Warren E. Burger: Original number 45, State of Washington against General Motors. Mr. Tausend, you may continue.
Fredric C. Tausend: Mr. Chief Justice and may it please the Court. Yesterday afternoon I told you what this case was about. This morning, I hope to persuade you to exercise your discretion to accept this case as an original action. The States who are Plaintiffs in the amici seek two things. One, a single unified trial of the antitrust for equitable relief only, and two, a speedy resolution of this litigation so that what now appears to be the most adequate equitable remedy namely retrofit of pre 1968 cars at the expense of the defendants can remain a viable possibility for the Court to administer if it sees fit to do so at the conclusion of the case. Under the standards which this Court lay down in Wyandotte and Georgia, you must been exercising your discretion ascertain first if there was an alternative forum to which this case may be remitted in the interest of convenience, efficiency, and justice. Now clearly because this is a Sherman Act, Section 1 case, that forum must be a federal one. The appellant's alternative forum that comes to mind is the District Court in the Central District of California at Los Angeles, the Multidistrict Court. Judge Real has served almost two years as the 1407 transferee judge. He is familiar with many of the facts in this litigation in that capacity. He has presided over extensive pre-trial hearings I believe there have been at least six. He has attended portions of a two depositions of officers to the defendants that have been taking to date. He has read some of the documents which were submitted to him in a brief under seal and he has made it clear by adopting the plaintiff proposed discovery and trial preparation schedule that under his direction these cases could be ready to go to trial in December 1972. But standing ultimately in the way of that resolution, a single trial in December 1972 on the equitable issues are these defendants. As I pointed that yesterday, 34 of the governmental cases were brought in Districts other than Central District of California, 23 separate districts as a matter of fact. So to achieve a single trial at the District Court Level there would have to be transfers to Los Angeles of all 34 cases under 28 USC Section 1404. And the defendants have announced time and again that they would resist such to transfers and such a consolidated trial. At page 4 of their supplemental brief which is the cream-colored brief, the next to the last brief they filed in this action. They assert that the joint trial was not feasible, not feasible. And at the proceeding before Judge Real in Los Angeles, a week ago Thursday, the defendants indicated just how vigorously they will resist such a transfer on both substantive and procedural grounds if Judge Real attempts to go ahead with it. I have submitted the transcripts of those proceedings such an the appendix to our brief and I am going to quote for Mr. Cutler, at page 51 of the transcript. I am going a quote a few remarks and if the Court has the transcript and would like to see the entire context of those remarks that Mr. Cutler made, I'll invite your attention to page 51. Mr. Cutler told the court and I quote, "I think we would have to say that any decision at this point in favor of transfer and consolidation is something which we would feel bound to seek review." And then said Mr. Cutler everything would be help up while that was being resolved. Now, Mr. Cutler's thrust has two points. One, very clearly the defendants intend if they can to hold up everything attacking this transfers and the second point is that they will seek with you which means that ultimately this case is going to reach this Court and probably more than once because the defendants have already taken and interlocutory appeal from Judge Real's order denying their motion to dismiss. The interlocutory appeal Your Honors was certified in November 1970. The case was finally argued in the Ninth Circuit on January 1972, it is now subjudicy and certiorari I believe as certain. So I think the defendants have made it clear that they're not going to let this Court escape the burden of this litigation. So the question then is I believe, would the burden imposed by accepting original jurisdiction as we urge this Court to do, especially where the Master can be a Federal District Judge who is totally familiar with the case and was indicated that but for the legal obstacles which the defendants are raising, he would most probably be prepared to go to trial on the equitable claims on December 1972. Is that burden really greater than the burden imposed by the persistent, excuse me, by the persistent threat from the defendants on what can only be characterized as protracted in piecemeal litigation. And beyond the burden that would be imposed on this Court is the burden which would be imposed on the entire Federal Judicial System if the defendants succeed on delaying the trial to a point where the possibility of equitable relief through retrofit is no longer a viable one because of the delays in time and the cars leaving the road at the rate of 8 to 10 million a year as it accelerates as I explained to the Court yesterday. Because of that point, at some point on the future money damages would then be the only sensible recourse of the States and the difficulties and complexities of this case will be every bit as great and perhaps greater than the Multidistrict Panel warned up when it assigned these cases to Judge Real. Now the defendants also will be greatly burden by multiple jury trials and diverse appeals but apparently they are willing to bear this burden in order to avoid paying in this way for their Sherman Act violations. It is to avoid these burdens on the Court on the Federal Judiciary on the 34 States and New York and to obtain an early end to the litigation and to preserve the possibility of retrofit relief at the defendants expense as a viable remedy for the wrong alleged that we urged this Court now to accept the original jurisdiction of this case, appoint Judge Real as your Master and let us proceed the trial in December 1972, that is my argument.
Warren E. Burger: Thank you Mr. Tausend. Mr. Cutler.
Lloyd N. Cutler: Mr. Chief Justice and may it please the Court. The defendants urged that this case is governed by your decision at the last term in Wyandotte and that in one important sense it simpler than Wyandotte. In Wyandotte, you based your decision on two major grounds the availability of another impartial and no less of appropriate forum even though Ohio had not filed suit in that forum and as a cogent reason, a practical wisdom for declining jurisdiction on the light of your other responsibilities the possibility of imminent legislative and administrative relief for the factually and technically complex environmental problem they are involved. In the present case, the Court need not reason on the basis of the hypothetical availability of other no less appropriate forums or on the mere possibility of legislative and administrative relief. In the present cases, the same plaintiffs states and the amici states have already filed essentially the same suits against all the defendants and other more appropriate District Court forums where a pre-trial preparation as Mr. Tausend told you or actively proceeding and more over a comprehensive program on legislative and administrative relief or the even more complex environmental problems here both the Federal and the State level is already an on-going fact. I would like to ask the Court if it would to look at our supplemental memorandum in our position which is the cream-colored memorandum filed on December 23 and if you will turn to the appendix of that memorandum, you will see a compilation of all of these pending District Court cases which have now been consolidated for pre-trial purposes --
William O. Douglas: It says as a matter of the trial strategies from your side, it is impossible to get this trial together in a separate --
Lloyd N. Cutler: I don't think it's correct to say Mr. Justice Douglas that it is impossible, it is our belief number one that the question of whether these cases should be transferred to a single district for trial and then consolidated for trial is a question that can be best evaluated when the pre-trial proceedings are further along the identity of the witnesses and the nature the issues are better known, the question of whether the cases as they present themselves for the different states are essentially different cases in major aspects such as the quality of the air in the given State the impact of the defendants' activities on the quality of the air in that State and the relationships that have going on between the regulatory authorities and the automobile companies in that State.
Speaker: Are you suggesting the old --
Lloyd N. Cutler: No, sir. I am suggesting that is an entirely appropriate question for the District Courts to resolve under the transfer powers and the consolidation powers when the pre-trial proceedings are further along. Moreover, if you would look at the appendix, sir, you will see that these plaintiffs, most of them after they filed the single case before you when the time came as Mr. Tausend mentioned when they decided to file District Court complaints to protect against a fairly remote statute of limitations possibility. They filed those complaints not in one action as they filed before you which they were perfectly free to do. They filed those complaints as you will see on page 42 of appendix A in some 12 different Federal Districts, eight of them as widely separate as Hawaii and Maine as it happens elected to file a single complaint in the Central District of California. But the others for reasons best known to themselves elected to file in separate districts thus creating the transfer problem about which they are now complaining. In fact, they did this after we, in our initial memorandum and opposition to the filing of the complaint here, had said that these courts, original jurisdiction is not necessary if they want to achieve their purpose of the single trial. All they had to do was get together and file a single complaint of the same type in a single District Court which they did not do. Moreover, even though they failed to do it the District Courts among them clearly have the power to transfer these cases under Section 1404 and to consolidate them for trial under Rule 42. Should they conclude, despite the arguments, we may very well make to do contrary after the conclusion of the pre-trial discovery that consolidation and transfer are not in the interest of justice.
William H. Rehnquist: Mr. Cutler aren't the differentiating factors which you mentioned in response to Justice Douglas as questioned, primarily wants to do with remedy rather than liability.
Lloyd N. Cutler: No, they're not Mr. Justice Rehnquist, because liability in a Section 16 action and in a Section 4 action which this plaintiffs have also brought in the District Courts depends first on the proof of an antitrust conspiracy let us say, and second on the impact of that conspiracy on the particular plaintiff. For example, there is an allegation on these complaints that the defendant conspired to delay the installation of one particular retrofit device on vehicles in the State of California for one year. We would intend to show not only that we did not so conspire but that if we had, that particular Act could have had no effect or certainly no tangible impact on the quality of the air or any injury to the State of Hawaii or the State of Maine or any of the other States which were not directly involved in that particular Act. If you will look again at this list of cases at page 42, many of these cases in the District Courts in fact all of those that are brought by States are contained the same allegations that are contained in these cases before you. But in addition to that they are class actions brought on behalf of all the political units in those States and they are also actions for damages and we would submit to you that the District Courts which have those cases before them are far better able to deal with the plaintiffs present request made to the District Court to drop their damage claims and to deal with the question of how the dropping of those claims is to be resolved among the various members of their classes and to how the question of dropping the damage claims in some but not all of the State cases because California has declined to drop its damage claim and has declined to seek this early equity trial how those problems are to be resolved. First, to make sure that the dismissal of this class action complaints below is properly approved by the Court and second, how any jury trial or right to jury trial issues under Beacon Theaters are to be resolved.
Speaker: Those actions you say Mr. Cutler are class actions and that they asked for damages as well as for the injunction?
Lloyd N. Cutler: That is correct, Mr. Justice.
Speaker: And are they also -- the class actions are they also parens patriae action?
Lloyd N. Cutler: All of them plead parens patriae claims including the ones before you.
Speaker: And in our case today as a parens patriae claim but not a class action [Voice Overlap]
Lloyd N. Cutler: It's not a class action before you.
Speaker: And as only for (Inaudible)?
Lloyd N. Cutler: That is correct and remember of course that you have before you only 18 of the States whereas the District Court has before it some 36 States. One of which at least has said specifically it does not intend to drop its damage claim and does not intend to seek this early equity trial therefore raising this set of be Beacon Theaters problems that only the District Court, we believe, can resolve since it has all these cases before it. It has all the classes and it can arrive at the proper resolution of which cases should be tried first. I want to say in that connection in the light of Mr. Tausend's comments first that what he quoted from my remarks below before Judge Real dealt essentially with the question of when transfer and consolidation where right issues for consideration and not with the question of essentially of power in the District Courts to accomplish those two things whenever that might be required. Now --
Byron R. White: It's not -- what do you view of the parens patriae, you see -- you say that's what this is in the story?
Lloyd N. Cutler: I say only Mr. Justice White that these plaintiffs have pleaded their case as a parens patriae claim for the injunctive relief they seek in this Court, whether the parens patriae point is significant and that, I have no idea.
Speaker: Oh what is that parens patriae?
Lloyd N. Cutler: This I take it is the issue you have before you and Hawaii case but their claim is that on behalf of all the citizens of their State they are seeking the injunctive relief which they claim to be necessary to improve the quality of the air in their State --
William O. Douglas: Oh they didn't invent that?
Lloyd N. Cutler: -- for an antitrust violation.
William O. Douglas: They didn't invent that concept, should they?
Lloyd N. Cutler: No, Mr. Justice Douglas.
William O. Douglas: It's very familiar.
Lloyd N. Cutler: I am not making an issue of the fact that they have included the parens patriae claim and I don't know that it is significant to your question of whether that you should accept?
Speaker: Would then we have a case here?
Lloyd N. Cutler: Well, I believed that they are suing as States and as parens patriae. They say they bring in this action in their capacity as parens patriae, etcetera, etcetera, etcetera and as proprietors, state lands, properties and resources.
Speaker: But in any, you don't challenge their standing or their cause of action that you don't say they don't plead the cause of action?
Lloyd N. Cutler: No sir and in fact we do not challenge the jurisdiction of the District Courts in anyway these defendants are suable and virtually any district, they have not contested the suits pending in any State --
Speaker: And you don't contest our jurisdiction?
Lloyd N. Cutler: We of course, we don't contest your jurisdiction sir. The -- not only is the District Court a perfectly appropriate forum and equally appropriate forum field. We submit, Your Honors, that the District Court is a more appropriate forum even though I don't think it's necessary for us for you to reach that level of proof. You have only taken one original antitrust case so far as I know and that is Georgia against Pennsylvania and that case was taken on the express ground as we understand it that the District Courts where incidentally Georgia had not filed. None of the District Courts reason this Court could have in personam jurisdiction over all of the defendants and that is why you took this as an original jurisdiction case saying in the opinion of the Court though in other respects we assumed it namely District Court jurisdiction would be wholly appropriate. And here, all of the handicaps of this Court as a trier of fact, since you cannot listen to the taking of evidence in the first instance, cited in the dissents in the Georgia case overwritten in Georgia only for a reason that is not present here would be before you. This is not, as plaintiffs appear to believe, a simple per se antitrust case and the government never contended when it brought its own suit that it was a per se case. It's a case that involves the complex history of some 20 years of interaction between governmental authorities and the automotive industry as both of them were gradually coming to realize the significant effects of automotive emissions on the general air quality. And the case has a unique quality to it that is going to require extensive proof because of it's the first case to our knowledge that involves the, what economist called the principle of externality, namely the incorporation of a feature in a product such as an automobile which is put their for a social or for public purposes and which the individual purchaser of the vehicle does not perceive as having any utility to himself on his vehicle and will not pay an additional price for if you give him a choice. In fact, in the case of an emission control apart from its cost the purchaser may regard it as a positive detriment because of its adverse effects on fuel equality, on idling, on heating up in traffic and on cold starting and we have filed with the Court since the relief of course that these plaintiffs insist on, its retrofit relief, we filed with you yesterday a recent report submitted to the air quality -- Air Resources Board of California by its staff and February 16. It's only six pages long and I urge you to look at it because it analyzes all of the available retrofit kits that have been submitted to the State of California which does have a mandatory retrofit law and which will require all of its citizens to retrofit when and as the State triggers the law by certifying a particular device something after years of that law being on the books the State has not yet done. Plaintiffs have said to you that the problems that this Court faces with its difficulties as the trier of fact could be resolved by appointing Judge Real as your Special Master. But this really would not resolve the problems you face as a trier of fact. Judge Real sitting as Special Master would -- could only recommend findings of fact to you on which you could would have to make an independent evaluation and he could only recommend to you rulings on issues of law has plaintiffs themselves seem to admit. He could do far less himself and he would involved you much more in interlocutory and other reviews of what he was doing if he said as your Special Master then that he and other District Judges sat as District Judges. They could dispose issues as District Judges which they could not dispose as Special Master. For example, if there were a plea of the statute limitations answered by a claim of fraudulent concealment or motion to dismiss at the end of the plaintiffs' case. Judge Real or another District Judge could decide those and the whole case might be over at that point. Subject only to appellant review and appellant review which might never reach you, and might be resolved in the Court of Appeals and despite what Mr. Tausend has said it's perfectly possible that if these cases are tried in the District Courts they will ultimately be resolved in ways that never make it necessary for this Court, at least to grant certiorari and review any particular aspect of them. Further, if Judge Real were to function not only as the appointee of the Multidistrict Panel in all of these are the cases but also as your Special Master, he might find a conflict of interest in those two responsibilities. You might say, can a master serve two masters? But he is responsible to the Multidistrict Panel for the expeditious conduct of the pre-trial proceedings in those other cases. Supposed we were to say to him at some point that we felt the California case which raises both damage issues still and equitable issues should be tried first because California was the State with which asked the automobile companies in the first instance to appoint a committee and get to work in this area and most of the interaction between the industry and the Government took place initially with the State of California. And if that case were tried first and we would erase that as the case that should be tried first, the Beacon Theaters problems would be resolved. How could Judge Real, sitting both as your Special Master in these cases and as the Multidistrict Panel Judge in the other cases, resolve that problem? He would have to take his orders from you which might to proceed with this case which might be essentially incompatible with his other duties. Furthermore, you had an experience with a Special Master in the only original antitrust case you ever took. Georgia, if you'll recall, came to you itself for urgent equitable relief, that is all you took and you appointed a highly confident Master. Georgia thought probably also it had a simple document case. One that it put into the Master in one day yet it took this very capable Master, Mr. Lloyd Garrison, four years to hear first the defendants proof of the lack of conspiracy and the essential reasonableness of what they have done. And to prepare his report and the report itself was some 700 odd pages alone, there were more than 15 volumes of testimony and a dozen-volume of exhibits which you would have had to review. You were fortunately spared that which might have taken another year because Georgia itself voluntarily dropped its case as mooted by some pending ICC proceeding. So we would say to you, Your Honors, that the District Courts left to themselves, we believe and with whatever appropriate appellate review first the Courts of Appeal when which you have always relied in the past in antitrust cases and which you have been very unhappy to see eliminated from the review of direct appeals by defendants in government antitrust cases. You could rely on them to see that the proceedings were going forward expeditiously. Judge Real, I can assure you sitting as the Multidistrict Panel Judge is applying the lash very vigorously to all us and the defendants in this case far from doing what Mr. Tausend has said have been taking the initiative below in pretrial discovery. We filed our first wave discovery requests something like a month before they were required to be filed. The plaintiffs have not yet filed this. We initiated the taking of depositions of some of our older witnesses. And we have said to Judge Real who incidentally has not yet approved the December trial date and has not yet adopted on any permanent basis the plaintiffs program but wants to see the reaction of these classes in municipalities first. We have said to him that we are prepared to go forward as to accept any target date for the completion of pretrial and to go forward as rapidly as any case involving 20 years of history in this rather abstruse technology in these relationships with various government agency would permit.
Byron R. White: Mr. Cutler, do you say that some of these cases in the District Courts are essentially different from each other?
Lloyd N. Cutler: Some of the State cases we would submit, Mr. Justice White, are sufficiently different from one another so that it might not be expeditious to put them all together in one big single consolidated trial.
Byron R. White: Well if the -- if there was a Special Master appointed -- if we took jurisdiction and appointed a Special Master and he face the -- these same States, would you suggest that he may have to try different States separately?
Lloyd N. Cutler: Yes, Mr. Justice White we would, should you take original jurisdiction and depending on whether the pretrial discovery in proof work out as we believe it would and the sharpening of the issues work out as we believe it would.
William O. Douglas: My understanding of the Federal -- new Federal law is if the Federal standard would apply into cars manufactured after a certain date and that the petition here is talking about cars especially on the road you have, isn't that right?
Lloyd N. Cutler: That is part of the relief he is asking Mr. Justice Douglas but it's the only part on which he is concentrating and urging you to take original jurisdiction of the case.
William O. Douglas: My question is this, as a matter of Federal law that phase of the problem is what do States to work out as they might choose, is it not?
Lloyd N. Cutler: That is correct sir.
William O. Douglas: So you could have 50 different standings for a retrofit?
Lloyd N. Cutler: Pardon?
Speaker: For a retrofit as you would say for what kind of device would be put on the car or ready in use owned by a driver in a State?
Lloyd N. Cutler: One thing in California, and other in Idaho, and other in Washington?
Speaker: That is correct. [Voice Overlap]
William O. Douglas: But we're not dealing with an overall Federal rule. The only Federal Rule is a -- a federal rule that leaves it to the States --
Lloyd N. Cutler: That is correct Mr. Justice Douglas and this was an advertent thing. The Senate and the House when they passed the Clean Air Amendments of 1970 considered imposing a mandatory retrofit requirement and concluded that a retrofit program was not manageable at the Federal level, this is at pages 25 to 32 of our -- of that same memorandum, and should be left to the regions the air quality regions and the States which means essentially the States.
Byron R. White: Well, let's assume we have jurisdiction and then Special Master proceeded. I take it that, that in suit like this Federal Law govern -- that in your submission a suit like this as to determining the existence of an antitrust violation and the remedy Federal law would govern? And would you or are you suggesting that the action of Congress would suggest to the Special Master into this Court that in that although as a Federal Law would govern the remedy that we would borrow state law or state standard?
Lloyd N. Cutler: What would actually happened Mr. Justice White as the plaintiffs have conceded below is that a remedy from this Court would be worthless without the enactment of a statute in each state requiring every car owner to install a retrofit device whether it was paid for by him or furnished at the cost of a billion dollars by us and to maintain that device there after. Now the interesting thing is and all of this state in --
Speaker: Let's assume the question was, what kind of a -- let's assume that it was found that there was an antitrust violation under the federal standards. Now on the remedy, what kind of retrofit device would --?
Lloyd N. Cutler: All you could do --
Speaker: It would be ordered to be installs in California as compared the Illinois?
Lloyd N. Cutler: Assuming you have any power under Section 16 to order the sort of a remedy a retrofit remedy today, all you could do I believe, would be the order the installation of such of the device as the State by legislation or regulation might or might not require.
William O. Douglas: Does the State have some leeway under the Federal Law?
Lloyd N. Cutler: Well, not only does it have leeway, the States disagree very widely despite what they say here about whether there should be retrofit, the State as I started to say moment ago sir, have filed their so called implementation plans with the Environmental Protection Agency as to what they intend to do on air quality.
William O. Douglas: If we --
Lloyd N. Cutler: If we file those with you yesterday not a single State Mr. Justice Douglas of these 34 of plaintiffs and amici has said it intends to adopt a retrofit program. Several of them have said that retrofit is unnecessary or impracticable or would have minimal effect. These various States that are before you today and we filed this paper with you yesterday analyzing this public filings have all said that they do not intend to seek a retrofit program. The only one that has said the contrary is California and California is not seeking an original remedy from you or in early equitable trial. It intends to proceed on its claim for damage.
William O. Douglas: He took the case and we had hearings then a decree, that would not in anyway touch the Environmental Protection Agency, would it?
Lloyd N. Cutler: It would not -- it might Mr. Justice Douglas.
William O. Douglas: In what way?
Lloyd N. Cutler: In this way that the Federal Government decided that the thing if the Federal Government by which in the sense you're a part should concentrate on was emissions from new cars and that the manufacturers face very substantial problems in working out the technology and incurring the cost necessary to meet those standards. If it's a still a very near thing whether we are going to meet this new standards or not but if on top of our obligations to meet standards on new cars, which none of us have yet figured out how to do, this Court or any other court should impose on us a substantial retrofit obligation amounting to some billions of dollars in the production of 50 million units for that purpose it might have a very substantial effect on the EPA Program.
Speaker: Well, I thought part of your argument was the Congress has said in the situation like this state law is to be the governing standard?
Lloyd N. Cutler: Congress has said that the question of whether a car should or should not be retrofitted are cars already on the road cannot be manage at the Federal level and should be left to the state.
Speaker: If we were saying -- if we were saying federal law governs this suit that we must look to state law to see what the federal standard should be and a State that says there is no retrofit law in our State?
Lloyd N. Cutler: There would be no evidence.
Speaker: There would be no remedy if you -- So, either you can have dirtier lawsuits under the Federal Act?
Lloyd N. Cutler: I am not sure I understand that. Are you speaking with respect to old cars?
Speaker: There's no effect on old cars.
Lloyd N. Cutler: Well the State could decide or --
Speaker: There's no effect on Idaho but Idaho could --
Lloyd N. Cutler: But Idaho could also decide that it does not want dirty air quite that emissions from old cars in Idaho are not a problem. That carbon monoxide in Idaho is not a problem, that hydrocarbons in Idaho are not a problem, and that oxides of nitrogen are not a problem and that is not a useful expenditure of resources to cure air pollution.
Speaker: Then Idaho would not be one of these complaining parties in this course?
Lloyd N. Cutler: And yet the very States, as I said, that are here before you and in the District Court demanding this retrofit at defendants' expense have just filed plans with EPA saying none of them saying that the intend of propose a mandatory retrofit program and yet this plaintiffs have conceded below that no remedy any court should grant with work unless the State pass such laws.
William H. Rehnquist: Well, Mr. Cutler might it not have be reasonable on the part of the State to say, we will not impose the Retrofit Program at the expense of the individual car owner but if the automobile committees can be made to pay for it, we would be perfectly willing to support it in that instance?
Lloyd N. Cutler: Perhaps so Mr. Justice Rehnquist. But I think that very question or that posture would bear on the alleged urgency of this remedy and the fact that the remedy may be disappearing unless the States do something about it. California which has the most urgent problem has decided to go ahead and rely on its claim for damages. If the relief were really that urgent other States would do the same and certainly this defendants should be not be deprived of the fullest opportunity to prove (a) that there was no antitrust violation, (b) that if there was one it had no impact on that particular State, and (c) even if it did have an impact, the air quality requirements in that State were not such as to justify this drastic remedy which goes far beyond anything that's ever been called for under Section 16.
Warren E. Burger: Thank you Mr. Cutler. Mr. Tausend, do you have something further?
Fredric C. Tausend: Yes, I do Your Honor. Your Honors, this is not an air pollution case. This is not retrofit case. This is not a nuisance case. It is an antitrust case for equitable relief only and it is true that we have emphasized in urging you to accept the original jurisdiction the widely possibility of seeking as we do now and seeking at the end of the trial retrofit relief for pre-1968 cars as the most adequate remedy if we proved the antitrust wrong.
Speaker: Well, isn't that the only remedy that you are seeking that is in addition of what the government already had?
Fredric C. Tausend: Well --
Byron R. White: Aren't these defendants already entered an injunction?
Fredric C. Tausend: Yes, we are not seeking preventive relief Mr. Justice White. We are not trying to collaterally supplement --
Byron R. White: Well, what do you want in addition to what the Government already has?
Fredric C. Tausend: The other possibility as we hold out are possibility of additional devices on new cars if the technology of speed or an accelerated research program which we're not particularly emphasizing at this times and might raise additional problems but we do want to keep the equitable relief flexible although we think and we're pretty sure that the partly because of what the defendants have said and what technology seems to be producing that the retrofit device making those cars manufactured doing the period of the conspiracy clean cars which they would have been, but for the antitrust conspiracy is the most fitted device. But I want to make clear that we're not asking this Court today to decide that issue. We're asking this Court because we think it would be pre-mature. It came before Judge Real and he said it's pre-mature. And we quoted in our reply brief the Judge Real said, "At the end of the trial when the evidence is in, it is possible that plaintiffs, the States will be able to show facts to this Court sitting equity that will justify the kind of relief they seek."
Speaker: Do you agree that Congress has left the retrofit matter to the States?
Fredric C. Tausend: Well, in legislating Your Honor, yes I do. Congress has said that in respect to the pre-1968 cars, the standards of the emissions are up to the States but I do not think that, that says anything about what would happen if antitrust violation --
Byron R. White: Alright. Let's say that we took jurisdiction and found an antitrust violation and then would we be free in case of what Congress has said the fashion here, our own standards with respect to the used car, the cars on the road?
Fredric C. Tausend: I certainly think so, Your Honor. Congress certainly has not given any indication to abandon the field in any of this.
Byron R. White: What Congress have said that as far as the past is concerned that the federal law should at the very least look to the States --
Fredric C. Tausend: Well Con --
Byron R. White: -- for standards?
Fredric C. Tausend: I think Yes Mr. Justice White Congress made a political a compromise. They passed the law and they said we're on the facts that we have before us. We're going to set emission standards based on things done to new cars.
Byron R. White: Did you address yourself to this matter in your brief?
Fredric C. Tausend: Well, we addressed ourselves yes in our reply brief and particularly in our --
Byron R. White: Now, we ask you about what were the governing law would be in this case.
Fredric C. Tausend: Well, on that point we address --
Byron R. White: And you say it's federal law but in the process of fashioning federal law, do we have to look to the state law borrow state law in light of what Congress has said?
Fredric C. Tausend: No, because I think very different considerations are involved except possibly for this. I think what -- you not only have federal law versus state law here Mr. Justice White, I think you also have something that isn't really a pre-emption argument at all which is the role of a legislative body in regulating the air and the role of a Court of Equity in remedying any antitrust violation. Now it just so happens that the antitrust conspirators, the antitrust defendants effectuated their conspiracy in an area which affected the air. But I -- and so I don't think it's a choice of law or question in that case at all. I think when the equity court comes to render the decree it's going to have to consider the state of the art. It's going to have to consider by that time, Mr. Justice White, it's entirely possible that federal law will govern used cars because Congress has not necessarily indicated an intention to stands still on this and the EPA, the Federal Agency has a real role in directing the States and stimulating the States in respect to the retrofit inspection programs which they have indicated they may start --
Speaker: Is Congress free to specify the standard applicable in original actions?
Fredric C. Tausend: I don't believe so. I believe that the standard applicable on original action is set in Article 3 of the Constitution and derives from the powers of this Court and the only -- the only thing there is that because this Court in original action such as this one not State against State sir, but State against Citizens of another State is concurrent with Federal Court --
Speaker: Well, you are relying on this congressionally set standard in bringing this action namely the Sherman Act?
Fredric C. Tausend: Yes.
Speaker: I suppose you --
Fredric C. Tausend: Of course --
Speaker: If Congress is free to provide the law that would govern original actions on this one?
Fredric C. Tausend: You mean to take away jurisdiction from this Court?
Speaker: I didn't say jurisdiction, I just said the law. I have specified the law.
Fredric C. Tausend: I see. I see not the exercise of the discretion but the law applicable. They have specified the law applicable in specifying the Sherman Act and --
Speaker: I didn't make it to control the remedy.
Fredric C. Tausend: I would have very serious question with a congressional imposition on the powers of a Court of Equity to grant equitable relief. And if I may refer to Guaranty Trust versus York, which is not in our brief, it's 326 U.S. 99. Mr. Justice Frankfurter in that opinion wrote a rather extended dissertation on the powers of equity and where equity powers on the Federal Court came from.
William H. Rehnquist: How about the Norris-LaGuardia Act Mr. Tausend? Certainly that --
Fredric C. Tausend: Yes, I think there are instances where the Court stands could be state and some like that but that haven't happen here Mr. Justice Rehnquist. In fact, that to the contrary all that, that I see that happen is that Congress isn't ready yet and hasn't been ready yet to apply emission standards to used cars. That's really all it's happen. It might be by the time this Court was ready to decide this case and I think that a lot of the reason why Congress hasn't been ready yet to do that is who pays for it. Now, Mr. Cutler mentioned the Court --
Thurgood Marshall: For which could we make the car owner do it?
Fredric C. Tausend: Could this Court make the car owner do it?
Thurgood Marshall: Make him accept it.
Fredric C. Tausend: Well, I think this and --
Thurgood Marshall: The answer is no.
Fredric C. Tausend: You could not make him accept the right of it.
Thurgood Marshall: Right?
Fredric C. Tausend: Yes I think that is right Mr. Justice Marshall. Except for this, I think that the relief, the equitable relief could be conditioned on a state enactment of retrofit law or some other retrofit administrative requirement.
Thurgood Marshall: We could make the State pass the statute?
Fredric C. Tausend: I think. Pardon me sir?
Thurgood Marshall: Can we make the State pass a statute?
Fredric C. Tausend: I think you could get condition relief on it I don't think you could direct the State to pass a statute but I think that Court of equity could and frequently does condition relief --M
Thurgood Marshall: Could we now order or require one of the States is not involved to do so? Obviously no.
Fredric C. Tausend: No. Not one that's not involved. Now, there are I'd like to talk about two things because I think you couldn't get to the States that are not involved because they wouldn't be any antitrust case and they wouldn't be involve in the antitrust decree. But I think you could condition or the Court of Equity could condition the granting of the equitable relief on meeting certain standards and one of the standards would be that the retrofit be put on the car so that the cars can be made clean. Now, I'd like to mention two things in our context. One is Mr. Cutler referred to the cost of equitable relief and how this cost would somehow interfere with the efforts of the automobile companies to go ahead and meet the 75 standards. I think that argument simply has no place here at all. And I would like to put in perspective. The cost of these devices according to these defendants is approximately $20.00 a device. We're talking now today about 50 million used cars. Each year, at least 8 million go off the road so we are talking at most about less than a billion dollars in the light of an antitrust conspiracy that lasted 15 years and in the light of net after tax revenues of General Motors alone in 1971 of over $2 billion. So I am not saying it's a little amount of money that is involved. But it's not the kind of gigantic staggering cost that Mr. Cutler has indicated at the Court would be involved. And secondly, it should be pointed out which is exactly what the defendants want to accomplish that as we go on, each year eight million leave $116 million is depleted from the obligation that these defendants could meet if retrofit is the correct and adequate remedy. And I would like to say that Mr. Cutler did say that when I quoted him, he was talking in 1404 about a pre-mature argument that the -- that it would be premature to transfer at this time. But he went further at that at page 53 of the transcript and he said and I assume he still believes it. There is a major substantive issue as to whether Section 1404 meant that the transferee judge in effect could transfer cases to himself for trial. I would like to say who is in this case. Mr. Cutler has said there are 18 States and California isn't in. Well, California did sign the amicus brief and which it said if the Court agrees to entertain his complaint amici will seek leave to join as plaintiffs here. Now, they haven't changed that position. California is under just a little bit tighter gun than some of the rest of us and it's because their State is getting very close already. They passed the statute in November 1971 requiring retrofit when devices are certified and made mandatory by the Air Resources Board. In February 1972 Report which Mr. Cutler submitted late yesterday to this Court, there is an indication of how that is proceeding devices are just about ready to certification and as we are worried about a trial being postponed long enough so that the equitable relief is no longer viable as cars go off the road, so California is concerned that when the retrofit law goes into effect and when cars start being retrofitted at the expense of California, the equitable remedy may not be adequate now as we point it out in our brief --
Speaker: You mean if under that law does the State, pay the car?
Fredric C. Tausend: No. Under that all the individual citizen of California pays the cost and that's why there concern that they would need and even quicker resolution of this but it would be sometime in 1972 before their equitable relief becomes a less viable remedy to them. Unless this Court, as we indicate in our brief can under Vane versus Barnard and related cases direct that the wrong be repaired at the expense of the defendant and make restitution.
Warren E. Burger: Thank you Mr. Tausend. Thank you, Mr. Cutler. The case is submitted.


Warren E. Burger: We will hear arguments next in 74-125, Alamo Land & Cattle Company against Arizona.
J. Gordon Cook: Mr. Chief Justice and may it please the Court. I am sure you recognize the basic proposition at issue herein which is simply whether or not allowing a lessee of Arizona School Trust Land to share in condemnation proceeds except as to the value of improvement violates the Trust. Now, the Court of Appeals below, when it reversed the District Court, recognized this by saying that provision, referring to the Fifth Amendment, would guarantee to Alamo the right to compensation if they had obtained from Arizona a Property Right superior or equal to the Trust. So, it really turns upon an interpretation of the Trust and turns upon whether or not the Trust did permit a Property Right to be created in the lessee. When you look at the provisions of the Trust, I submit, you find as Justice Rehnquist said in the Lassen case, the Act to Silent. He said there concerning whether or not a special rule created by the Arizona Supreme Court as to condemnation should be allowed on the face of the Trust. The Act’s silence obligates us to examine its provisions. My opponent puts a lot of reliance upon Lassen, but I say that Lassen is not contrary to my position. I would like to point out that what happened in Lassen was the Arizona Supreme Court, for some reason, not following a recognized Arizona Statutory Principles as to condemnation in school trust lands, in Lassen, in footnote 11, there is an explanation of Arizona Condemnation Law. The Arizona Condemnation Law does say that when a right of way is taken as to the actual land taken, I am not now talking about any severed damages to the remainder, that that right of way, the agency must pay for that land. Now, the Arizona Supreme Court as to school trust lands did not follow it. There is no really good reason why it did not follow it because it was against the Arizona Law, and they said as to the school trust lands, well, we think that because there is a benefit to the remainder not taken that is offset by whatever is taken for the right of way. That is not what Arizona Law is, and so I am saying that all Lassen amounts to is that it says that the regular rules of condemnation law are applicable to school trust, and that is all I urge upon you, is application of the regular rules of condemnation law. I refer in part to a quotation from Lassen at 87 Supreme Court, page 584, it referring to the Enabling Act, intended instead that Arizona would use the general powers of sale and lease, given to it by the Act to accumulate funds with which it could support the schools. I submit to you that if we consider those general powers, there is no evidence below that there was a violation of the general powers simply because the State of Arizona in the lease did not insert a condemnation clause. Now, by condemnation clause, I mean the clause that says that upon the taking of the land by condemnation, only the landlord gets the proceeds. Now, this, by Congress --
William H. Rehnquist: Arizona would have been free to adopt such a policy (Voice Overlap) saying that it wanted to, you are just saying it did not have to under the terms of the Enabling Act?
J. Gordon Cook: Precisely. That is exactly the major point of my argument. I would like to first --
Potter Stewart: As policy of including, in each lease, such a provision?
J. Gordon Cook: No, not at the time.
Potter Stewart: Well I say, the policy to which my brother Rehnquist was referring to was a policy, though I understood you answer to his question, that the policy that you agree that Arizona could follow would be to put a provision in its leases, a so called condemnation clause?
J. Gordon Cook: It could.
Potter Stewart: Yes, I just want to be sure I understood your answer to my Brother Rehnquist’s question?
J. Gordon Cook: Yes sir.
Potter Stewart: That is a policy that you and he were talking about?
J. Gordon Cook: Yes sir. I do not think it should be a firm policy. I think it should depend upon the exigencies of the circumstance and where the land is located, how leasable it is.
Potter Stewart: Yes. That you both agree that such a provision could have been put in and could, in the future, be put in to any lease?
J. Gordon Cook: Precisely.
Potter Stewart: By the state?
J. Gordon Cook: Yes sir. I would like to, first to discuss two cases that your Court, when certiorari was granted, handled together, and that is the Fuller case and incidentally, Mr. Fuller is the President of the Alamo Land and Cattle Corporation and these are adjoining properties developed almost at the same time. So here we are again, except you have a different lawyer on behalf of Alamo than the one representing Mr. Fuller. The Fuller case and the Almota case were both taken by your Court at the same time, and both of those recognized general principles that I submit did protect one other than the owner of the land. Now, in Fuller you had the issue of whether or not in determining the value of fee land taken by the Federal Government, whether any increase in value of that land by virtue of its use with Taylor Grazing land was something that could be compensable and in the Almota case, there was some dissent in that case too. The question was whether as to a railroad siding, the jury or trier of fact upon condemnation could consider a non-legally enforced expectancy of renewal which was going on for some number of scores of years and the majority held it could. I do not wish to predicate my case upon whatever arguments you had between you, as to the majority in the dissent in that particular case because here, Alamo’s right was more than a mere expectancy. Here Alamo had a right, which I have shown by two Arizona cases to sue one who would upon renewal of the lease, be awarded the releasing privileges.
Potter Stewart: Except, if there were a reclassification, now what does that mean?
J. Gordon Cook: That is what all the evidence below was about and that simply means that the use is a higher use, and therefore, more rent and upon reclassification, there is also a preferred right of renewal to a lessee. For example, if it is determined the land is suitable for agricultural purposes and there was substantial evidence below it was not, then it would be reclassified to agriculture. If it was then reclassified to commercial purposes. What the trial below all about was how many years would it be until the land would be reclassified for commercial purposes. The evidence being that but for the dam, the nearest paved road was 30 miles away, the land is, you can see on a map that I referred to in the statement of facts, some 70 or 80 miles from the nearest big city, it is truly isolated remote Arizona land and there was no evidence below, I submit to show that but for reclassification, Alamo would not have continued in possession.
Potter Stewart: So they thought that the evidence would allow at least two ten-year renewals before any possibility of reclassification?
J. Gordon Cook: Yes sir and I did not even argue below that upon reclassification, again there was a preferred renewal right of Alamo to continue to lease for commercial purposes which has that (Voice Overlap).
Potter Stewart: (Voice Overlap) function of reclassification?
J. Gordon Cook: The State Land Commissioner.
Potter Stewart: I see.
J. Gordon Cook: He testified and he did not say anything at all to the contrary along this issue.
Potter Stewart: That is what I did not fully understand of the record, who does the reclassifying and when and what triggers it?
J. Gordon Cook: Whenever --
Potter Stewart: That is probably not very relevant to the basic issue in this case, but I was just curious?
J. Gordon Cook: So what I was trying to say, gentlemen, when you consider the two cases that I referred to, the Fuller case and the Almota case, they do recognize that one, not the owner does have Fifth Amendment Rights upon condemnation. I would like to point out in the Fuller case, even though the Taylor Grazing permits were only for periods of one year, it did not say that just because it is only a one-year right, and because that is that the women can preace to the government that for that reason, there could not be any condemnation rights in the lessee. Instead, you examine the Taylor Grazing Act and instead, you said, that Act specifically said that nothing should create any right, title, interest or estate in and to the lands. No such wording exists in the Arizona Enabling Act. It does not say there cannot be created any right, title, interest or estate in the lands. All the provision say is if the land is disposed of by the state, which did not happen here, state did not dispose of the land, it is done so at the appraised value and if there is a contrary disposition, there is a breach of the trust and it becomes null and void. Now, if you look at the Congressional Record and I have examined it and you will find nothing helpful and probably the best part of a Congressional Record and the only part I can find that has any bearing is in the Arizona Supreme Court decision in Lassen which refers to the Senate Record and there what they were talking about was some abuses, where some of this land was given by the Federal government by Enabling Act to the state, and the politicians found ways that would make Watergate seem like kindergarten to get those lands back into their hands for not really fair prices and there was a great converse -- I am sorry, in Appendix to the Senate Report referred to in the Arizona Supreme Court decision of Lassen that went into some of the abuses in the New Mexico Tall Timber Cases. And that is what congress had in mind, when it was saying, if the state sells land, it should be at this fair appraised value. They did not say anything about condemnation. They did not talk about condemnation. Now, let me ask a question of you gentlemen if I can, I have got some time to go, I notice, it is 3 o'clock, do we adjourn now or do I continue?
Warren E. Burger: (Inaudible)
J. Gordon Cook: Yes, I just -- I saw it through the paper.
Warren E. Burger: (Inaudible)
J. Gordon Cook: Thank you.


Warren E. Burger: Set of nine, United States of America against the State of Louisiana. Mr. Solicitor General.
Erwin N. Griswold: Mr. Chief Justice and may it please the Court. This is a motion in the pending case of United States against Louisiana. The motion seeks the release of certain funds, which had been impounded under an agreement entered into between the United States and Louisiana in 1956. The underlying issue here has been squarely decided by the Court at least three times over a period of 21 years. In a sense, the controversy begins nearly 25 years ago with the filing of the suit by the United States against California which was decided in 332 US 19 in an opinion by Mr. Justice Black. This Court there held that California had no ownership right in the land under the seas beyond low water mark. Although the decision was applicable to California only, it was based on reasoning which was equally relevant to all other states boarding on either of the oceans. And thereafter the United States brought a suit against Louisiana which was decided in 1950, 21 years ago in 339 US and opinion by Mr. Justice Douglas. In that case the Court held that the United States was entitled to a decree adjudging and declaring its paramount rights in the land under the Gulf of Mexico, beyond the low water mark on the coast of Louisiana. And later in that year, this Court entered a decree to this effect and this is in 340 US at page 899 and the decree reads “The United States is now and has been at all times pertinent hereto possessed a paramount rights in and hold dominion and power over the lands, minnows and other things under lying the Gulf of Mexico, lying seaward of the ordinary low water mark on the coast of Louisiana and outside of the inland waters. And that is the first time when this Court decided the underlying issue. That decree has become as final as any decree of this Court can be. There are always equitable doctrines like bills of review and cases can be overruled, but the decree is a decree and is outstanding. In 1953, Congress passed the Submerged Lands Act. This was a reaction, a reappraisal of this Court's decision in the California and Louisiana case and by this statute Congress could claim to all the sea bound states, the land under the sea adjacent to the states for three miles from the coastline. It also provided that the states might have more than three miles up to nine miles where this had been recognized by legislation prior to this Court's decisions. In 1956, oil leasing had become active in the Gulf of Mexico, and there were controversies between the United States and Louisiana, and on June 11, 1956 this Court entered a decree enjoining Louisiana and the United States from leasing or beginning the drilling of new wells in the disputed tidelands area, pending further order of this Court unless by agreement of the parties hereto. This was the background of the agreement entered into later in 1956, the full text of which it is set out as appendix A to the motion of the United States on page 29 of that motion and the funds involved here have been impounded pursuant to that decree. Now as I have indicated, the Submerged Land Act indicated the possibility that Gulf States might have nine miles rather than three miles and the United States filed a bill in equity against all five of the gulf states which I believe is the suit, which is now still pending here, and this was decided by the Court in 1960, United States against Louisiana. The Court determined that Texas and Florida were entitled to nine miles from their coast lines under the Submerged Land Act, but it determined that and I quote “Louisiana is entitled to submerged land rights to a distance of no greater than three geographical miles from the coastlines wherever those lines may ultimately be shown to be.” And a few months later this Court entered its final decree in that second case of United States against Louisiana and that decree is reported in 364 at US 502 and the irrelevant portion reads, “as against the respective defendant states, the United States is entitled to all the lands, minerals and other natural resources underlying the Gulf of Mexico more than three geographic miles seaward from the coastlines of Louisiana, Mississippi and Alabama and that is the second time that this Court decided the issue which underlies the motion here. Following that decision in 1965 on motion of the United States, the Court entered a supplemental decree providing for the distribution of some of the funds which have been impounded under the agreement entered into between Louisiana and the United States in 1956 and this supplemental decree is recorded in 382 US page 288. I am advised that under it, about a $191 million was distributed to the United States and somewhat over 34 million dollars were distributed to Louisiana and that decree I believe is a clear precedent for the present motion. I have here a map too small I am afraid to be seen from the bench and I will hand to the clerk and ask that if he pass to the members of the Court. It is a map which was used and connection with the argument three years ago which led to the third decision in this case. On it you will find a green area at the bottom and that is the area which was covered by the order in 388 -- in 382 US. Just to the North of it, you see a very faint line, that is the so-called coast guard line that Louisiana was claiming, and the green area is three miles outside the coastguard line. Close to the shoreline, you see a pink area and a red area. The pink area is the area of claimed by Louisiana. The red area is areas awarded to Louisiana by decision of this Court involving questions relating to what are inland waters and how and where straight lines should be drawn across indentations and that leaves between the pink area and the green area a gray area which is essentially the area which is involved here. I think that this will help the Court to see what is involved here and I will ask the clerk to make it available. In 1969, the Court decided the third stage of this controversy, it is known as the Louisiana Boundary case in 394 US. In this decision, the Court rejected the principal contention of Louisiana, which was that its coastline was to be determined by the so-called coast guard line. The Court also decided a number of other technical questions relating to the coastline and referred the case to Mr. Walter P Armstrong Jr as special master for the purpose of resolving a relevantly small number of further issues, relating to the location of the coastline from which the three miles granted to the state by the Submerged Land Act is measured. In connection with the hearings before the special master, in response to interrogatories, the State of Louisiana has conceded that it has no claim to the land specified in our proposed supplemental decree. This is stated in our proposed decree and in a highly technical language of geographers, but that designation is what Louisiana has conceded that it has no claim to that land, that is that it has no claim, which it can make consistent with this Court's opinion of March 3, 1969, which is the third time that the Court has decided the underlying issue here.
William J. Brennan, Jr.: May I ask Mr. Solicitor General, what's the state is in the hearing before Mr. Armstong?
Erwin N. Griswold: As I understand it, the record is closed or nearly closed and there will be then arguments and decision. I think a decision is expected sometime in the next, that is a report of the master to this Court, is expected sometime in the 1972 term of the Court. And Louisiana has conceded in those proceedings that with respect to the territory covered by our motion, it has no claim which it can make consistent with the Court's several decisions which have been entered in this case. As we understand the situation, the only substantial objection that Louisiana raises to the present motion is that the earlier decisions were wrong and should now be reconsidered and reversed. This of course is contrary to the decisions which the Court has rendered. It is contrary to the principals of law of the case and res judicata and should not resubmit by appropriate action which is fully consistent with the decisions which the Court has rendered and which should be held binding on the State of Louisiana.
William O. Douglas: What is the source of the --
Erwin N. Griswold: The source of the funds is entirely royalty.
William O. Douglas: That is not my question. What is the source of the offer at the tome, ultimate claim shown on the map, the blue line.
Erwin N. Griswold: That is not an issue here Mr. Justice. That line is not the exact line for which is covered by this. That is the line, which was used in the 1968 argument to indicate the claim of Louisiana.
William O. Douglas: We can disregard that now.
Erwin N. Griswold: You can disregard that now. The map is simply to illustrate the general area which is covered. I think the South line of the map, three miles beyond the coast guard line is precise. The North line of the map involves some areas, which are still in dispute before the special master, but the motion covers only land which Louisiana has conceded before the special master that it has no claim to, consistent with this Court's prior decisions. At the present time, I am advised that --
William J. Brennan, Jr.: So I gather Mr. Solicitor General, if the government prevails, this does not exhaust that fund, does it?
Erwin N. Griswold: No Mr. Judge, I was just about to state that. At the present time, I am advised that about 1 billion, seven hundred million dollars are held in the treasury of the United States pursuant to the contract of 1956. I am further advised that the amount covered by the present motion is something over 1 billion dollars and this could be released to the United States if the present motion is granted as was done when the first supplemental decree was entered in 1965. This would leave a balance of about 700 million dollars still held in suspense under the 1956 agreement, awaiting the ultimate decision of this Court after the special master has made his report here. I might find out that the agreement calls for some of the impounded funds to be impounded by Louisiana that is with respect to the northern most zones and I am not informed as to what amount there may be there. This relates only to amounts now held in the treasury of the United States and relates primarily to the disputed zones, which was zones two and three under the contract of 1956.
William J. Brennan, Jr.: And I gather 34 billion that you told us earlier had heretofore been turned over to Louisiana at the time the United States got a 190 million, are also out of the funds in the treasury of the United States?
Erwin N. Griswold: Those came from the funds in the treasury of United States. The 190 million to the United States related, I understand to the green area in the map. Since it appears to be, clear that under the decisions of this Court, the amount covered by the present motion is due to the United States without any dispute from the Louisiana if the decisions of this Court are to be followed. We submit that the Court should enter the supplemental decree requested and make these funds available for the general purposes of the United States. Where the purpose of keeping funds in escrow has seized, the amount involved here is too great to be left in limbo.
Potter Stewart: Is there any argument Mr. Solicitor General about the form of the decree?
Erwin N. Griswold: I understand there is not Mr. Justice. There is some reference in their briefs to problems, which might arise with split leases, that is leases part in and part out, but we have expressly waived that in our motion. The motion expressly provides that with respect to any split lease, the payment should not be made. There is no purpose to be served by continuing the impounding of the funds held in the treasury. The only valid equitable claim to them is in the United States and they should be released to the United States in accordance with our motion and in accordance with the provisions of the contract of 1956.
Warren E. Burger: Thank you, Mr. Solicitor General. Mr. Sachse?
Victor A. Sachse: Mr. Chief Justice and may it please the Court. In 1947, this Court held that the United States had paramount rights to the waters of California. The United States government claimed dominion, claimed ownership. This Court refused a decree declaring ownership, but held that California had no title. In 1950 before the Congress could act, Louisiana and Texas were before this Court and at that time, this Court held that the California decision was binding. The problem was not reviewed again. It was simply a matter of following stare decisis, but the Court through Justice Douglas, used these words. That Louisiana had no better claim to the waters of its coast than had the original 13 states or California and having decided that California had no claim because the original 13 states had no claim so Louisiana had none. I will come back to that in a moment in connection with the present litigation going on between the United States and the Atlantic coast states.
Warren E. Burger: Mr. Sachse, I should advise you since you probably have not had a chance to see the order list this morning that the motion of the State of Louisiana under Rule 60 (b) Federal Civil Rules has been denied by the Court. Mr. Justice Marshall of course taking no part in that as he is not taking part this morning.
Victor A. Sachse: Even so sir I believe that the reservoir equity which is in this Court and the fact that no final decree has been rendered in this case must mean that the matter is adjudged finally or there would not be this motion for a decree I think. At any rate, if I may briefly proceed, I would like to say to Your Honors that at this moment, this money is in the possession of the United States. At this motion -- moment, it may be used and doubtless is being used by the United States not just pursuant to the agreement of 1956, but more precisely according to Section 7 of the Outer Continental Shelf Lands Act and no interest is being paid by the United States to anyone in anyway on this money.
Warren E. Burger: To whom --
Victor A. Sachse: Sir?
Warren E. Burger: To whom could that interest be appropriately be paid?
Victor A. Sachse: No one, no one. The point then Mr. Chief Justice is when the Solicitor General says this is too much money not to be used, the answer is that it is being used by the United States and we have the letter of the Chief of Staff of the joint committee on internal revenue taxation dated yesterday, making very clear that what I am saying is correct. So the United States is suffering nothing by allowing this money to remain “impounded in treasury of the United States.” May I ask the clerk to make this letter available to you sir. If however, if however this Court allows these funds to be again I “released” because this is only a change of nomenclature and not a change of fact, but if this Court allows these funds to be released and if afterwards this Court decides that all states of the union are to be treated alike and that the Atlantic coast states did indeed have territory into the sea and that the California decision was incorrect, then it would follow that the decision later applied to Louisiana is incorrect and this Court would surely wish to do justice. Indeed Justice Douglas, as far back as when the State of Rhode island taught of proceeding against Louisiana, warned the Court or admonished all of us that the composition of the Court had changed since the California decision, that a majority of the Court might well wish to review the matter, I well conclude that the minority was correct at that time and that it should not be dealt with lightly. So apparently, to us at least, this Court is going to reconsider the matter because when the United States filed a motion against the States of Maine and New Hampshire, Massachusetts, Rhode Island, New York, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia and Florida saying precisely what Mr. Griswold has said here, that is that this matter had been decided in the California case and that no state could have more than three miles into the Atlantic Ocean even under the Submerged Land Act. Those states filed in opposition to the motion of the United States and when this motion was considered by Your Honors instead of granting the motion of the United States which you might well have done and said that this is stare decisis and the matter is closed, you instead appointed Judge Marris of Philadelphia as a special master to receive evidence on the very point. Louisiana had asked and the record shows and our memorandum refers to it, in the early days of this litigation as far back as 1956, to take testimony on the meaning of the colonies and of Louisiana and of La Salle and of France in that declarations with respect to the literal states of the union as to whether there was an area into the seas that belonged to them naturally. The Court denied that motion, but the same thing is now occurring, Your Honors, before three special masters appointed by this Court. Number one, in our own case, the very case that is before Your Honors now, you said through Justice Stewart that in the matter of determining the historic waters of Louisiana, we said several things, you said that obviously the Louisiana coast was such a one and should have the benefit of straight base lines but that was up to the President and the Congress, but you said that although that government could adjure straight base lines to the prejudice of Louisiana, it could not adjure historic waters to the prejudice of Louisiana and the words of the Court are beautiful words. They are that in this phase of the case, Louisiana shall act as if it represented the nation and the Attorney General of the United States shall act as if he represents an opposing foreign power and the reason is so clear because the issue is now, whether the United States will cast away, will give away areas that no other nation in the world claims and solely for the purpose of winning these submerged mineral resources which in any event will be for the benefit of the United States. Whether we consider it a benefit of the United States federal government or the benefit of the United States through state governments, no one gets these resources, but we Americans. But it is wrong to give away territory of the United States to a composite and this Court through Justice Stewart said that in this phase of the case, we act as if we represent the national interest. Now we have not conceded, we have not conceded that these areas belong to the United States. We took the greatest of pains to prevent making any such concession, but to do Mr. Griswold justice, we did say it substantially as he has recited to the Court. What we said and I know you rules do not favor reading, but this will be short. Louisiana has objected to answering broadly phrased interrogatories submitted by the United States, which relate to matters not pertinent to the issues that are before the special master. You referred about eight or nine specific issues to this special master, thereafter the case to be returned to this Court, and you retained jurisdiction to dispose these and we said we should not get involved in a diversionary matter. Our sole intention should be given to resolving the matters before the special master. You also by referring it to a special master opened the doors to Louisiana for the first time to really produce evidence and we are doing. Let me give you some of the evidence that we are producing. First of all, we were able to get over serious objection of the government, a letter from Mr. Lee Rankin in 1960 when he was the Solicitor General and when he was referring to concessions, concessions in the term of agreements really, we had argued that the adjacent islands to Louisiana and the reference to the adjacent islands meant that we were to have a territory out to the islands and right at this spot, Mr. Rankins said we concede that these areas belong to Louisiana as in the orders not for the reason Mr. Sachse has argued, but for the reason that these islands are set as to the shelter to the coast, and therefore the areas within them are inland waters. Then the state department wanted him to retain and the correspondence shows that he refused to retain, that is one item of evidence going to the special master. Another item of evidence, which we had no knowledge of in the 1960 case, but which we now know of, is an exchange of correspondence between Mr. Bogs, the historian of the state department and Mr. Valance the legal officer of the state department in which they explicitly say that Spain claimed six miles into the Gulf of Mexico, originally Spain had claimed the gulf of Mexico, but at the critical time, that is in 1760, Spain was claiming six miles into the gulf of Mexico. We did not know this. We did not have access to these records until the present matter was referred to the special master. This was not in published documents, this correspondence. This is what we have obtained. There are other matters now being reviewed in camera by Mr. Armstrong, matters that the government has declined to make available to us and we do not know what they will show, or how much seaward they will extend out boundaries, but they are being examined now by Mr. Armstrong, a special master in camera and we say it is unjust in the extreme to quote “release” this money so that when Louisiana wins it will win a parte victory because we would then have to go to the Congress for an appropriation to give us this money, which is not the situation now. As long as the government uses the money, without interest, but under the Outer Continental Shelf Lands Act and the agreement of 1956, it uses it as fully as if its title was established to it, but if we win as we hope to do, I believe we shall, then we could get it without an Act of Congress, not otherwise. Now this is the justice, this is the equity of the case; this is the balancing that this Court provided. You wrote rule 60 and before rule 60 was ever written, this Court said and we cite the cases in our brief, that justice could always be done by a Court, which had jurisdiction of the case as you have. If you were a district court of the United States, your directions to district courts would enable that district court to do justice in this matter because we are here under your original jurisdiction. You have said that rule 9 of your rules that you will apply as far as possible the rules of the district court, the rules of civil procedures and we say that you have retained jurisdiction in this case and this money should remain here until the matter is closed. I come back now to the basic problem of the Atlantic coast states. Remember, if this Court in 1947 had said that the 13 original colonies had territory into the sea as they came into the union, this Court would have said that equal footing clause would give California a right into the sea. Necessarily so because you said that the absence of the right of the 13 colonies meant that the equal footing clause prevented California from having such a right. When we were before the Court and I have been in other cases for Louisiana, in 1950 you simply said, Louisiana has no better claim than the 13 original states. Judge Marris in Philadelphia last week was receiving testimony from men of high renown in our country from Professor Howard from Harvard, from Professor Kirk Patrick of Brown, from Mr. Joesph who for nine years served on the Court of International Justice at Hague and they have testified so far without contradiction though the opportunity of the Solicitor General to contradict them has not yet arisen as letting the states finish their case before the government puts on its case, but so far, they are making it perfectly clear by expert testimony which is justified by reason of a difficulty of finding the sources for opinions in this matter. That after time the Unites States who is established as a separate nation, it was recognized by England and by the colonies and by international law generally that where recession of a territory changed and act of conveyance said certain land and islands within a certain distance of the coast, it meant that these islands, that distance marked a territorial periphery and that indeed the treaty with the United States and England in 1783 referring to islands within 20 leagues of the coast meant that American territory on the Atlantic ocean which was the only place we had any went that far. Now we dropped back somewhat. We have dropped back. Finally we are claiming three miles generally but not for some purposes for fishing for other things we claim greater distances, we recognize that there, we being United States recognize that there is no international line in any distance that anyone will recognize. We know that Russia for example claims 12 miles at least. We know that our limiting our claims to three miles is not going to make Russia limit her claims to three miles. We know that there is any one rule so the important thing is to determine what was the understanding of statesman and congressmen or maybe the one time that covers them both at the time of the formation of our country and fairly according to the testimony of Mr. Joseph, it is that with this reference to islands within so many leagues of coast meant that territory goes that far. If, if and when that case reaches you, you decide that that is the correct view. This was not view the Court accepted so far, but if the Court then accepts that view and decides that the Atlantic coast states did indeed have waters into the sea, that therefore they do now have waters into the sea. Will you not want to say the same thing to Louisiana? The sole claim for France, the seas and the ports and the bays and the lands in 1682 as precisely and as explicitly as George III or any other English king ever provided in any pattern or any conveyance to any of the Atlantic states and if you say as I hope you will and as the Atlantic coast states hope you will, that they are right, I have no right or wish to argue for them and I do not. But if you then say that that is the correct rule of law with respect to our great nation and the states which form it and that when this federal government acts in international affairs, as it and not the states can do so then it acts for the benefit and not to the decrement of the states then I think you will want to say as Justice Douglas said in an earlier case in a dissent in the 1960 case that certainly, if Texas is recognized as three leagues into the sea so should Louisiana be recognized and now I want to say one more thing, I believe I have a few minutes left. Under the Submerged Land Act, there are two criterion. One, what did you have when you came into the union? Two, what has Congress recognized since? And the reason for those two criterion is that none of the states of our great union had an explicit water boundary as it came into the union. So, if we view Louisiana as a French colony, which it was at the time of the purchase in 1803, which it was at the time of discovery until 1763 then there would be a historic claim to three leagues which we believe this Court meant to preserve our historic claims until this case is finally litigated. If you consider that we were a Spanish colony because we were a Spanish colony from 1763 to 1803, the French and Indian war until Napoleon was triumphant then you would recognize as a state department has recognized the Spanish claim of six miles. Then you would say, I would hope, that considering what has happened after Louisiana came into the Union recognition, I hope you would say that the treaty of 1819, the treaty of amity recognized that the Spanish boundary was the mountain boundary, the boundary separating the two, that this boundary went into the sea. Now we failed in 1860 to show how far into the sea it went but certain of the evidence now before Mr. Armstrong that will be before all of the special masters before the matter is closed, will convince anyone that at least it went the Spanish six miles if not the French three leagues into the sea and we say to you we know that your decisions to this point are against us. We hope that your refusal of the judgment to the United States against the Atlantic coast states means that you will reconsider the matter for them and if you consider the matter for them, then the basis of this whole situation may well be changed. We ask you please to preserve the status quo, to preserve the duress until you are ready to make your decision with all of the evidence before you.
Potter Stewart: I am not sure Mr. Sachse that I understand why this so called newly discovered evidence is before Mr. Armstrong. He was a special master appointed to do a very difficult and important task I am sure time consuming and detailed job but non in a variety of jobs without a lot varieties specific matters in a Court of our opinion in volume 324 of the United States, but he certainly was commissioned or authorized to advise us whether or not our basic decisions in this area have been wrong?
Victor A. Sachse: Right and we have been asking to. As a matter of fact in our answer to the request for admissions we explicitly said Mr. Justice Stewart precisely what you are saying now. We said we answered these interrogatories and these requests for admissions within the limit of the matters referred to him by the Court which gives Mr. Griswold the right to say that we are saying this is the most that we can claim under the --
Potter Stewart: Under the record.
Victor A. Sachse: Under the record, but we said the Supreme Court has retained jurisdiction, the Supreme Court is entertaining motions concerning the Atlantic coast states. We propose to bring this up again, we reserve our rights to do so and we are not empowered to concede anything, to give away any Louisiana territory and we do not give away any Louisiana territory. Mr. Armstrong is receiving the evidence we give and that the government has very few objections to evidence you have been sustained. How he will rule we do not know and I do not propose to stand here and say how he will rule. How Judge Marris will rule.
Potter Stewart: What have you asked Mr. Armstrong -- how have you asked Mr. Armstrong to rule with respect to this documentary material which you say he is now considering in camera?
Victor A. Sachse: What, we do not know what --
Potter Stewart: And what issue, what issue, what is he considering?
Victor A. Sachse: What we hope we will develop is the thing that you reserve to us, I say you because you speak for the Court. Reserved us in a decision, that is to prove that in effect if we could that the United States had in effect drawn straight base lines that the United States had in effect recognized the waters we claim as internal waters and the first extend of them begins the line from which we measure the three miles or three leagues. So, if we are at our six, whatever the measurement may be, but we have to get to the base line of measurement and you also said that he could respect our historic water within bays and for example Sir, and this is the most important thing if we prove that east bay is historic, then our line of three miles or whatever the measure will be, will be from the line closing the bay and closing all of the bay. We are confronted with the most amazing thing about these bays. You who are on the Court now and were on the Court in 1960 remember the concession and you who were on the Court in 1969 discussed that concession and you know that the government withdrew its concession as to Kayou bay, but you gave us a right to prove if we can factually the Kayou bay is nevertheless internal waters. Well it would amaze you to see the lines that the federal government would draw for Kayou bay shaped like my hand as to what are internal waters and what are international waters. You would have a little scar going in and out of international waters within this inland bay. You would have the strangest situation where Russia, Mexico, Japan, anyone could operate in international waters in Kayou bay, but they have to be careful because going from the island to the land from the land to the island, they would have twice to cross, twice to cross inland waters. It would be as if Maryland and Virginia had a sliver of international waters running through Chesapeake bay. Now we hope to knock this out and we hope to knock it out by geography, by history, by the actions of the government. We do now know now what is in camera. If we could see it we might have many more things to say to this Court and we ask you to preserve the race until the facts can be determined.
Warren E. Burger: Thank you Mr. Sachse. Do you have anything further Mr. Solicitor General?
Erwin N. Griswold: No.
Warren E. Burger: Thank you gentlemen. The case is submitted.