77, 

80, 81, 84, 98, 109, 111, 142, 

143, 195, 214, 224, 225, 226--

267, 270, 278, 284, 288, 293, 

297, 299, 300, 301, 304, 306, 

308, 322, 376 

Depth of penetration, 76, 80, 143, 

231, 232, 233, 266, 306 

Inter fauces terrae, 76, 97, 100, 

229 

Semicircle test, 48, 61, 62, 63, 74, 

76, 80, 84, 85, 86, 108, 121, 

143, 144, 178, 224, 225, 226, 

229, 230, 232, 233, 234, 240--

256, 257, 265, 266, 269, 287, 

288, 297, 302, 305, 307, 308, 

310, 312, 313 

Reduced area method, 

242 

Subsidiary water bodies, 

232, 241, 242, 243, 308 

Underwater sill, 226, 227 

Well-marked indentation, 62, 76, 

108, 121, 143, 224, 236 
428 Shore and Sea Boundaries 

Multiple mouths, 63, 80, 81, 83, 84, 

110, 111, 240, 253, 254, 255, 

256, 260, 271, 274, 275, 284, 

285, 296, 297--305, 314, 322 

Nomenclature, 228, 288, 335 

Overlarge bay, 62, 75, 77, 85, 92, 228, 

247, 257, 265, 306--310, 322, 

361 

Maximum area of water, 75, 121, 

122, 306, 308, 309, 310 

Twenty-four-mile fallback line, 75, 

77, 82, 92, 121, 228, 265, 306, 

307--309, 310, 314, 322, 361 

Jury demand,112 

K 

Kalgin Island, Alaska, 121, 127, 309, 

310, 322 

King’s Chambers, 97 

Kotzebue Sound, Alaska, 92, 306, 309 

L 

Landlocked, 50, 52, 62, 63, 75, 76, 77, 

80, 81, 84, 98, 109, 111, 142, 143, 

195, 214, 224, 225, 226-- 267, 270, 

278, 284, 288, 293, 297, 299, 300, 

301, 304, 306, 308, 322, 376 

Large-scale charts, 48, 54, 56, 72, 177, 

179, 183, 351 

Lateral boundary, 161-- 170 

Equidistant line, 91, 162--171 

General direction of the coast, 75, 111, 

167, 168, 231, 235, 257, 259, 261, 

263, 264, 265, 276, 314, 315, 322, 

343 

Median line, 164, 165, 167 

Special circumstances, 80, 111, 144, 

163, 165, 171, 200, 232, 255, 

258, 272, 275, 299, 302 

Lauterpacht, Elihu, Q.C., 50, 193, 223 

Leapfrogging, 218, 282 

Leffingwell, Ernest de K., 135 

Lighthouse, 203, 221 

Long Island, New York, 102-- 111, 226, 

227, 233, 235, 250, 275-- 281, 293--

296, 299, 303, 305 

Long Island Sound, 75, 104--110, 120, 

143, 233, 276, 277, 278, 293, 294 

Low-tide elevation, 1, 60, 61, 73, 77, 

118, 135, 214-- 221, 250, 252, 279, 

280, 291, 343, 371 

Low-water line. See also Low-water 

mark and Mean low water. 42, 43, 

44, 46, 48, 49, 50, 54, 55, 56, 58, 

60, 61, 72, 73, 84, 117, 134, 140, 

142, 149, 158, 177-- 222, 237, 244, 

245, 246, 247, 256, 257, 261, 274, 

284, 288, 317, 362 

Low-water mark. See also Low-water 

line and Mean low water. 13, 61, 

63, 74, 75, 121, 177, 179, 180, 

182, 243, 261, 272, 274, 283, 286, 

300, 306, 334 

M 

Magna Carta, 3 

Man-made coastline, 185 

Mann, Dean J. Keith, 36, 39, 40, 90, 

134, 138, 143, 146, 148, 151, 189, 

205, 210, 211, 235, 332, 340, 352, 

365, 374, 375 

Marine league, 12, 18, 23, 27, 28, 69, 

99, 113, 123, 330 

Maris, Judge Albert B., 14, 15, 94, 97, 

98, 112, 279, 280, 290, 334, 338, 

353, 370-- 376 

Marquesas Keys, Florida, 118, 119, 353 

Marsh Island, Louisiana, 77, 217, 218, 

235, 251, 252 

Maximum area of water, 75, 121, 122, 

306, 308, 309, 310 

McCree, Wade, 31 
Index 429 

McDougal, Myres S., 55, 178, 183, 

190, 196, 200, 201, 202, 212, 215, 

237, 323 

Mean low water. See also Low-water 

line and Low-water mark. 49, 183, 

190, 191, 193, 203, 208, 212, 213, 

220, 222, 289, 309 

Median line. See also Equidistant line. 

164, 165, 167 

Mississippi Sound, 74, 78--94, 147, 

148, 149, 231, 237, 273, 281, 283, 

291, 293, 326--332, 338, 340, 341, 

342, 349, 351, 352, 353, 361, 370 

Mixed tides, 48 

Mobile Bay, Alabama, 3, 74, 78, 80, 

82, 83, 86, 87, 88, 283, 284, 291, 

305 

Monterey Bay, California, 44, 48, 76, 

224, 229, 306 

Mudlumps, 70, 72, 73, 235, 250, 275, 

279, 280, 282, 286, 287, 304 

Multiple mouths, 63, 80, 81, 83, 84, 

110, 111, 240, 253, 254, 255, 256, 

260, 271, 274, 275, 284, 285, 296, 

297--305, 314, 322 

N 

Nantucket Sound, Massachusetts, 94--

102, 151, 236, 292, 342, 375 

Narrow seas, 97 

National Ocean Service, 43, 49, 71, 77, 

136, 137, 138, 139, 182, 208, 351, 

360 

National Petroleum Reserve--Alaska, 

36, 37, 39, 42, 151--158 

Natural entrance points, 61, 63, 72, 75, 

76, 80, 84, 85, 111, 121, 122, 142, 

245, 256, 258, 259, 267, 270, 283, 

284, 297--302, 306, 310, 314, 322, 

371 

Naturally formed, 53, 60, 106, 134, 

139, 200--204, 208, 211, 215, 216, 

221, 250, 252, 268, 270, 271, 286, 

296, 372 

Nautical mile. See also Geographic 

mile. 6, 7, 12, 18, 23, 24, 27, 29, 

32, 33, 34, 42, 58, 61, 75, 78, 82, 

94, 95, 98, 99, 113, 114, 116, 122, 

135, 142, 145, 150, 151, 161, 166, 

188, 238, 260, 300, 305, 314, 315, 

330, 351, 353, 367, 368 

Navigation rules, 59, 335, 345 

Nome Pier, 127, 128, 129, 130, 131, 

188, 368 

Nomenclature, 228, 288, 335 

Normal baseline. See also Normal 

coastline. 48, 54, 55, 56 

Normal coastline. See also Normal 

baseline. 177 

Ambulatory, 27, 28, 29, 73, 77, 92, 140, 

163, 185, 211, 288, 360 

Artificial 

Accretion, 128, 186 

Breakwater, 50, 51, 55, 56, 57, 

182, 190, 196, 264, 268, 270, 

319, 320, 321 

Bridge, 82, 107, 197, 198, 199, 

203, 276, 281 

Causeway, 53, 82, 198, 281, 291 

Coast protective work, 54, 196 

Dredged channel, 60, 191, 192, 

194, 317 

Groin, 43, 50, 54--57, 182, 186, 

193, 194, 195 

Harborwork, 48, 50, 52, 53, 54, 

57, 60, 132, 141, 163, 190--

197, 203, 214, 268, 269, 270, 

317--324, 360 

Jetty, 27, 43, 50--57, 62, 72, 75, 

129, 130, 131, 140, 162--166, 

186--195, 198, 203, 228, 229, 

268, 269, 270, 315, 316, 320, 

321, 322, 368 

Man-made, 185 

Pier, 50--57, 140, 141, 142, 181, 

189, 191, 193--198, 203, 319, 

360, 373, 375 
430 Shore and Sea Boundaries 

Rule of the tide- mark, 175 

Spoil bank, 55, 142, 189, 198, 

199, 203, 204, 252, 296 

Asterisk. See also Rocks awash. 220 

Base point, 53, 128, 164, 181, 182, 

186, 187, 190, 191, 193, 194, 

195, 196, 198, 201, 203, 212, 

213, 214 

Reef, 38, 112, 152, 153, 157, 158, 

203, 212, 213, 214, 215, 280, 

296 

Nygren, Admiral Harley, 135, 136 

O 

Ordinary low tide, 43 

Outer Continental Shelf Lands Act, 19 

Overall unit area, 44, 45 

Overlarge bay, 62, 75, 77, 85, 92, 228, 

247, 257, 265, 306-- 310, 322, 361 

P 

Paramount rights, 6, 9, 10, 11, 20, 21, 

34, 120, 128, 179, 237, 346, 364 

Passamaquoddy Bay, Maine, 223 

Pearcy, G. Etzel, 64, 83, 84, 191, 196, 

197, 238, 255, 271, 272, 274, 276, 

281, 312 

Pier, 50-- 57, 140, 141, 142, 181, 189, 

191, 193-- 198, 203, 319, 360, 373, 

375 

Piscataqua River, New 

Hampshire/Maine, 168, 169 

Point Loma, California, 44, 51, 52, 53, 

190, 228, 269, 270 

Pollard rule, 8 

Port, 50, 51, 54, 89, 102, 108, 123, 

129, 133, 190, 191, 196, 261, 263, 

264, 269, 270, 276, 282, 313, 319-- 

324, 328, 336, 341 

Prescott, J.R. Victor, 178, 212, 221, 226, 

231, 232, 233, 245, 256, 258, 261, 

265, 266, 267, 272, 300, 308, 318, 

319, 352 

Prudhoe Bay, Alaska, 36, 135, 140, 

182, 189 

Public interest, 131, 132, 133, 141, 

188, 189 

Public trust doctrine, 3 

Q 

Quiet Title Act, 364, 374 

R 

Redfish Bay, Louisiana, 87, 88, 282 

Reduced area method, 242 

Reef, 38, 112, 152, 153, 157, 158, 203, 

212, 213, 214, 215, 280, 296 

Reimnitz, Dr. Erk, 134, 136, 139, 205, 

206 

Rincon Island, California, 53, 57, 197, 

198, 199, 203 

River, 19, 22, 24, 27, 33, 50, 58, 62, 

70, 72, 74, 102, 106, 107, 108, 112, 

134, 152, 158-- 170, 188, 190, 191, 

222, 224, 229, 243-- 247, 260, 268, 

270, 274, 278, 279, 282, 286, 288, 

294, 295, 310-- 319, 321, 322, 345, 

348, 364, 370 

Roadstead, 48, 322-- 324 

Rocks awash, 220 

Rule of the tide-mark, 175 

S 

Sabine River, 24, 27, 161, 162, 164, 

165, 190, 191, 315, 316, 364 

San Francisco Bay, California, 50, 248, 

249 

San Pedro, California, 50, 190, 195, 

263, 264, 269, 314, 319-- 323 

Santa Barbara Channel, California, 48, 

237, 238, 343, 352 

Screening islands, 63, 254, 255, 260, 

298-- 303 
Index 431 

Seawardmost points, 63, 284 

Selden, John, 97 

Semicircle test, 48, 61, 62, 63, 74, 76, 

80, 84, 85, 86, 108, 121, 143, 144, 

178, 224, 225, 226, 229, 230, 232, 

233, 234, 240-- 256, 257, 265, 266, 

269, 287, 288, 297, 302, 305, 307, 

308, 310, 312, 313 

Shalowitz, Aaron L., 45, 50, 57, 64, 68, 

69, 83, 84, 89, 164, 175, 179, 186, 

190, 200, 201, 228, 238, 241, 242, 

246, 255, 257, 261, 272, 296, 300, 

311, 314, 317, 319, 323, 346, 347, 

352 

Shelikof Strait, Alaska, 121, 125, 126, 

127 

Shell Keys, Louisiana, 70, 77, 291, 348 

Shevin, Robert, 31, 292, 353 

Shortest distance test, 51, 258, 262, 

263, 264, 265, 266 

Smith, Dr. Robert, 106, 107, 145, 185, 

232, 268, 352 

Sovereign immunity, 364, 374 

Special circumstances, 80, 111, 144, 

163, 165, 171, 200, 232, 255, 258, 

272, 275, 299, 302 

Special Masters of the Supreme Court 

Amstrong, Walter P., Jr., 67, 71, 72, 73, 

78, 79, 87, 89, 90, 94, 184, 228, 

231, 235, 262, 278, 279, 280, 281, 

283, 286, 292, 306, 334, 340, 

345, 348, 351, 353, 370, 371, 375, 

377 

Arraj, Judge Alfred A., 50, 185, 191, 

269, 373, 374, 375 

Clark, Justice Tom C., 18, 168, 171 

Davis, William H., 43, 45, 128, 129, 

209, 341 

Groner, Judge D. Lawrence, 43 

Hoffman, Judge Walter E., 94, 97, 

103, 167, 209, 263, 294, 304, 329, 

340, 353, 370, 374, 375 

Mann, Dean J. Keith, 36, 39, 40, 90, 

134, 138, 143, 146, 148, 151, 189, 

205, 210, 211, 235, 332, 340, 352, 

365, 374, 375 

Maris, Judge Albert B., 14, 15, 94, 97, 

98, 112, 279, 280, 290, 334, 338, 

353, 370--376 

Van Pelt, Judge Robert, 161, 163, 165, 

167, 168, 191, 374 

Spoil bank, 55, 142, 189, 198, 199, 

203, 204, 252, 296 

St. Bernard peninsula, Louisiana, 64, 

274 

Stefansson Sound, Alaska, 149, 332, 

351 

Straight baseline, 44, 47, 48, 65, 66, 

67-- 70, 75, 79-- 81, 90, 96, 116, 

117, 119, 122, 125, 145, 146, 

150, 151, 200, 218, 222, 237, 

238, 246, 271, 272, 302, 306, 

309, 313, 315, 322, 326, 343-- 

356, 362, 374 

Bird Sanctuaries, 69, 70, 348, 350 

Census boundaries, 69, 242, 346 

Chapman Line, 68, 69, 79, 238, 

240, 242, 268, 269, 346, 347, 348 

Coast Guard Line. See also Inland 

water line. 58, 59, 60, 322, 345 

Overall unit area, 44, 45 

Straits of Florida, 115, 116, 228 

Submerged feature, 203, 214, 317 

Submerged Lands Act, 5, 13, 14, 16, 

18--23, 25--160, 162, 163, 171, 

175, 177, 179, 181, 185, 187, 188, 

189, 190, 208, 228, 238, 240, 242, 

269, 315, 317, 329, 335, 346, 359, 

361, 367, 368, 371, 372, 378 

Exceptions to the grant, 23, 32, 42, 88, 

134, 151, 152 

Arctic National Wildlife Refuge, 36, 

40, 41, 42, 151, 157, 158, 

159,160 

Channel Islands National 

Monument, 33, 36, 44, 51, 237, 

367 

National Petroleum Reserve–Alaska, 

36, 37, 39, 42, 151--158 
432 Shore and Sea Boundaries 

Subsidiary water bodies, 232, 241, 242, 

243, 308 

Swarth, George S., 4, 10, 46 

Symmons, Dr. Clive, 140, 200, 202, 

204, 207, 208, 209, 212 

T 

Tariff Commission maps, 242 

Ten-mile rule, 237 

Terra nullius, 96 

Thalweg, 91, 170, 328 

Three-mile arcs, 53, 181, 191 

Treaty of Guadalupe-Hidalgo, 24, 33 

Twenty-four-mile fallback line, 75, 77, 

82, 92, 121, 228, 265, 306, 307--

309, 310, 314, 322, 361 

Twenty-four-mile rule, 48, 300, 301, 

302 

Truman Proclamation, 30, 334 

U 

Underwater sill, 226, 227 

Usage. See also Continuity. 89, 93, 100, 

101, 102, 117, 127, 171, 257, 324, 

338--343 

V 

Van Pelt, Judge Robert, 161, 163, 165, 

167, 168, 191, 374 

Vermilion Bay, Louisiana, 62, 247, 251 

Vineyard Sound, Massachusetts, 94, 95, 

96, 98, 99, 100, 292, 327, 329, 

330, 331, 338, 342 

W 

Waiver, 129, 130, 133, 141, 142, 187, 

188, 189, 368 

Well-marked indentation, 62, 76, 108, 

121, 143, 224, 236 

White, Jeremy, 233, 234 

Z 

Zuniga Jetty, California, 52, 53, 190, 

191, 203, 269, 270