Warren E. Burger: We’ll hear arguments next in Number 75-1157, Town of Lockport against the Citizens Community Action. Mr. Fuzak I think you may procede when you are ready.
Victor T. Fuzak: Mr. Chief Justice and may it please the Court. This is an appeal from a judgment of a Three-Judge District Court sitting for the Western District of New York. That court ruled that provisions of the New York State Constitution and of the New York State Municipal Home Rule Law relating to the procedures to be followed in connection with the effectuation of changes in the form or structure of county governments were unconstitutional as being in violation of the equal -- of the Equal Protection Clause of the Fourteenth Amendment. The provisions in question set forth the procedures which are to be followed in the event that the people of a particular county wish to change the form of their government. The traditional form of county government in New York State is a legislative form. That was the form in Niagara County with which this case is concerned. The constitutional and statutory provisions provide as follows: If the citizens wish to change the form of their government in any respect or to transfer functions of government between towns, villages, or the county, they can only do so if the county legislature adopts a local law for presenting those changes or providing for those changes, then that local law must be put to referendum of the citizens of the county as a whole, and then in order to have the local law take effect and become the law of the county, that local law must obtain the majority of the votes cast by the voters residing in the cities of the county, and it also must obtain the majority of the votes cast by the voters residing in the towns of the county, both taken as separate units. And whether or not the particular proposal obtains a majority of all of the votes in the county taken as a single unit is not determinative of the issue. The District Court held in this case that those provisions violated the Equal Protection Clause in view the fact that they denied the citizens of the county, the rights of the one man or "one person, one vote" doctrine. I might recite very briefly, if I may, the facts of the case to put the matter in perspective. In 1972, the Niagara County Legislature adopted a proposed local law, which would effectuate a new charter form of government for the Niagara County residents. That new charter form of government would have changed the county form of government from a legislative form to a combined executive and legislative form. It would have created the new positions, elective positions of county executives and other subsidiary county officials. It adopted that local law and it put the local law to referendum in November of 1972. At that referendum, the voters of the towns of -- residing in the towns of the county did not approve the proposed changes by majority. They disapproved of those changes. The voters who resided in the cities of the county on the other hand by a majority approved the proposed changes.
William H. Rehnquist: Mr. Fuzak?
Victor T. Fuzak: Yes sir.
William H. Rehnquist: In New York State, are town simply geographical areas or are they small cities?
Victor T. Fuzak: Well, they’re not small cities, they have different functions and they have different powers, but they do have internal government structures. The town will have a supervisor, the town will have a town board, and much like a city will have a Mayor and a City Council and that type of thing.
William H. Rehnquist: But the whole State isn’t divided into towns in the way some New England States have.
Victor T. Fuzak: Yes, I think it’s -- in point of fact, it is. The whole State is divided initially, the major super structure is the county, and then from there, you go to the city and the town, which have different rights and powers, and so on and, inclusive in the towns very frequently are villages, which was the case here as well.
Byron R. White: Well, as you state -- does the county here was what was involved is a new county charter?
Victor T. Fuzak: Yes sir, Mr. Justice White.
Byron R. White: Now, would the provisions of the county charter be equally applicable throughout the county?
Victor T. Fuzak: Yes sir, that's right.
Byron R. White: Or, with respect to everybody.
Victor T. Fuzak: Yes sir, that's right.
Byron R. White: Inside towns and outside?
Victor T. Fuzak: Inside towns, inside cities, everyone residing within that county is to be covered --
Byron R. White: Are they subject to everything that there is -- that’s in the charter.
Victor T. Fuzak: Precisely right, yes sir.
William J. Brennan, Jr.: How many towns are there, Mr. Fuzak, in this county?
Victor T. Fuzak: 12.
William J. Brennan, Jr.: And how many cities?
Victor T. Fuzak: There are three.
William J. Brennan, Jr.: And I gather, it is the aggregate, in other words, it must be a majority of the aggregate city vote and the majority of the aggregate county vote?
Victor T. Fuzak: Each taken as separate units.
William J. Brennan, Jr.: Yes.
Victor T. Fuzak: That’s correct sir.
William J. Brennan, Jr.: And there was a majority of the aggregate city, but not of the aggregate county?
Victor T. Fuzak: Correct, and it was a majority --
William J. Brennan, Jr.: Even though there maybe of the 12 towns, maybe nine of them, majority there may have voted in favor if the total was not a majority in favor then it was not?
Victor T. Fuzak: That’s correct sir. What you suggest is conceivable, I don’t exactly know how the voting went, but that is correct. What happened in the 1972 referendum was that if you took all the votes and put them into one basket, there was a majority in favor of the adoption of this new county charter. The proportion was 52% to 48% if you did it on that basis, but they did not get the complimentary majority votes that are required by the Constitution and by the Municipal Home Rule Law.
Potter Stewart: And the county is either city or town, there’s nothing, no part of county that's neither city nor town, is that correct?
Victor T. Fuzak: The County -- that’s correct sir, and then included on the towns, there are will be villages and there are villages.
Potter Stewart: The town is what we call our township.
Victor T. Fuzak: Yes sir, that is correct sir. So as the consequence of that failure to obtain approval, the County of Niagara commenced a suit in the District Court seeking a declaration by the District Court that those provisions of the State Constitution and the Municipal Home Rule Law were indeed unconstitutional on these grounds that they denied the "one person, one vote" rule under the Equal Protection Clause. The County of Niagara purported to bring that suit on behalf of all of its cities, all of its citizens within the county. The defendant in that suit was the State of New York. The District Court found that there was no substantial federal question, refused to empanel a Three-Judge Court and dismiss the complaint. That judgment became final. Thereafter, these individual defendants in this action, which the Citizens for a Community Action at the local level, the acronym for which is CCA, begun this action seeking precisely the same declaration of unconstitutionality and precisely the same relief. And that case proceeded now naming the County of Niagara as a defendant or those officials of the county who had official acts to do in connection with the certification of this proposed charter and also the officials of the State of New York who also had to do things in order to make the proposed charter of the local law of the county. There were no hearings in that proceeding, no proof was educed, instead cross motions were made for summary judgment.
Potter Stewart: This was in our Three-Judge Court?
Victor T. Fuzak: Now, there Three-Judge Court was empaneled in this instance, yes sir and cross motions for summary judgment were made.
Potter Stewart: Was there any reference in the course of empaneling a Three-Judge Court to the previous action in which a single judge had not even found it substantial enough to ask for the convention of a Three-Judge Court?
Victor T. Fuzak: Yes sir, the County of Niagara and the State of New York both asserted as affirmative defenses in their answers, the defense of res judicata based on that ground. Now, there was no particular reference in anything that I am aware of in connection with the empaneling of the Three-Judge Court to that previous determination.
Potter Stewart: Of course that would be part of the res judicata, isn’t it?
Victor T. Fuzak: Yes sir.
Potter Stewart: The single judge had found it so and substantial is not even to warrant a request for the convention of a Three-Judge Court?
Victor T. Fuzak: Right sir. So, the Three-Judge Court was empaneled and these cross motions for summary judgment were made, no proof was adduced and no testimony was taken.
William J. Brennan, Jr.: Affidavits?
Victor T. Fuzak: Some affidavits, Your Honor. The moving papers on both motions, I think would have to be characterized as extra ordinarily spare under the circumstances. There was no incisive review of the reasons for the passage of the constitutional provisions or anything of that nature in those papers. While the Court was considering those motions for summary judgment, the county legislature went ahead and adopted a new charter, or attempted to adopt a new charter in 1974 and before decision on this case summary judgment motions. In November of 1974, the county legislature put a new charter and a different charter up to referendum to the voters of the county, which, by its own terms, would supersede any previous charter or any previous form of government for the county and that was put referendum in the same fashion.
William J. Brennan, Jr.: And the form of that government, did that differ from the 1972?
Victor T. Fuzak: It differed in certain respects Your Honor, but not materially. There were some changes in it, I think made in order to accommodate some objections by some people in the town, that type of thing.
William J. Brennan, Jr.: But basically, it would’ve been an executive legislative part.
Victor T. Fuzak: That is correct. And essentially the same result. Essentially that same result and almost by the same percentages or proportions. Again, there was about a 52% total in favor if you took all of the citizens and put them in one basket, and 48% opposed but the citizens of the towns again reject the proposed change in their form of government, the form of county government.
Lewis F. Powell, Jr.: Are the differences relevant to this decision, to this case at all?
Victor T. Fuzak: No, I don’t think they -- I do -- I don’t think we can say that they are Your Honor. There are some different positions involved in the two charters, but I think for all intents and purposes, we ought to regard them here as being equivalent in their scope and in their application and their functions.
Potter Stewart: In the two charters?
Victor T. Fuzak: That’s right sir; that's right sir. After the November 1972 --
Potter Stewart: And then the two votes, regardless of the percentages of the non-precise numbers, the same, factually the two votes are identical?
Victor T. Fuzak: The same result, exactly right, so the voters of the town did not give it majority of approval, the voters of the cities did.
Potter Stewart: And there was an overall majority in this case.
Victor T. Fuzak: There was an overall majority. And again in that situation, the question came as to whether that charter could be implemented. And an application was made, the decision of the Court on the first charter, the 1972 Charter came down shortly after the November 1974 referendum with respect to the 1974 charter. The Niagara County people made an application to the Court to have its judgment apply not to the 1972 Charter which was subject matter of the previous action or the existing action, but to have it apply instead to the 1974 Charter. The Court refused to do that apparently on the grounds that it not have jurisdiction over the 1974 Charter which was not subject to the lawsuit. So, a judgment was entered in January of 1975, declaring a 1972 Charter to be the law of the land on the grounds that the New York State Constitution was unconstitutional and Municipal Home Rule Law was unconstitutional, and that since in spite of the fact that there were no statutory provisions to support this kind of an approach, that since there had been an overall majority, that therefore, that these changes that were proposed could take effect. And so, the January 1975 judgment said, the 1972 Charter is the law of the land. The Attorney General had indicated that he was going to appeal from that judgment. Shortly before the time to appeal expired, he made an announcement that he was not going to carry forward the appeal, and so the town of Lockport, supported by the other towns of the county, made an application for intervention which was granted for the purpose of prosecuting this appeal, and that’s why we’re here today. After that, after the appeal was filed, the State and county officials purported to put into effect the 1974 Charter and not the 1972 Charter as was provided in the original judgment in order of the Court. We raised questions of mootness on the ground that the subject matter of the original action had been destroyed by the subsequent conduct of the party’s litigant. That matter was up before the Court on our original jurisdictional statement. The case was remanded to the District Court, the original judgment was vacated, the case was remanded to the District Court for further proceedings in light of the 1974 Charter referendum. And another proceeding was had, again no proof, but counsels were summoned to the District Court. The District Court found that there was no mootness. The District Court denied an application by the call, plaintiffs here. They had made an application to make sure that the case did in fact have jurisdiction over the 1974 Charter to amend their complaint so as to raise the questions of constitutionality as to the 1974 Charter which would’ve fine. We would’ve had a trial and we could’ve gone through the whole thing, but that was denied as well and the Court found no mootness.
William J. Brennan, Jr.: Need to amend was denied?
Victor T. Fuzak: That’s right sir.
William J. Brennan, Jr.: Yes.
Victor T. Fuzak: The Court found in effect that it was empowered to make its previous judgment which related to the 1972 Charter applied to the 1974 Charter.
Byron R. White: And did it.
Victor T. Fuzak: It did do so, sir.
William J. Brennan, Jr.: Entered a new judgment, did it?
Victor T. Fuzak: It entered a new judgment in October -- in December of 1975.
Byron R. White: So there is no mootness problem in this case?
Victor T. Fuzak: Well, we claim there is a mootness problem and we raise that on this appeal, I would --
Byron R. White: Even with respect -- even after the remand and after the changes in judgment?
Victor T. Fuzak: Yes sir, because we -- our position on that is that prior to that happening the actions of these parties, litigants in fact destroyed the subject matter of the initial lawsuit which was a 1972 Charter. The 1974 Charter was never considered in the lawsuit at all. The record had closed and the matter had gone to appeal.
Byron R. White: But the Court has now -- so, you must say the Court was in error in having its judgment apply to 1974.
Victor T. Fuzak: Yes sir.
Byron R. White: As long as you accept that, it’s not moot?
Victor T. Fuzak: No. Yes sir.
Potter Stewart: But the most -- you claim that the Court did follow procedures that were unusual, if not irregular?
Victor T. Fuzak: Yes sir, I do.
Potter Stewart: But they did -- we do have a decision before us affecting the 1974 Charter?
Victor T. Fuzak: Exactly right sir.
Potter Stewart: Which is the existing charter?
Victor T. Fuzak: That’s right.
William H. Rehnquist: Well, isn’t your complaint with respect to that really that the New York officials without any Federal Court order had already put into effect the 1974 Charter?
Victor T. Fuzak: Yes sir.
William H. Rehnquist: And therefore, there was no need to litigate with respect to that since the plaintiffs had already obtained what they wanted, putting that charter into effect?
Victor T. Fuzak: Yes sir. That put us in a very peculiar position because, we then had to make -- take some action to protect our rights with respect to the 1974 Charter and that’s why we were required to start an action in State Court under Article 78 of our Civil Practice Law.
Byron R. White: Well, I suppose you would have some relief if we reverse the District Court?
Victor T. Fuzak: Yes sir, we certainly would.
William J. Brennan, Jr.: Well, let's see, you’re saying there’s simply no predicate for the order relating to the 1974 Charter?
Victor T. Fuzak: Yes sir. That’s one -- that’s what I am saying.
William J. Brennan, Jr.: There is nothing and therefore it’s an utterly proper order?
Victor T. Fuzak: Correct sir. What happened and point of fact was that when the matter was remanded to the Court, the Court on its own motion brought in the 1974 Charter and made it an exhibit in the proceeding and so on, and then proceeded from that standpoint to include it in the case and act on the 1974 charter, amend the original judgment to make it apply to the 1974 charter.
Potter Stewart: On the reasoning of its original judgment?
Victor T. Fuzak: Correct sir, exactly on the same reason.
Potter Stewart: And, you’ve already conceded the two charters for these --
Victor T. Fuzak: Essentially --
Potter Stewart: -- purposes of this case are identical?
Victor T. Fuzak: Quite Right, Mr. Justice Stewart. The issue here as we see it is whether or not the Equal Protection Clause among these issues, there are mootness and there are other issues concerning the relief that was granted by the Court, but I would like to address myself principally to the constitutional question of whether or not the Equal Protection Clause can require or does require a state to afford its citizens the right to determine by an election process compatible with the "one person, one vote" concept or doctrine, the form or structure of subordinate government instrumentalities within the State. And the appellant's position is that the state is not required to do that by any provision of the constitution, and that the intervention of the federal judiciary in this instance would be improper and was improper. And we say that for these reasons because what is at stake here is very clearly and purely State action within the proper sphere of State action; that is the establishment, the modification, the repeal, the amendment, the abolishment of the state's own internal government structures.
Byron R. White: But do you think you could provide that in a referendum on an Amendment of a county charter that the people in the town get two votes and the people outside the town get one vote?
Victor T. Fuzak: I think that there are -- in all, as in all of these cases, there are points that you reach where the situation is so apparently irrational that it calls for and would require and would merit some judicial intervention. I do not think, however, that the automatic application of the one person, one vote doctrine is proper in any sense.
Byron R. White: And, you would say that suppose there is -- suppose the county charter provided for the maximum milady (ph), just suppose that and there was a proposal that was subject to referendum that the milady would be raised, and you would say this provision in New York the way it is would be proper, namely that the people in the cities would have -- people in the towns would have to have a majority in order to approve the --
Victor T. Fuzak: Yes sir.
Byron R. White: Even though the provision applies to everybody equally?
Victor T. Fuzak: Yes sir, I would for this reason because unlike the other cases where this Court has applied the one vote -- “one person, one vote” doctrine, this case deals strictly and solely and purely with the question of the establishment or change of the structure or form of internal state government. The other cases as you all recall of course, dealt with questions of representation whether or not someone was being deprived of his equal vote in terms of representation.
Byron R. White: Oh! Yes, but just a while ago, you answered me and said that would even apply to milady change, that isn’t a structure?
Victor T. Fuzak: No. Well, I am sorry Your Honor, that is a different thing. You’re talking about a taxation matter.
Byron R. White: Yes.
Victor T. Fuzak: I am sorry, I misunderstood you, I didn’t hear you properly. Now, that’s a different thing, that would not apply in that situation because the --
Byron R. White: You would think that everybody would have to have an equal chance at defeating that law?
Victor T. Fuzak: No, that would not be an appropriate part of the charter. That would not be an appropriate thing for the local law to include as part of the structure of the government. That would be an action that would have to be taken by the appropriate representatives within the government after it was formed. I don’t --
Byron R. White: And some charters have set maximum miladies, I hate to tell him, but they do?
Victor T. Fuzak: Well, those -- that is not in this case, that is not an issue in this case, and the only the -- what is the problem here --
Byron R. White: All you’re talking about is the structure then?
Victor T. Fuzak: Exactly right. And that’s all that was done in this case, and as a matter of fact that's all that constitution or the Municipal Home Rule allows the counties to do is to change their structures in accordance with this complimentary vote, majority vote rule. So, I don't think we can get involved in the kind of problem that you raise Mr. Justice White.
William H. Rehnquist: So, the kinds of things that the New York law permits to be done, are those that the Court has done in Hunter against Pittsburgh?
Victor T. Fuzak: Yes sir, that’s right. It thus -- this case in no way involves any claim by anyone or cannot that anyone is being deprived of an equal vote in terms of the selections of governmental representatives, because whether there is a county charter or whether there is not a county charter, there is an appropriately constitutional republican form of government for the county, and there is no claim here of any discrimination in that sense. And, of course, most of the cases that the Court has applied, the “one person, one vote” rule too involve exactly that point as a matter of representation, the matter of portion, districting and that type of thing. This case does not involve that.
Harry A. Blackmun: Do you feel that Gordon against Lance gives you any support?
Victor T. Fuzak: Yes sir, I very definitely do because I think the Court there found that it was within the political process, political judgment, in effect, of the state to make a determination that instead of having a simple majority to approve additional municipal bond of indebtedness, there should be a requirement of a 60% majority, and the Court said that was perfectly alright, because in certain circumstances and situations, the “one person, one vote” rule does not apply. And, I think that’s very clear from the development of the cases because the Court has refused to have an automatic application of that rule, and that’s exactly what happened in this case, I am afraid, because I am afraid the District Court in rendering its judgment made an assumption that there was an automatic application of the “one person, one vote” doctrine and I take issue with that because I don’t think that is an appropriate assumption. I don’t think it’s appropriate constitutionally, and I don’t think it’s appropriate on the basis of the cases that this Court has decided, in which the Court has refused to apply it like Wells versus Edwards when you’re talking about the election of the judiciary and things of that nature.
Potter Stewart: Originally, that doctrine originally arose of course in terms of what’s called Representative Democracy in the legislative area, and then it was expanded to include one?
Victor T. Fuzak: It was expanded to some extent to include elections involving the incurring of public debt largely.
Potter Stewart: Kolodziesjski against Phoenix.
Victor T. Fuzak: Phoenix City or Phoenix versus Kolodziejski, City of Cipriano, Cipriano versus City of Houma, and that line of cases.
Potter Stewart: Well, and then also in the School District?
Victor T. Fuzak: Like Kramer against the Union Preschool District where there was an election of a representatives --
Potter Stewart: In the State of New York.
Victor T. Fuzak: State of New York, but where there was an election of a representative board, and again I think the overtones there were that the Board that was being elected was fulfilling the functions of representatives of the people and that, I think that clearly fell was in the Avery line of cases, Reynolds versus Sims, Baker, Carr and so on.
Potter Stewart: And, of course, Avery involved the town --
Victor T. Fuzak: Yes sir.
Potter Stewart: -- or county.
Victor T. Fuzak: County.
Potter Stewart: And Hadley against the Junior College or whatever it was?
Victor T. Fuzak: Hadley against the Junior College was another case involving, I believe -- it escapes from me at the moment, I’m sorry to say --
William H. Rehnquist: Junior College. (Voice Overlap)
Victor T. Fuzak: Junior College, yes.
Potter Stewart: You know that went pretty far away from legislative apportionment, didn’t it?
Victor T. Fuzak: The Hadley case?
Potter Stewart: Yes.
Victor T. Fuzak: Well, it did to an extent, Your Honor, and so do in fact, the cases where the one vote -- “one person, one vote” principle has been applied when the subject matter of the elective process is the incurring of public debt.
Potter Stewart: Rather than the structure of the governmental entity itself?
Victor T. Fuzak: Quite right.
William H. Rehnquist: And Hadley and Kramer were both elections to representative bodies albeit of lesser stature than State Legislature?
Victor T. Fuzak: Yes sir, that's correct, and the Court as found --
William J. Brennan, Jr.: And your whole point as I understand it is simply that we do not have here anything that smacks in the slightest of choice of representatives?
Victor T. Fuzak: That’s correct sir.
William J. Brennan, Jr.: You suggest whether or not the county may or may not have a particular structure of government?
Victor T. Fuzak: That is right.
William J. Brennan, Jr.: And whether it can say, even though there’s a majority overall, if it’s not a majority of the aggregate of the voters of the townships, then the county may not have that formed?
Victor T. Fuzak: Whether the state has that sovereign authority to do that in terms of setting up its own form of government.
William J. Brennan, Jr.: Well, apart from that the whole theory as I understand you of Reynolds and Sims and that line, whole line of cases simply is inapplicable?
Victor T. Fuzak: Exactly right.
Potter Stewart: And is it clear, may I ask that the, that the new charter or charters affect the towns quite differently from the way they affect the cities?
Victor T. Fuzak: I don’t think that’s exactly the case.
Potter Stewart: At all.
Victor T. Fuzak: No.
Potter Stewart: So you have --
Victor T. Fuzak: There is no certain -- Mr. Justice Stewart, in answer to your question, there is no transfer of functions as between any of the subsidiary forms of government involved in this particular charter.
Potter Stewart: But in this case that fact, it was not present?
Victor T. Fuzak: That fact is not -- does not --
Potter Stewart: So there’s no real rationale behind this in this case, is that it?
Victor T. Fuzak: Behind what sir?
Potter Stewart: Behind requiring a majority of votes of the town and the majority of the cities separately?
Victor T. Fuzak: Oh! I think there is a rationale behind it.
Potter Stewart: What is it?
Victor T. Fuzak: Your Honor, the rationale is that I think that people have, in different areas of a particular county, have different interests and have different requirements in terms of their county government.
Byron R. White: Even though under the new county charters, you’ve said earlier in your argument that the provisions will apply equally to everyone?
Victor T. Fuzak: They apply equally to --
Byron R. White: I mean , then everyone is subject to them to the same extent?
Victor T. Fuzak: That's right, except insofar as cities and towns do have by State Law, General State Law, somewhat different authorities and powers.
William J. Brennan, Jr.: Well, is it possible that if this is a valid system that the cities might override township interest because of the type of representation they get in county government?
Victor T. Fuzak: As in point of fact, what we have here in Niagara County what the situation is that there happened to be some more residents in the three cities than there are in the towns of the county.
William H. Rehnquist: Do town functions -- what are town functions in your view, is there any law enforcement function, do you have JPs or elector on the township basis?
Victor T. Fuzak: Yes sir, they have JP’s, they have a town board, they have a supervisor.
William H. Rehnquist: They have the constable.
Victor T. Fuzak: They have constables, they have general governmental functions.
William H. Rehnquist: Now is it possible that if the county develops an executive -- what do you have, a sheriff?
Victor T. Fuzak: There is a county sheriff, that’s correct.
William H. Rehnquist: Now, if the sheriff’s department expands a great deal might be need or use of the town constable be diminished?
Victor T. Fuzak: Exactly right.
William J. Brennan, Jr.: Well, you might end up with the county constabulary, is it a --
Victor T. Fuzak: Yes.
William J. Brennan, Jr.: So, are you --
Potter Stewart: Is it possible that the status quo might be more greatly altered with respect to the towns than with respect to the cities?
Victor T. Fuzak: Yes, I think that’s correct sir as a practical matter.
Harry A. Blackmun: Are your (Voice Overlap) taxes entirely separate from towns and cities?
Victor T. Fuzak: Yes sir.
Harry A. Blackmun: They’re not coincidental in boundary or anything?
Victor T. Fuzak: No, they are not.
Lewis F. Powell, Jr.: I was going to inquire whether there could be any adverse tax consequences to the residents of the towns.
Victor T. Fuzak: No, I don’t believe that’s true.
Warren E. Burger: We’ll resume at this point tomorrow morning at 10 o’clock gentlemen.
Victor T. Fuzak: Thank you very much, Your Honor.


Warren E. Burger: First this morning in number 71-1082 Askew against the American Waterways Operators, Incorporated. Mr. Dearing you may proceed.
Daniel S. Dearing: Thank you Mr. Chief Justice, may it please the Court. This case is here on appeal from the Middle District of Florida wherein a three-judge panel struck the Florida Oil Spill Prevention and Pollution Control Act in 1970. With permission of the Court, the argument will be divided between myself and the Attorney General Robert L. Shevin, State of Florida and I understand that the argument will also be divided to the appellees. Essentially, the operating facts or the operative facts bring in this matter before the Court today of the passage in 1970 by the Florida Legislature of its Oil Spill Prevention and Pollution Control Act. Now this Act, like most legislation was a result of recent history. The Florida Legislature was not unaware of the serious and deleterious effects of oil spills, massive oil spills in state waters. They are aware, all too aware of the results in the Torrey Canyon Disaster and the English Channel in 1967. They are too aware also of spills up country. For instance when the P.W. Thirtle went down and spilled 31,000 gallons of bunker sea oil into Narragansett Bay off to close to Rhode Island was reported to have ruined the fishing industry in Narragansett Bay as a pertain to oils spillage. They were aware also that the United States Congress was considering the Federal Water Quality Improvement Act of 1970. They are aware of the laborious steps taken by the various committees and the passage of this legislation. The Florida Legislature had convened and had been in session for only a few weeks when this matter came before its attention. The real impetus to the Florida Act however was the collision in collision in Tampa Bay of the tanker dealing the pump, and the spillage of 21,000 gallons of bunker fuel oil into Tampa bay. This brought home adequately and clearly to the legislature the dangers involved and being vulnerable as the State is to the ravages of oil spill pollution of its territory waters and so the legislature met and passed this Act. The Florida Oil Spill Prevention and Pollution Control Act which provides for absolute and unlimited liability against the owners of vessels, in any event, other major spill and which also provides for certain mechanics for the -- before the fact enforcement of the Act itself. Shortly, before the Act was to go into effect that is to say the financial responsibility provisions which are going to the effect the appellees before the Court today, plaintiff below file suit challenging constitutionality of the Act on several grounds. The lower court, the state defendant on the grounds that the Act was a valid expression of the State’s police power. But the lower court decided that instead of being a valid expression of the State’s police power it was in fact an intrusion into an exclusive federal admiralty domain and although the Act was challenged on other grounds, the court below decided issue on that fact alone, in that decision alone. Now the Florida, I think it is absolutely necessary to bring the Court -- invite the Court’s attention to two sections of the Act. First of all, Section 2 which sets forth the legislative intent contains this very brief but important paragraph. It says the legislative further declares that it is the intent of this Act to support and complement applicable provisions of the Federal Water Quality Improvement Act of 1970 and in Section 21 of the Act states that this Act being necessary for the general welfare the public health, the public safety of the state and its inhabitants shall be liberally construed to effect the purposes set forth under this Act and the Federal Water Quality Improvement Act of 1970. Under the provisions of the Act the State Department of Natural Resources was to issue certain regulations going to the mechanics of enforcement. These regulations, it is submitted must reflect the intent as set forth in this two phrases, the regulations as well as all other enforcement provisions of this Act, it is submitted, would have to comply and supplement the Federal Water Quality Improvement Act of 1970 and this is particularly important to the position of the State of Florida before the Court today. Now, the court -- the lower court found that the Act violated provisions of uniformity absolutely necessary to the Federal Admiralty Maritime Domain. Now, we submit to the Court that this is not true. In the first place, we submit that the concern with prevention and control of oil spill collision of territorial waters is not a maritime matter at all. But if it is, it is certainly a non-exclusive maritime matter where there is concurrent jurisdiction between both the state and the federal governments and we would illustrate that fact.
Byron R. White: You mean without any shoreside damage?
Daniel S. Dearing: No, Your Honor we don’t mean without any shoreside damage.
Byron R. White: Well, then what about when there is no shoreside damage does the state have any business in the area?
Daniel S. Dearing: If there is no shoreside damage then the state may not have any interest in the area to protect. We would submit however in response to the question that the ecological balance which is interrupted by a spill even though the slick never touches shore has a very detrimental and adverse effect shoreside.
Byron R. White: Well you mean on those people who are making their living at sea like in fishing?
Daniel S. Dearing: Mr. Justice White it certainly has an application there but it also has --
Byron R. White: Do you think, I just to ask you again does the State get any business providing the rule of liability for an oil spillage at sea that have no immediate impact shoreside?
Daniel S. Dearing: The State does not purport to have any responsibility --
Byron R. White: So your answer is no?
Daniel S. Dearing: No, Your Honor.
Byron R. White: Alright.
Daniel S. Dearing: Our answer is no. The question is I think, in that instance whether there is any adverse effect shoreside and only then does the State purport to represent to have any concern or interest in the matter that would give rise to the police officer.
Speaker: While you are interrupted, could I ask you if you read the District Court’s opinion as looking at the Federal Water Pollution Act as being an exercise of congressional jurisdiction in the admiralty area?
Daniel S. Dearing: The State does not so interpret it, Your Honor.
Speaker: What authority does the federal government have to adopt the Water Pollution Act?
Daniel S. Dearing: The State --
Speaker: What congressional -- what constitutional authority was Congress exercising?
Daniel S. Dearing: I believe the State that the Congress had authority under the commerce power to exercise and it did so exercises this power under in the Act itself, Mr. Justice White.
Speaker: And you don’t think it has anything to do with the -- with admiralty jurisdiction or admiralty power?
Daniel S. Dearing: No sir, we do not and we would --
Speaker: Does it make any difference?
Daniel S. Dearing: Yes sir, we think it makes a considerable difference.
Speaker: Well doesn’t if the question is a conflict with the Federal Act is it with the Constitutional Act?
Daniel S. Dearing: I’m sorry. I beg your pardon Mr. Justice?
Speaker: Well, let’s assume however the Water Pollution under -- whatever authority the Water Pollution Act was adopted. If the question is one of conflict with a valid Federal Act then it doesn’t make any difference of what the source of the congressional authority was?
Daniel S. Dearing: No, sir. It would not make any difference at all if the Florida Act it conflicts with the Federal Water Quality Improvement Act.
Speaker: If the District Court then did ascertain some conflict between the Water Pollution Act and the Federal -- and Florida law, didn’t it?
Daniel S. Dearing: Yes, sir. To be more specific, they said that the Federal Water Quality Improvement Act was proof positive or strong indication in the area that of the conflict that their conflict existed and we construed that to be or we interpret that as being giving grasp to the pre-emption question which is --
Speaker: Well then, is it really important in this case to talk about the admiralty jurisdiction if we’re really talking about the question of pre-emption under the Water Pollution Control Act?
Daniel S. Dearing: We believe it’s important not only because we’re appealing from an order that stated this was applicable that provisions of maritime law applied here. We maintained that they do not.
William J. Brennan, Jr.: Just tell me, Mr. Dearing if the source was not -- the admiralty power what was the source?
Daniel S. Dearing: Commerce --
William J. Brennan, Jr.: Commerce.
Daniel S. Dearing: -- Mr. Justice Brennan. Yes. We submit that the reason.
William J. Brennan, Jr.: Well, would it make a difference as perhaps I’m asking the same question Mr. Justice White did, would it make a difference on pre-emption whether it was the commerce power or the admiralty power?
Daniel S. Dearing: Yes it would for reasons if I may just the address myself briefly to it at this point.
William J. Brennan, Jr.: On the Jensen, I suppose.
Daniel S. Dearing: This is what the Court said below and this is what we take issue with. We don’t believe that this is a matter of exclusive jurisdiction (a) if there is any admiralty jurisdiction at all it isn’t exclusive, it’s concurrent and in (b) we would suggest to the Court that the reason it is not admiralty or maritime is because of traditional view of this Court. This is based upon the premise that the Court and the Court alone can determine the limits of the maritime grant under the Constitution. Congress cannot determine those limits. Only this Court can construe the Constitution. This Court has so construed the Constitution and defined the limits of the maritime grant as being and applying the locality test, those occurrences which occur on navigable waters. A sea to shore toward being consummated ashore is beyond the purview of that low county test limitation.
William H. Rehnquist: But Mr. Dearing if Knickerbocker Ice Company, the Court held that a land based employee’s workmen’s compensation claim couldn’t be enforced by the State because it was sufficiently closely related to the admiralty, surely the type of oil spillage you’re talking about here is a good deal more closely related to traditional admiralty jurisdiction and what the Court was talking about the Knickerbocker, wasn’t it?
Daniel S. Dearing: Yes, sir. We would agree that the incidental effect of the legislation on maritime law would be much more emphatic than would be the workman’s compensation laws at issue in Jensen and reflected in the Knickerbocker case.
William H. Rehnquist: What do you do with those cases?
Daniel S. Dearing: We would ask the Court to continue the statement that appeared in the Standard Dredging case and severely limit the Knickerbocker, the Jensen doctrine to its facts of workman’s compensation cases which is what this Court said of course in the Standard Dredging case that Jensen is limited to its facts and if we may, there is an alternative to looking at this from the point of view of the strict point of view of maritime law and I would invite the Court’s attention at this time to what the Attorney General has to say and I respect. Thank you.
Warren E. Burger: Mr. Shevin?
Robert L. Shevin: Mr. Chief Justice, may it please the Court. You Honors, just as maritime law was developed to meet the crisis of developing industry with peculiar problems, so environmental needs of today we believed demand their own jurisprudence. The Federal Act, the Water Quality Improvement Act is reflective of this need to develop new concepts of legal responsibilities in crimes against the environment. The Federal Act sets the pattern. The Florida Act we contend is a legitimate response to the Federal Act to the awakening of a growing necessity by Congress and if conflicts the necessity to deal with massive oil spills which is not here before it had been dealt with and if it conflicts with the tenants of Maritime Law or any other body of law then we contend that the conflict is purely incidental and unfortunate. There’s certainly is no a reconcilable conflict between the Federal and Florida Acts. The two Acts speak to federals state relationship, cooperation and meeting the threats of massive oil spills. The Act speaks of joint cooperation between the state and the federal government to meet serious economic and environmental problem. The national contingency plan that’s outlined in the Water Quality Improvement Act of 1970 speaks to a coordination of effort with matters such as containment, dispersal and removal of oil with state and local agencies. In the Federal Act, when it speaks of a marine disaster, it talks of coordinating all public and private interest so the two Acts they interrelate rather than conflict and the implication in both statutes is not competition but cooperation. And as Mr. Dearing point out the Florida Act itself says that the intent of this Act to support and complement the applicable provisions of the Federal Water Quality Improvement Act of 1970. Now many environmental problems at the state of local level exist, Your Honors in the first instance.
Speaker: Mr. Attorney General you -- just incidentally as you say as you put it is there a conflict between the Florida Law and the federal law?
Robert L. Shevin: Oh! No, Your Honor, we contend there is no conflict. There is no conflict between the Florida Law of 1970 and the Federal Water Quality Improvement Act of 1970.
Speaker: Is there a limitation of liability in the Federal Act?
Robert L. Shevin: There is in effect in the Federal Act, Your Honor, an absolute liability but it’s somewhat qualified with certain defenses that can be read.
Speaker: It’s limited liability?
Robert L. Shevin: To a certain extent not the same that was the 1851 limitation.
Speaker: But there isn’t any limitation on the Florida?
Robert L. Shevin: There is no limitation and to this, Your Honor, we contend that the Federal Government and the anti-preemption clause specifically granted to the State the right to pass any requirement of liability and those are the words any requirement or liability or the terms, the words that are used in the anti-preemption clause so we contend that the Florida Act is simply an extension. With regard to the question of limitation, the Federal Act does allow certain defenses, the Florida Act also allows certain similar defenses of acts of God, and third parties that would be responsible for the negligence and so forth are provided within the Florida Act as well that they can be raised. Your Honors, many of these problems exists in the first instance because of pressures to continue traditional tenants of established jurisprudence. Time manner concepts and property law obstruct the State many times in an effort to protect the rights of beaches of inland waterways of natural resources and compound problems with sewage treatment, water purity and other problems severe water pollution. So we contend that the Federal Act, the Water Quality Improvement Act is a step forward. It’s a threshold upon which the state local governments can build together with the federal government a new system of laws and environmental jurisprudence to meet the crucial demands brought by the industrial system itself. We contend that this is federalism in the truest sense. If the law were to seek to limit or to extend damages to the federal agency involved which is what the Federal Act speaks to, then and only then where there be a conflict. There is no irreconcilable conflict between the two Acts that are being reviewed here. If the Federal Act were to address itself to state recoveries which it does not then such conflict might be found. On the contrary, the Federal Act invites the state to impose any requirement or liability with respect to the discharged of oil into the waters of the State and Florida has done this. The danger of a massive oil spill by pollution is both a federal and a state problem that District Court by its decision we contend has frustrated this expression of federalism and if federalism is to be more than an academic theory then it requires an expression in the instant case by reversal of the lower court and a declaration of the Florida law is valid in all respects. This is a matter of particular concerned to Florida.
Speaker: Attorney General in your point, I think you stated in your brief that the District Court’s refusal to several portions of the state statute will not be disputed on appeal. Does this mean it is your position because I think you’ve just intimated that the Act is valid in its entirety and that you want the whole thing or --and would not be contend with any portions of it?
Robert L. Shevin: Your Honor, we take the position that the Act is valid in its entirety. Quite obviously, it contains the severability clause, the Solicitor General in his amicus brief which supports the position of the State in many respects disagrees with the position of the State in one or two other respects here just the Court to strike certain portions and allow others to remain and of course the Court has this option. But its our contention and we take the position in this appeal that the entire Act spell it and that within the traditional police powers of the State, the State has a compelling and urgent and reasonable need to legislate in this field to complement with federal legislation that release is not obtainable in the admiralty courts when the limitation of liability is based upon the value of the vessel after the fact because if the vessel sinks we’re talking about the limitation being based upon the salvage value of the vessel that this will not give us the type of remedy that’s necessary to cleanup massive oil spills and to give a relief to third party as to citizens of Florida who have a justifiable cause and cannot obtained any justice in the courts if they are limited to going in through an admiralty proceeding.
Speaker: Well suppose the Court should hold that the Florida Act in so far as it affects criminal facilities for instance is valid and the rest of it is not. Would you take at least that much if you could have it?
Robert L. Shevin: Well, Your Honor quite obviously, I’ll be less than candid if I said that we would not want to see certain portions at least certain portions of the Act upheld but we feel very strongly that the entire should be upheld. Your Honor, on this point of the relief and the remedy, I would challenge the appellees to show us how a third person, a citizen, a hotel owner whose surrounding beaches that are available to the public and to his hotel guests if those beaches are ruined how he’s going to receive relief in the admiralty courts and how the State of Florida is going to cleanup a massive spill in the admiralty courts.
Speaker: What about up to this day if a vessel sitting and appear are navigable waters causes a fire ashore and the hotel burns down? Now, what’s the governing law in that situation?
Robert L. Shevin: I think the governing law in that situation it would again depend if we’re talking about a sea to shore tort.
Speaker: I’m talking about the cause of fire that originates on the ship causing a shoreside injury now about the Admiralty Extension Act?
Robert L. Shevin: Your Honor, I believe in that case that the hotel owner would have his third party rights common law rights and would not be limited to the relief that the Congress purports to give under the Admiralty extension because I don’t believe that the Congress could properly extend.
Speaker: Then there must be a law in that area. Do you mean your answer depends on the constitutionality of the Admiralty Extension Act?
Robert L. Shevin: My answer to that question would Your Honor. Yes, sir.
Speaker: Let’s assume the Admiralty Extension Act is constitutional, what about the hotel owner then?
Robert L. Shevin: Well, I think in that case that he would be limited by to go into the Court of Admiralty. He would be limited in his remedies to that extent.
Speaker: So that this thing you’re talking about the people injured to shore by an oil slick, those people are like the hotel owner?
Robert L. Shevin: Well, there’s the hotel owner people who --
Speaker: Multiplied many times.
Robert L. Shevin: Many times citizens, the State in its cleanup processes.
Speaker: But again, assuming the constitutionality of the Admiralty Extension Act, what about that?
Robert L. Shevin: Well, Your Honor assuming the constitutionality of the Admiralty Extension Act. It creates a very serious problem except for the fact that the Congress and the Water Quality Improvement Act, we think founded that on the Commerce Clause specifically recognizes other responsibilities, other concepts of liability rather than the old 1851 Standards and specifically, Your Honor if the Federal Water Quality Improvement Act was considered by the Congress to be in the admiralty area dealing with oil spills then why would they have provided the Act that the remedies are in the Federal District Court? That would have been totally unnecessary.
Speaker: Well you must then be arguing also that the Admiralty Extension Act has been somehow modified by the water pollution.
Robert L. Shevin: Yes, we are arguing that the Congress --
Speaker: And that Congress has power to cede to that the State in effect that certain jurisdiction in this area in this zone.
Robert L. Shevin: Yes we’re arguing that the Congress recognized an emerging new concept that jurisprudence that they legislated accordingly, that they clearly gave the states the responsibility and invited the States to pass similar legislation and to go further and this is what the State of Florida has done and if the Water Quality Improvement Act is to have any meaning in the field of jurisprudence to be able to react to and prevent a massive oil spill, then the State ought to be able to legislate in this field as well. Now, You Honors, the Federal Act does nothing more than set minimum standards. I gives the states the rights to adopt more stringent requirements, this is what the State has done just like in the Clean Air Act, just like in the Water Pollution Act in and of the Air and Water Pollution Acts the State had been given the right to move further just like the present cooperation between the Federal Government and Florida to save Florida’s coastal lands and tidal waters. The Florida Act is no more violative of the Water Quality Improvement Act than our Water Quality Standards develop by the States violative of another Section of the law 33 U.S.C. 1171 subsection (b) of which requires a party seeking a federal discharge permit to obtain certification from the State Water Pollution Agency that the anticipated discharged will not violate state water quality standards. And if the non-preemption clause of the Water Quality Improvement Act is to have any meaning as a Congress intended, surely it should permit the State as Florida has done to allow private claimants in the state itself to recover under strict liability principles rather than the Fault Concept of Maritime Law and they speak of uniformity. Certainly, uniformity would be something that the maritime attorneys would desire and perhaps the insurers would desire uniformity but the Solicitor General in his brief agrees and concedes that although the application of Florida standard of liability absolute might create a lack of uniformity that this is not a subject requiring uniform federal regulation, that there has been no preemption and even if negligence is considered to be the standard, there is no policy of Maritime Law opposed to liability without call for damages caused by oil spill from ships that Florida has a legitimate right and interest to legislate and to apply the standards of liability and view of the potential impact of oil spills on Florida’s environment and economy and that the Solicitor General in other words contends that this is an area of concurrent jurisdiction. Now, the lower court apparently felt that each course was dictated by a series of earlier cases Jensen, Knickerbocker, Dawson and these cases have been mentioned by Mr. Dearing. However, these cases are more than 48 years old. There are dubious logic this Court has severely limited their application and it is hope that this precepts will not be perpetuated simply by the inertia of the rule of President because if this Court affirms the District Court --
Speaker: Well, are you suggesting we overrule Jensen or that we --
Robert L. Shevin: Well Jensen, I am suggesting that Jensen has already been severely limited and as a result of the limitation.
Speaker: I have said earlier it’s limited them largely to conflicts on personal entry case?
Robert L. Shevin: Yes, on workman’s compensation.
Speaker: And that’s the way you want to leave it?
Robert L. Shevin: Yes, sir. We contend that that’s the way that you are to believe it.
Speaker: Does Jensen have to do with the sewage cited against (Inaudible) isn’t it?
Robert L. Shevin: Yes, it is.
Speaker: Doesn’t it have anything to do with shoreside damage?
Robert L. Shevin: That’s correct, it has absolutely nothing --
Speaker: What do you need to modify that at all?
Robert L. Shevin: Well, I’m contending Your Honor, that the lower court based its decision basically are Jensen, Knickerbocker, and Dawson which we think is inapplicable.
Speaker: As a general principle that anywhere there’s admiralty it’s exclusive?
Robert L. Shevin: That’s correct, that’s was the basis of the lower court’s decision. Your Honors, we contend that if this Court affirms the District Court that will be tantamount to affirming 200 years of law but no justice. Thank you.
Warren E. Burger: Mr. Healy.
Nicholas J. Healy: Mr. Chief Justice and may it please the Court. The subject of this appeal if Your Honors please is not water and the need to conserve it as the state contends. There is no issue whatever between the appellants and any of the appellees concerning the absolute necessity of maintaining a clean environment particularly in the marine area. There’s only one genuine issue in our submission which is presented here and that is whether as the court below decided, the subject of marine oil pollution like other subjects of maritime law should remain within the federal domain within the domain of the Congress and this Court and the other Federal Courts or whether to borrow a phrase from Mr. Justice Frankfurter’s concurring opinion in the Wilburn Boat case. It should be left to the crazy-quilt regulation of the different states. In this connection, we respectfully call the Court’s attention to Table B annexed to the brief of appellees American Institute of Merchant Shipping and others which contains a sampling of the various state laws in this new field. This shows that the clients, if Your Honors please that there is a great deal of difference among the various States in their handling of the pollution problem.
Warren E. Burger: Mr. Healy, historically about when did the oil spill problem become a serious problem in navigation?
Nicholas J. Healy: I would say, Your Honor about 1924 or a little before. The 1899 Refuse Act makes no mention of oil allow although, I’m sure you are aware sir the courts have been applying the 1899 Act to include discharges of oil and have been finding ship owners for causing discharges of oil. But the first time oil was at the mentioned as such in a federal statute was in 1924 Oil Pollution Act which was amended in 1966 and was repealed by the Water Quality Improvement Act of 1970.
Warren E. Burger: But historically is there some correlation between the development of the very, very large tankers and greater incidents of oil spills?
Nicholas J. Healy: I don’t believe the size of the tankers has had much to do with it because there had been very few incidents of spills of large quantities of oil from large tankers. The Torrey Canyon of course is the most notable but there is no doubt that the increased need for oil in the more developed countries and also now in the developing countries has greatly increased the need for ocean tonnage in the tanker area. And many, many times more oil is being carried today by sea than it was carried just a few years ago. Another development, Your Honor is the tendency to refine or at destination rather than at the source. Now this increases the potential for pollution damage but on the other hand it minimizes the number, the tragedies that resulted from explosions and fires on the vessels carrying gasoline and so on. The admiralty clause if the Court pleases is not merely a constitutional grant of judicial power. It’s perfectly true that its couched in terms of judicial power but when read conjunction with necessary and proper clause, this Court has repeatedly held that it grants to Congress the paramount power to legislate in the maritime field and where Congress has not acted then it is for this Court and the lower federal courts to define the General Maritime Law which is to prevail throughout the whole country and not just in one area.
Speaker: Did Congress purport to say what authority was being exercised with the Water Pollution Act?
Nicholas J. Healy: To the best of my recollection no, Your Honor. There is no mention of the constitutional clause under which it was acting but is seems to me clear, if Your Honor please, that it must have been the admiralty clause rather than the commerce clause because otherwise what possible right would Congress have to pass legislation which would relate not only to vessels engaged in interstate commerce but even to local barges that may never leave the waters of the single State and which may cause damage only to the waters of that State and to the shoreline of that State.
Speaker: What’s the consequence if it was the admiralty power, Mr. Healy?
Nicholas J. Healy: If it was the admiralty power then it doesn’t make any difference whether the vessel concern was engaged and in interstate or foreign commerce. It would apply to a barge on a river which never left the confines of the particular State if it was the --
Speaker: But does it make any difference with respect to the issues of this case?
Nicholas J. Healy: In this case it does, if Your Honor please, because of the innumerable decisions of this Court holding that uniformity in the maritime law --
Speaker: Well, does this go so far -- as essential suggest that if its admiralty then there’s absolutely no power of any kind in the States?
Nicholas J. Healy: There is one exception, if Your Honor please, and that is the local concern doctrine. If the matter is purely one of local concern and it’s a matter concerning which Congress has not acted then the States --
Speaker: And whether it’s personally to use anything else?
Nicholas J. Healy: That is right sir. Now it’s proved that the Jensen case has been criticized severely as the attorney --
Speaker: That’s none of the statement, I suppose is it?
Nicholas J. Healy: But I’m wondering, if Your Honor please, whether the criticism of Jensen hasn’t been focused in the wrong directions. I can certainly sympathize with those who feel that the court in the Jensen case could if it had wished have decided that workmen’s compensation laws of a particular state applied to shoreside workers when on board a vessel loading or discharging in the particular state, should have been considered as a matter of local concern. I think that’s the advice of the Jensen case if there is any. But I think the philosophy behind the Jensen case is the best thing that has ever happened to the steamship industry and the people who depend on it for their profits because --
Speaker: Does Harbor Workers’ -- does a Harbor Workers’ Act preempt State Compensation Act?
Nicholas J. Healy: Yes, Your Honor.
Speaker: With respect to everyone whose covered by?
Nicholas J. Healy: Yes, Your Honor, the Harbor Workers’ Compensation Act of course was passed in order to remedy the situation left by the Jensen Case and it applies to all workers when may all maritime workers engaged in maritime appointment when they’re on board the ships.
Speaker: Jensen, wouldn’t have kept the State from giving a workmen’s compensation remedy to people who are injured on shore?
Nicholas J. Healy: No, sir this Court so held --
Speaker: But the Harbor Workers’ Act provides the remedy for them if they’re in maritime pursuits, doesn’t it?
Nicholas J. Healy: No sir, not if they injured to shore.
Speaker: So it’s just in -- just on ship?
Nicholas J. Healy: That is right sir, the employer must carry.
Speaker: Could it have that done so? Congress? Could have coverage shoreside Harbor Worker injuries?
Nicholas J. Healy: I believe it could under the extension -- the Act of Extension of Admiralty jurisdiction.
Speaker: But it wouldn’t necessary have to been exclusive?
Nicholas J. Healy: It would seem to me that if the Congress once chose to act it would have to --
Speaker: You have to say that, don’t you, on your brief please.[Laughter]
Nicholas J. Healy: I think so but it seems to me that if Congress once chooses to Act, it occupies the field and there is no room for state action.
Speaker: There’s no independent congressional intent or is it just a question of fact that the judiciary addresses itself to as where there’s been preemption. Meaning your Water Quality Improvement, you had this expressed negation of preemption.
Nicholas J. Healy: Well the, if Your Honor please the Act simply says that nothing in this Section shall be deemed to prevent any state from enacting water pollution legislation or words to that effect. It doesn’t say that -- it doesn’t state in a positive way, it’s more in --
Speaker: Well suppose that it said is some areas but defining them, this Act does preclude concurrent exercise of power by the States. Would be any different?
Nicholas J. Healy: I don’t think that Congress could consistently with the decisions of this Court --
Speaker: I guess you have to say that don’t you?
Nicholas J. Healy: I suppose I do but I believe it. The Knickerbocker Ice Company has so held and as far as I’m aware there’s never been any decision to the contrary.
Speaker: The Knickerbocker Ice and the rest have a personal entry cases.
Nicholas J. Healy: Well, that’s right.
William H. Rehnquist: And that wouldn’t be true if these were they’re just a commerce power on land, whether Congress wants to say the states can have concurrent jurisdiction. There is no principle of law that prevents the States from having concurrent jurisdiction. So your depending basically in the admiralty approached to it?
Nicholas J. Healy: That is right sir. The line of cases has been quite different and of course, I suppose it’s largely historical when the Constitution has adopted the only interstate and foreign commerce of any account at all in this country was by water. We have no railroads or airplanes or trucks.
Speaker: Well I suppose you would still be here even if there were no federal water improvement legislation at all would you?
Nicholas J. Healy: Absolutely, Your Honor.
Speaker: Just for the claim that Florida was without power to legislate in the area of admiralty?
Nicholas J. Healy: Absolutely. We are not.
Speaker: And that was the basic decision of the District Court, was it not?
Nicholas J. Healy: Exactly sir. We are not arguing that the Federal Act preempts the whole field. It does not, the Federal Act applies only to U.S. Government clean-up costs and with reference to that, if Your Honors please, the Attorney General challenges these to explain how the poor hotelkeeper whose beaches were damaged could find relief in admiralty. Well, I think the answer is that under the Federal Act Congress has appropriated huge sums of money and has charged the Federal Government with the obligation of cleaning up an oil spill and no distinction is made between Government-owned property and private property if the shoreline has damaged, the Government comes in and cleans it up if the owner doesn’t clean it up and if the Government doesn’t it then the Government is entitled to reimbursement subject to a limitation of a $100.00 per ton with sealing of $14 million and subject to a four defenses: act of God, act of war, negligence of the Government itself and act or omission of the third party.
Speaker: But the Government doesn’t quite -- doesn’t -- wouldn’t provide in a loss of profits --
Nicholas J. Healy: No, sir.
Speaker: -- which might be recovered in the private suit?
Nicholas J. Healy: No sir but in a private suit of course the hotelkeeper could sue and for his loss profits and if the spill were very bad one and the vessel were damaged so that you have very little value left, it’s true that the limitation of liability statute would be applicable.
Speaker: Now an absent of the Water Pollution Control Act and absent the Admiralty Extension Act, you wouldn’t be here would you?
Nicholas J. Healy: Yes, Your Honor because --
Speaker: Under the decisions of this Court prior to the Admiralty Extension Act?
Nicholas J. Healy: Yes, because we are dealing here with liability not only to shoreside property but to the water and to ships.
Speaker: I agree with you. I should have limited the question to shoreside damage.
Nicholas J. Healy: As far as shoreside damage is concerned we will not be here.
Speaker: Absent of the Admiralty Extension Act.
Nicholas J. Healy: That is right, sir.
Speaker: Yes, thank you.
Nicholas J. Healy: With this reservation, if Your Honor please, the Florida Act of course applies to terminals as well as to vessels.
Speaker: Right.
Nicholas J. Healy: And if a terminal shoreside facility causes a spill and damages cause to another shoreside installation or shoreside property, there might be a question, a serious question of admiralty jurisdiction and federal substantive law the General Maritime Law applying but here the terminal is liable also for damage under the Florida Act for damage to another ship or for damage to the water and for the cost of cleaning up the water and thus, the Fifth Circuit -- the Court of Appeals said in a fairly recent case nothing is more maritime than the sea. Therefore, I think is quite conceivable that even a statute which was limited to damage caused by shoreside installations to water and certainly to vessels would be unconstitutional. Certainly, the damage to another vessel by shoreside installation is admiralty and was even before the 1948 Act. My colleague Governor Collins will continue the argument. Thank you.
Warren E. Burger: Governor Collins.
Leroy Collins: Mr. Chief Justice, may it please the Court. I respect very highly Attorney General but I find that some of his statements here to be frankly incredible. When he makes a flat statement that there is no conflict between the State Act and the federal laws, I think his badly wrong as I’d like to try to demonstrate. In fact, the District Court after considering this case found that there were so much in conflict and so much wrong about the State Act that if it were stripped of all of its conflicts there would be no viable act left and that is the reason why we have not considered that there was any question of severability the remaining of course I don’t deny that this Court would have every opportunity he did ask to deal with the case in that way. But the pilot himself in his brief acknowledges that there is no basis of severability here and we strongly make that contention too. There was no question raised in the jurisdictional statement regarding severability and so we do not believed that question is properly before this Court on the initiative of the parties involved here. The thing I would like first of all to emphasize is the fact that, what Florida really seeks to do here is to establish in the words of the Solicitor General, I comprehensive regulatory scheme. It’s not just an Act dealing with these couple of matters of liability without thought and limitation of liability. The State of Florida puts itself in the business of regulating, what is obviously, admiralty jurisdiction and it regulates it in a very comprehensive way. This involves to control and regulation of ships as State Act does. It involves terminals that exist for the purpose of servicing to those ships. It involves navigation in the navigable water of the United States very importantly. This total scheme is what the District Court invalidated and what we feel this Court should do. Let me refer to just a few of the provisions of this law that haven’t been mentioned here at all. The law provides of course for licensing of these terminals in the issuance of certificates of registration for them annually provided, the terminals demonstrate that they have certain equipment on hand and that they are disposed to cooperate completely with the State and in any program of prevention and correction of oil spills. And it follows this language, the Department that’s the State Department shall adopt regulations to govern operating and inspection requirements for facilities, vessels, personnel and other matters related to licensee operations under this Act and specifically requiring that vessels, transporting pollutants within state waters shall maintain on board such containment gear as may be required by the Department that it is to state with a crew trained in the use of such gear. Now this is what the state is seeking to do. The States further makes provisions under this law for the designation of support managers and take a look at some of the duties and obligations and rights of these port managers. They are to organize recover teams, that’s understandable although the federal law provides for what they call strike forces which is the same function really. These port managers are authorize to board vessels that out there they are going to come into the port to inspect these vessels for the seaworthiness and of course that can include a great many things and to decide whether in their opinion the port manager, the State manages a few it is seaworthy and decide whether it has a proper gear on it and decide whether its crews have been trained suitably to allow to them to enter one of Florida’s level deep-water ports. The port manager also has the right after he stops the ships out there to tell them that he must anchor, he can’t come in now because of whether conditions and if he does come in, he can tell him where to go and where to stop and other things at a purely operation and navigation limit completely covered by coast guard services and other federal services at the present time. The law also provide for the preparation of a contingency claim. Invite -- involving all the agencies of the State Government to help it enforce all of these provisions and to help provide remedies for spill if it occurs. This of course is patterned directly after the Federal Government. The 1970 Water Quality Improvement Act was passed to defense of this Act and obviously, the Federal Act was before the draft of this Act and was used as a model somewhat. What the State was just trying to do is do all the federal governments going to do and do much more in conflict with some of the things the Federal Government provided. Now, in doing all these things as port managers authorized to do, he runs squarely into the coast guard and its responsibilities. This is a comprehensive federal contingency plan and there is a federal contingency plan responsibility for recovery spills and strike forces and all of these things are all provided under that Federal law and the coast guard, the federal authorities of course have authority to prevent ships from coming in and giving them directions at which the state is putting itself in business of doing so. Here you have very specific conflicts but these conflicts are just the beginning. This navigational management of conflicts because both state and the federal require showing the financial responsibility, the state makes no provision for accepting and showing that the Federal Government requires a financial responsibility. This imposes its own making it a little tougher and there is a provision that and I don’t know just how this should be interpreted but in all these where the cost guard and the state teams move together while it’s a provision that the State shall act independently of the federal authorities.
Warren E. Burger: Well Governor, is it your position that the regulation of the State under the State Act is so pervasive that none of it can survive?
Leroy Collins: Yes sir, that’s absolutely sir. And of course we go and that there are all these conflicts regarding the extent of liability limitation and non-limitation of liability, the State deprives people of rights and defenses in very harsh terms that are in conflict with the federal terms, and all of these other things that are mentioned herewith. Now, and the State frankly insist that its law supersede those of the Federal Government in these respects. And we say that it is a Congress’ responsibility to regulate in this field and it must be the Congress’ responsibility to regulate in this field. We are proud about beaches and of course we want to protect them why therefore denying other States of the union who are equally proud of those that they have or may have and this is a matter that requiring uniformity of action and that action can only come through federal leadership and federal direction. A room for the States to cooperate but this is not any way for the State to seek to cooperate with the Federal Government in its comprehensive plan to deal with this very difficult problem. Now, I think the best of all the cases and very essentially that dealing with this matter of federal state relations and responsibilities in the admiralty field is Kelly against Washington. And there you have read pervasive state statute that sought to provide inspection of boats and ships that were not provided to be inspected by the Federal Government and do all kinds of boats, some of them foreign commerce, some in the interstate commerce, some in intrastate commerce. And the State Supreme Court there held that that Act was an improper innovation of the Federal Admiralty Domain though it did apply only to ships not subject to federal inspection. And the case came up here and Justice Hughes wrote the opinion for the Court and he sets out very clearly the three governing rules that apply and I think applied right here. First, he says is there a conflict with federal law? He says if there’s a conflict with federal law, the federal law prevailed because it is paramount and the state law fails. Secondly he says, if the subject is one demanding uniformity whether a conflict or not that the state action will not be permissible. Well, we submit here we have a proposition that does require uniformity of dealing. Then he said that there was room for a state to deal with purely local exigencies when there was neither conflict nor a necessity for uniformity and some very limited action was allowed the State to act in this area pending action by the Federal Government. Now, those are the -- that’s a modern rule for protecting the maritime, a jurisdiction and administration of this nation and it does belong to this country and if doesn’t belong to the several states because that has a countrywide responsibility and a nationwide responsibility and I submit that on all three of those considerations that this Act fails. They argued that hereon which cited the Kelly against Washington Case. The case of Michigan over there was a municipal coordinate dealing with smoke intensity and the Court allowed that to stand. They claimed that that where there’s a -- was a departure from Kelly against Washington. It was really an effort by the Court to adjust to that little local room there, a local exigency, the particular situation which provided the misdemeanor for a ship to be emitting smoke in the City limits of Detroit.
Speaker: As I remember Governor, there was no federal statute on that wasn’t it?
Leroy Collins: No sir, it was not.
Speaker: Federally license to the vessels [Voice Overlap] that if somehow was an impairment of the federal license to court.
Leroy Collins: Yes, it was claimed that federal inspections were required of this and this particular type of (Inaudible) met with federal inspections and there was a strong dissent in that case that my personal feeling would follow actually, that was by Justice Frankfurter and Mr. Justice Douglas. But even so that’s just a tiny, tiny island there that that cannot be possibly be a base of foreign act that this is as far reaching this as this went years. So we say it is up to the Congress to say what the (Inaudible) is and I would like to call the Court’s attention to the fact that the Congress had not been lax in its interest in this matter. It is move very importantly over the last 25 years that to meet needs that arising in this matter of greater and greater demand for more and more shipping of oil to meet the greater and greater demand for electric power this country and that same thing is true all over the world. This is a serious problem but it’s not one that the Congress is not aware of. It’s not one that the Congress didn’t moving very specifically and very importantly to meet. In our case, there is conflict, the United States is exercising its paramount power and the State is seeking in to supersede this. In our case, there is a necessity for uniformity. They argue about. They can’t possibly say that this matter of controlling this kind of navigational operation and experienced is a local matter. But we could have an oil spill at Pensacola that might not hurt Pensacola totally and might wind up in Mobile and it creates a problem in that state. Now supposed to use a hypothetical case we had a spill up near New York and it got to go stream and started drifting up the New England Coast there. Well, if they applied the law that the Attorney General is seeking to uphold here then you will have a New York State. A team out there trying to deal with this matter and telling the master of the ship what to do with the ship and how to handle it and trying to manage a team and then when did this spill across the Stateline and you got into Connecticut while here’s another state out there with another team and whole regulations and more controlled and different ones and so it goes the main you’ve have the same sort of thing. This is definitely an area which we require uniformity and requires the kind of action that the Federal Government is applied at the present time. In the national conventions of a dealing with this subject and importantly and of course this would supersede any state regulation. The ship as I represent do not seek to avoid regulation concerning oil spills. On the contrary, they had worked with Congress and continued to do so in relation to oils spill legislation. However, this ship was worked daily in the complexities of the federal admiralty scheme and they realized as a practical matter and impossible situation would exist if States were free to legislate within the area of oil spill control as Florida seeks to do. There is a better way now. There is a better way then for each state to try to outdo the Federal Government. We’re all in this together, the State Act should be found invalid here at the District Court has. And the interested state should then find ways to exhibit their effectiveness in the formulation support and execution of federal policy in this field and there is no lack of federal power, there is no disposition by our federal leadership not to move, there’s no lack of awareness of the States involved for Florida and all the sister states as well. So we submit the case, the decision should be affirmed. Thank you.
Warren E. Burger: Mr. Attorney General you have about four minutes left.
Robert L. Shevin: Mr. Chief Justice, may it please the Court? Governor Collins if that spill that you referred to ends up in Mobile then I would hope that the State of Alabama has a law similar to Florida’s because then they could take care of that spill. If it ends up in Pensacola then I want to be certain that the State of Florida can cleanup that spill and at the people who are damaged by that spill have a right of recovery in a court of law and are not limited by high bound traditions which do not speak to the question of massive oil spills. By the use of the words, any requirement or liability in the Water Quality Improvement Act, it is clear that the Congress fully intended to give broad latitude to the States to enact whatever requirements of liabilities and standards of the states deemed warranted in the exercise of their legislative powers to prevent and control and provide relief from oil pollution. Congress was not only acquiescing in the enactment of state legislature they were actually inviting the States to act to pass its legislation and pursuant to this invitation Florida passed its law and this law was based on direct and compelling interest that the State has urgent interest for the protection of its economy and its environment. It’s the proper exercise of the police power the State to protect our citizens and a such should be given the full weight despite the lack of uniformity which the Act -- which might result because of the Act. Now, if it please the Court, the Federal Admiralty Extension Act we contend was improperly extended by the Congress beyond the constitutional jurisdiction of the admiralty court. However, even if the extension Act were to apply and is upheld by this Court and even if the Water Quality Improvement Act was bottomed on admiralty rather than commerce there’s still would be room for state action. This is not in exclusive domain, there is still room for state action, there’s still concurrent authority and the Solicitor General in his amicus briefs says uniformity and we agree must yield to the overriding need for the State to legislate for the interests of its citizens. Florida has legislative within the traditional bounds of the State’s police power and to protect our citizens and to protect our environment.
Warren E. Burger: To have uniformity yield would mean overturning a long, long line of authority, would it not?
Robert L. Shevin: No, Your Honor, I think not because the Jensen, Knickerbocker, and Dawson cases have all been very severely limited and this Court has never dealt with this emerging law particularly with regard to massive oil spills and uniformity has yielded in the past where there’s been an overriding state interest to protect and I don’t think it requires the overriding of the long line of cases.
Warren E. Burger: Is it conceivable that all of the coastal states had Acts of one kind to another that it might pass your inspection in Florida wherein they put in to Miami if they put in there in Pensacola but that they might not pass it Mobile or they might not pass it to other parts.
Robert L. Shevin: Well I think Your Honor, Mr. Chief Justice you are now speaking to the argument that was raised as far as containment gear and inspection of the vessel or what type the gear it has on.
Warren E. Burger: Equipment, generally.
Robert L. Shevin: Well, let me speak to that because I think that would be the test. There had been no Florida regulations promulgated as to what type of containment gear this vessel must have to be able to prevent the spill and take it up as soon as it occurs. The coast guard has not yet promulgated regulations and to rule our Act or that Section invalid this Court must presume that Florida’s regulations will conflict with the federal coast guard regulations and we don’t think that this Court should presume that or speculate with regard to what the regulations will be. We think it’s entirely consistent with the Florida Act which says this Act was designed to complement the Federal Water Quality Improvement Act that certainly as to questions of containment gear and this type of regulations that those regulations would be promulgated to be consistent with the regulations of the Federal Government. If I may just end, Your Honor, I think my time is just about out. We asked them -- we challenged them to show us how Florida and its citizens would be able to receive damages for cleanup. And they said, well the Federal Government is coming and cleanup the beach but we don’t want to have to rely upon that. We are not certain that’s going to occur, that’s not part of this record if the Torrey Canyon went down 16 miles off from Florida rather than 16 miles off of London there wouldn’t have been no recovery. We have been limited to $50.00 salvage value and that’s why the Water Quality Improvement Act gives broad powers and directs the State to Act and why is they’re presently pending before the Senate of the United States a treaty which would be near to unlimited liability, $15 million and a contingency fund and absolute or strict liability, why is that treaty pending if existing federal law is enough to provide cleanup cost and damages? Obviously, existing federal law is not enough. The Water Quality Improvement Act seeks to speak in this field, directs the State Act. The State has acted constitutionally. We ask you to uphold this law.
Warren E. Burger: Thank you gentlemen. The case is submitted.