John G. Roberts, Jr.: We'll hear argument next in Case 07-1437, Carlsbad Technology v. HIF Bio, Inc.. Mr. Rhodes.
Glenn W. Rhodes: Mr. Chief Justice, and may it please the Court: The single issue presented in this case is whether the bar to review under 1447(d) is applicable to a district court's discretionary decision to decline the exercise of supplemental jurisdiction. In this case, after the district court dismissed Respondents' Federal RICO claim, the district court remanded the remaining State law claims under 1367(c). That was not a remand based upon a lack of subject matter jurisdiction because jurisdiction was specifically conferred upon the court by 1367(a). It's been the rule for some 30 years that the bar of 1447(d) is limited to the specific grounds set forth in 1447(c). And for reference the statutes are on page 2 and 3 of Petitioner's blue brief. Those two grounds are a remand that's based upon a lack of subject matter jurisdiction and a remand that is based upon any defect other than a lack of subject matter jurisdiction if it's raised by a timely motion for remand filed within 30 days of the notice of removal. The only prong of 1447(c) that's applicable in this case is whether this remand is one that's based upon a lack of subject matter jurisdiction. Now, Congress clearly conferred jurisdiction on the district courts in 1367(a), where the case contains a Federal claim and related State law claims, and a remand based upon a court's discretion to decline to exercise supplemental jurisdiction is not a remand that's based upon the court's lack of subject matter jurisdiction. Jurisdiction either exists or it does not. A district court's power to hear a case and its power to decline the exercise of jurisdiction are part and parcel of the same thing. Absent the power to hear a case, a district court cannot decline to exercise that -- or cannot exercise discretion to decline to exercise that jurisdiction. Now, in the -- this Court's Osborn v. Haley case, it made reference back to Carnegie-Mellon and also United Mine Workers v. Gibbs, that even if only State law claims are remaining in the case after the Federal claim has been resolved, the district court has discretion consistent with Article III to retain jurisdiction over that cause of action. Now, this is inconsistent with the Federal Circuit's analysis in this case, that a remand based upon 1367(c) is a remand based upon a lack of subject matter jurisdiction because in its view an independent basis for that jurisdiction is lacking.
Ruth Bader Ginsburg: Isn't there something odd about saying if it's really fundamental like the presence or absence of subject matter jurisdiction, that is not reviewable? It's not disputed, right? That if the district court says, I lack subject matter jurisdiction over, let's say, the RICO claim, as wrong as that might be, that would not be reviewable, right?
Glenn W. Rhodes: Justice Ginsburg, I agree with that, because if the court does say that I am remanding this because, either rightly or wrongly, I lack subject matter jurisdiction, then that would fall squarely within 1447(c) and (d).
Ruth Bader Ginsburg: Though that could be a very grave error and yet, on a matter of discretion, that that would be reviewable. And I appreciate your statutory argument, but it just seems odd to think that Congress would want to be firm that if the -- if the remand is for lack of subject matter jurisdiction, wrong or right, no review; but if it's a discretionary exercise -- I could keep this, but I choose not to -- that that is reviewable. That doesn't make a whole lot of sense to say the judge who could keep it or remand it, that that action is reviewable, but the action of saying I don't have jurisdiction, when indeed the court did have jurisdiction, is just totally immune from review.
Glenn W. Rhodes: I agree with you, Justice Ginsburg, that that seems rather confusing. I would address my answer in this way: The review ban of 1447(d) arose in the situations where apparently Congress wanted to -- to inhibit the abuse by those seeking only to delay the case by filing a motion for remand. For example, a case that is filed in State court that clearly expresses no Federal question or diversity issue, yet the defendant, in order to delay the case, will then remove it to Federal court. In those situations, Congress wants to prevent those kinds of frivolous removals to Federal court. But here, in our particular case -- and maybe -- let me back up a minute. Maybe we should look at that in a different way, because even though you may have a legitimate basis for removing the case to Federal court and the district court disagrees with you, perhaps the better policy is that those types of remands should not be reviewable, even though sometimes a district court is going to get them wrong. But in this particular case, there was a Federal RICO claim asserted against us in State court, and as a defendant we were not removing that case on some frivolous basis. We were removing it because we were entitled to be in Federal court. It was only after the district judge dismissed the Federal RICO count -- and there was no motion for remand on this case filed by Respondents -- the district court sua sponte decided that he was not going to exercise his power to hear this case because he thought there were legitimate State law claims and he remanded on that basis. Now, that's a discretionary remand, and normally we would be arguing that where discretion is exercised by a district court, it should be reviewable for an abuse of discretion.
Ruth Bader Ginsburg: But wouldn't it be -- I mean, here the district judge said: I got rid of the RICO claim; all that's left are State law claims, and there's no Federal interest in this case anymore. They're all State law claims, they belong in State court, good-bye. I could keep it, I choose not to, because it isn't a sound use of the resources of the Federal court. Now, even if you're right that this is a discretionary decision, so you can't say no jurisdiction because the discretion implies that there is power, isn't it 99 cases out of 100 that the court of appeals, assuming reviewability, will say, we should defer to the district judges on questions of this nature, the district judge's decision that this isn't worth the time of the Federal court?
Glenn W. Rhodes: I'm not sure about the number of -- percentage of cases that -- that there is going to be a decision by the appellate court to say we shouldn't interfere in that, Justice Ginsburg.
Ruth Bader Ginsburg: But wouldn't you -- as a practical judgment, the Federal claim is gone, there is pendent jurisdiction -- or it's now supplemental jurisdiction -- over the State claim, but the district court is told by Congress: It's your call; it's a matter of discretion. And the judge gives one of the reasons that's enumerated, that reason being that the State claims are overwhelming in this case, the RICO claim is dismissed, thinking it was worthless, so it's a State case. Why would a court of appeals overturn such a judgment?
Glenn W. Rhodes: I think, Justice Ginsburg, I can give you an answer to that because there is a recent case that's in our brief, the Brookshire case from the Fifth Circuit, where the district court exercised jurisdiction over Federal and supplemental claims, and did that for quite a while and ruled on a number of dispositive motions; and then basically on the eve of trial, after resolving the Federal claim, remanded it back to State court. The Fifth Circuit, because it had the ability to review that, under the statutory construction, was able to review that on the basis of an abuse of discretion and said that the district court had definitely abused its discretion. After retaining jurisdiction for that length of time and then returning it to State court, that was a waste of judicial resources.
Ruth Bader Ginsburg: But that -- because you'd would have to retread the same ground in the State court that had already been covered in the Federal court, but that's not the kind of case that was presented here. I know the case has lingered for a long time, but there was no processing of those State law claims. The judge concentrated on RICO, threw it out, and said, the rest of the claims I'm not interested in. So it's not a case like the Fifth Circuit where there was a large investment of Federal court energy and time, and sending it back would mean going over once again what had already transpired in the Federal court.
Glenn W. Rhodes: That is true. This case is different because what the -- what the district court had labeled as legitimate State law claims as to, for example, inventorship, we argued are within the exclusive jurisdiction of the Federal court, and that is why we appealed to the Federal Circuit in order to have that issue resolved. Here, if we went back to State court, we would be in the position of having to argue to the State court that the State court lacked jurisdiction to hear that claim because it was something that was within the exclusive jurisdiction of the Federal court. It seems that in this particular situation it would be better to have the Federal Circuit to pass upon the exclusivity of the inventorship issue under the patent laws rather than have to go back to State court and work back up through the State court system to have that resolved.
Ruth Bader Ginsburg: Could you explain why that is a Federal question? It's a dispute over the ownership of this invention, right? So it's not a question of the validity of a patent or infringement of a patent? It's just the invention is like any res, and two parties are disputing about ownership. Why is -- why does that become a Federal case?
Glenn W. Rhodes: It became a Federal question because in our view it arose under the patent laws because when they filed their complaint, even though they couched it in terms of purely State law claims, they did allege that we had falsely claimed to be the inventors; and the basis for that claim that we falsely claimed to be the inventors was the oath and declaration that was filed in connection with our patent applications at the U.S. Patent and Trademark Office. So what they were raising was an issue with respect to our ability to claim to be the inventors of what we claimed in our U.S. patent applications. Therefore, since that falls squarely under our entitlement to -- to inventorship, of what we claim to be the inventors, under Article I, section 8, it seemed to us that that clearly fell within the exclusive jurisdiction of the Federal court.
John Paul Stevens: May I just ask one sort of a preliminary question? If we just applied the plain language of 1447(d), then this case was properly remanded, and it was -- the remand order is not subject to review. Is that correct?
Glenn W. Rhodes: Yes. If we just read 1447(d) on its face, that's--
John Paul Stevens: What really prevents us--
Glenn W. Rhodes: --seems to be what it says.
John Paul Stevens: --from reaching that decision in this case? Because actually it's an open question because you are both arguing about it here and you certainly disagree. Why couldn't we just simply say, for this particular category of remand orders, we'll just apply the plain language of 1447(d)?
Glenn W. Rhodes: That would be going against the rule that was set out in Thermtron, that 1447(d) was limited to only the specified grounds of 1447(c), which are lack of--
John Paul Stevens: I understand. It would be a modification of the dicta in Thermtron, but why wouldn't that be a simple solution to this case?
Glenn W. Rhodes: --I'm not sure that would be a simple solution to this case, Justice Stevens, and the reason for that is that if we -- if the Court decides to do that, then we return to those areas where total chaos could really break out, and the reason for that is that we would be in a situation where district courts can -- can dress up in language that is lack of subject matter jurisdiction and remand cases, knowing that there is not going to be any review.
John Paul Stevens: No, no. That wouldn't -- that wouldn't avoid the plain language of the statute. Pretextual district court orders wouldn't avoid the plain language of the statute.
Ruth Bader Ginsburg: But the--
John G. Roberts, Jr.: There'd be no need to dress up anything. I mean, that's Justice Stevens's point. You wouldn't have to dress up anything; if you send it back, it's not reviewable.
Glenn W. Rhodes: If we were to read 1447(d), just plainly on its face without--
Ruth Bader Ginsburg: --How could we do that in light of Thermtron? Thermtron went against the clear text of the statute that says remands are not reviewable, period; and in Thermtron the Court said, yes, they are sometimes, if we think it's so outrageous for a district judge to say: Yes, I've got jurisdiction over this case, but my docket is so crowded, and this is a -- this is a small-change case; it belongs in State court. The Court, I think, was outraged by a district court thinking that it could dump a case simply because it was too busy with more important things. That was -- that was the setting of Thermtron, and to reach the result that the Court reached, the Court had to go against the language of the statute which -- which read in absolute terms. But anyway, the Court did that, and then they gave a rationale for what the new test was going to be. It was no longer going to be remands are no longer -- remands are not reviewable; it's going to be -- that applies only to the cases where -- what was it, subsections (c) and (d) of 1447? That -- it -- the Court read the statute to say less than it in fact did. That's what Thermtron did.
Glenn W. Rhodes: --That is the exact holding of Thermtron, that they were not going to construe that so woodenly to allow a district court to abdicate its mandatory jurisdiction.
John G. Roberts, Jr.: Well, "woodenly" is a bit much. I mean, they're going to read it not to say what it says. And Thermtron involved the court saying: I'm not going to take this because I'm too busy with other things. I mean, it could be limited to that unusual situation, couldn't it?
Glenn W. Rhodes: Mr. Chief Justice, it could, but--
John G. Roberts, Jr.: I think it would solve the problem Justice Ginsburg pointed out earlier, that this way you don't get to appeal big things like no subject matter jurisdiction, but you do get to appeal picayune things.
Glenn W. Rhodes: --Again, I'm not sure how we would divide those up between big things and picayune things. But I think, to answer your question, we have 30 years of this particular rule under Thermtron being uniformly applied by all the circuit courts of appeal, and they have found this to be a workable statutory interpretation to give them a framework to handle these kinds of cases. And it's not a situation where the circuit courts of appeal have run away from situations like this, where remands have been based upon declining to exercise discretionary power to send it back to State court. They have seemed to want to work within the statutory framework to review those kinds of cases. And I think it would be a large departure to go back and try to modify what all the circuit courts of appeal, except for maybe the Federal Circuit, has adopted as a workable framework in order to solve these kinds of problems.
Ruth Bader Ginsburg: Well, the only -- one clear way to do it would be to overrule Thermtron, but neither party has asked for that. You haven't asked for it, and the other side hasn't asked for it.
Glenn W. Rhodes: That's correct, Justice Ginsburg.
John Paul Stevens: You just have to distinguish Thermtron. You don't have to overrule it. It still applies on its facts. That's a very different problem. When the judge says, I'm too busy to hear this, I'm going to send it back to State court, that's what Thermtron resolved.
Glenn W. Rhodes: And yet--
John Paul Stevens: And this is not -- that's not involved here.
Ruth Bader Ginsburg: But your concern is what was the Court's reasoning, and you could apply the Court's reasoning, its interpretation of 1447.
Antonin Scalia: You have to get rid of Quackenbush, too, don't you?
Glenn W. Rhodes: --Yes, Quackenbush is a--
Antonin Scalia: Throw that overboard, too?
Glenn W. Rhodes: --We would have to overthrow that as well, and the reason for that is because Quackenbush was a remand based upon abstention -- abstention-based remand under Burford, and in that case, this Court found that abstention-based remands did not fall within either prong of 1447(c). So -- in fact, this Court gave that very little attention in Quackenbush before it moved on to the 1291 issue.
John G. Roberts, Jr.: You thought the Respondents asked us to overrule Thermtron. On page 22, you say, "Respondents' implicit request for this Court to overrule Thermtron should be rejected. "
Glenn W. Rhodes: Yes, we did say that, and I'm not sure that they -- they expressly said you should overrule Thermtron, but the strong suggestion in their brief was perhaps you should.
Samuel A. Alito, Jr.: Well, isn't it -- isn't it also the case that Congress has amended the relevant provisions of 1447 since Thermtron and they have not seen fit to overrule or change those provisions?
Glenn W. Rhodes: Given the fact that Congress has twice amended 1447(c) after Thermtron, it seems that they have actually ratified this Court's statutory construction under Thermtron, and have agreed to it--
John G. Roberts, Jr.: So this gets a lot of attention across the street? The reviewability of remand orders gets ---- [Laughter] I mean, in one of those provisions, they said this was only technical amendments, and if they're just doing technical amendments, that doesn't mean they have to look at it and approve the whole thing.
Glenn W. Rhodes: --No, Mr. Chief Justice, if they wanted to get rid of Thermtron they could have done it in a very direct way.
Antonin Scalia: Well, that's right, but what if we want to get rid of it? [Laughter]
Glenn W. Rhodes: I can't suggest what the Court might finally decide other than to say that -- that, again, the circuit courts of appeal have uniformly applied this. They seem to be--
John G. Roberts, Jr.: Well, they don't have a choice, right? They can't say, I don't like the Supreme Court rule so I'm not going to apply it, other than the Federal Circuit. [Laughter]
Glenn W. Rhodes: --Actually, Mr. Chief Justice, that was going to be my next point, about the Federal Circuit, but -- it does, again, provide a workable framework for dealing with these issues, and it seems to be a very large departure to go back and wipe out the last 30 years of case law that has been developed to handle these issues. It would be a large departure. If there's no other questions, I'll reserve the remainder of my time for rebuttal.
John Paul Stevens: Let me just make one comment on the large departure: Would it be a large departure if we just said, in the very narrow category of cases where there has been a remand on the basis of -- the district judge doesn't want to exercise supplementary jurisdiction over State law claims, that's not appealable, period? Just say that's a slight exception from Thermtron?
Glenn W. Rhodes: Well, Mr. Chief Justice -- sorry -- Justice Stevens, that would be an exception under Thermtron that doesn't seem to be called for because the way it's been interpreted, it has to be -- and the way even the amendments in '88 and again in '96 -- it's only barred if it's for a lack of subject matter jurisdiction, and plainly here a discretionary remand is not for that basis.
John Paul Stevens: They're not amendments of subsection (d), and subsection (d) is what has the language that really reads right on this case.
Glenn W. Rhodes: Well, I think the other -- the other problem with that is the whole doctrine of -- of supplemental jurisdiction that was first laid out in Carnegie-Mellon and United Mine Workers, where the difference between remands under 1367(c) seem not to overlap with the remands under 1447(d) and 1441. So if we made that an exception and we pulled this into 1447(d), it -- I'm not sure what the consequences would be from doing that.
John G. Roberts, Jr.: Thank you, counsel. Mr. Allison.
Theodore S. Allison: Mr. Chief Justice, and may it please the Court: Let me begin with Petitioner's counsel's last remark, and that is that we don't know what the consequences would be, except that we do know that by applying the review bar to supplemental jurisdiction remands, it would bring us closer to achieving the purpose that has been expressed in the statutes of Congress since 1887. I know that the Court is familiar with the late Chief Justice Rehnquist's dissenting opinion when he was an Associate Justice in the Thermtron case, and Justice Rehnquist at that time wrote that there had been no cases since the review bar was put into place in 1887 -- no cases where exceptions to review had been recognized. He believed that it was a plenary bar on review.
Ruth Bader Ginsburg: But that was a dissenting opinion, and that was how many years ago? How many years?
Theodore S. Allison: Justice Ginsburg, it -- it was a dissenting opinion, and it was in 1976, and we certainly would not cite it as authoritative except for our confidence in Justice Rehnquist's review of the law as it existed at that time.
Ruth Bader Ginsburg: But you have a majority rationale that says, although 1447(d) reads in absolute terms, in fact the only remands that it -- that it covers are those based on a defect in the removal or lack of subject matter jurisdiction. So you can't -- you can't say, well, Thermtron had a result that we can limit to Thermtron's own unusual facts, because the Court gave a rationale. I mean, courts give reasons for what they do. And the Court drastically limited 1447(d) when it said 1447(d) has to be read consonant with 1447(c), and 1447(c) deals with only two kinds of remands, one for defective removal and the other for lack of subject matter jurisdiction.
Theodore S. Allison: That is -- that is correct, Justice Ginsburg. And, in fact, to harken to your earlier question, to Your Honor's earlier question, we are not asking for Thermtron to be overruled, but I think, in effect, to be updated. The Court in Thermtron did give a rationale, and the rationale that it gave was that it viewed -- the opinion for the Court by Justice White -- viewed 1447(c) as being the sole source of Federal remand power. And as the Court noticed in the ensuing 30, 40 -- excuse me -- yes, 40-odd years, there have been a number of other sources of remand power recognized. And we see no reason why the holding in Thermtron should not be overruled but be updated to recognize that -- that the spirit of what the Court held in that case would be served and would be harmonized with the review bar as it has existed lo these 120 odd-years, would be served by expanding the -- excuse me, contracting the reach of Thermtron so that it is not simply 1447(c) remands, but any remand authorized by statute.
David H. Souter: Okay. But no matter -- no matter what adjective or what verb you use, that's overruling a very clear rule of Thermtron. And we normally operate on a theory that when a conventional statute is construed by this Court, it stays construed until Congress changes it. And I don't -- I don't see how you can follow the line of reasoning that you're proposing, even though you talk about updating and harmonizing, without violating that basic stare decisis rule.
Theodore S. Allison: It's -- it's an essential question, Justice Souter. And I think the way we harmonize it is to say that Thermtron has indeed been pared back by the Court's subsequent decisions. And, of course, it is our second argument that the Court do something with the rule in Thermtron. Our primary argument gets to the question of the statutory language and whether a Cohill remand falls within it. But our secondary argument is to say, certainly, it's well recognized that Cohill disapproved and pared down that portion of Thermtron that held that the only remand power is the remand power expressed in 1447(c). In a -- in a later case, in Quackenbush, the question of whether mandamus or appeal was the appropriate vehicle for challenging remand orders. And in that case, again, the Court said that we are -- we are disavowing Thermtron's sweeping statement that mandamus is the only vehicle for challenging a remand order.
David H. Souter: We did -- we did not disavow the relationship between (c) and (d).
Theodore S. Allison: Indeed, the Court did not. And we suggest again only -- it is only a suggestion in our brief that the Court might wish to look at the ensuing history since Thermtron and make a similar limiting statement that recognizes that a lot of remand authority has been established since Thermtron in a number of statutes and by, of course -- by the Court's holding in Cohill.
Ruth Bader Ginsburg: What in addition to the civil rights provision?
Theodore S. Allison: Well, indeed in Things Remembered, the Court was considering whether a 1447 -- whether 1447's review bar applied to a remand under 1452. 1452 is another statute that deals with remands in the context of cases associated with bankruptcy issues. And in that case, there was a remand for failing to follow a removal procedure, and the Court held, citing -- citing Rice, United States versus Rice, based on Congress's awareness of the universality of the review ban, that when another statute comes into place that provides for remand, the review bar applies whether or not -- of course--
Ruth Bader Ginsburg: Then that's a specific statute that would prevail over the general provision.
Theodore S. Allison: --It's a little bit -- Justice Ginsburg, a little bit different than the Court's decision in Osborn, in which the much more specific Westfall Act Provision was held to prevail over 1447. In Things Remembered, it was simply the fact that the review bar was held to apply to a remand, even according -- under another statute, and, of course, recognizing that there are now other statutory bases for remand. The interesting thing about 1452 -- and Justice Ginsburg, I believe that you wrote the concurrence on this -- is that 1452 provides for remand on any equitable ground and that such remands are not subject to review by appeal or otherwise. So 1452, again, expresses, I think, a trend in the thinking of Congress, if there is such a thing as the thinking of Congress, that -- that the review bar will be expanded and will even include such discretionary decisions by a district court as any equitable ground.
Ruth Bader Ginsburg: But Things Remembered, I think, was raised very carefully, just to say that the question that's before the Court now has not been decided before, the precise question here--
Theodore S. Allison: Yes.
Ruth Bader Ginsburg: --of discretionary remand?
Theodore S. Allison: That is--
Ruth Bader Ginsburg: So I think -- I looked again at Things Remembered, and it turned out to be just as I remembered it ---- [Laughter] --that it was neutral, colorless. It just said we haven't been confronted with this issue. And I think Powerex said the same thing, although it said it in more definite terms -- it is far from clear.
Theodore S. Allison: --That is true, and that is what the Federal Circuit said -- meant when it said that Powerex made the question precedential. Because, certainly, if Things Remembered had decided the issue that's before the Court today, I think the issue wouldn't be before the Court today. And that, of course, is why we're here. But the Thermtron -- the Thermtron issue really is our second argument, and it -- it is a very gentle argument that the Court -- and if the Court certainly wishes to continue discussing that, that is -- that is very profitable for what we're doing here today. But the first argument is that, harkening back to your original questions, Justice Ginsburg, why shouldn't a remand when only State law claims remain in a case, as in Cohill and as in 1367(c)( 3) -- why should that not come within the language of 1447(c), what I'll call the jurisdictional clause, because it clearly is a matter that is only of concern to State courts? And I think that the Court in United Mine Workers v. Gibbs made clear that when all State -- all the Federal claims have left the case and only State law claims remain, that it's almost presumptive that those should be sent back--
John Paul Stevens: Yes, but your opponent's argument is that the -- the claims that remain do include a Federal claim.
Theodore S. Allison: --That's true, Justice Stevens. That is his argument, and I think what's important about that argument is the inconsistency it sets up. It essentially casts a net that draws in these supplemental jurisdiction cases. And what the net does is it allows the courts of appeals to review some artful pleading issues, which is essentially what we have here. We have State law claims, and our opponents are suggesting that these are, in fact, disguised Federal claims that must be heard in Federal court.
John Paul Stevens: What about the ruling on the RICO claim itself? That was clearly a Federal issue.
Theodore S. Allison: Yes. The RICO claim was what -- was what gave the district court jurisdiction over the case in the first place. And it's interesting that in the -- in the district court's decision, it made me think -- it made me think a little bit of the Waco case, because in the district court's decision, the district court very clearly said, first, I have no jurisdiction over these State law claims, and I'm going to remand them, and now I will turn to the RICO claim which creates a conundrum that I'm not sure--
Ruth Bader Ginsburg: Where did the -- maybe the district judge didn't say that. Maybe you can point me to the place where it did. But if it did say it, it's flatly wrong, because there is -- that's what supplemental jurisdiction is. It's says you have jurisdiction. It's a huge difference between you have no jurisdiction, you are powerless--
Theodore S. Allison: --Yes.
Ruth Bader Ginsburg: --and you have power, but it's up to you to exercise it or not.
Theodore S. Allison: Justice Ginsburg, that's why we didn't -- we didn't press that point because I think -- I think that even we can see that the court exercised its jurisdiction to decide and dismiss the RICO claim, although it's reminiscent of -- of -- of the decision in Kircher--
Ruth Bader Ginsburg: It -- it wasn't a discretionary decision about RICO. RICO -- there was no Federal claim stated. That's out of it.
Theodore S. Allison: --Right.
Ruth Bader Ginsburg: What the district court has jurisdiction over are the supplemental claims, which it can choose not to exercise, but it can say, "I don't have jurisdiction", because Congress has given supplemental jurisdiction but then left it to the court to remand on stated conditions. But you -- you seem to conflate the absence of subject matter jurisdiction with a discretionary decision not to exercise subject matter jurisdiction that the court undoubtedly has.
Theodore S. Allison: Well, Justice Ginsburg, I have made every effort not to conflate those two -- those two concepts, and in fact we did say that when -- when a court acquires supplemental jurisdiction in a case, that that is a species of subject matter jurisdiction. At that point -- as the Court held in City of Chicago v. International College of Surgeons. At that point the court does have a mandatory discretion to -- or mandatory jurisdiction to exercise power over the entire Article III case. But we then argue when the Federal claims leave, the case that jurisdiction changes. That jurisdiction changes from a mandatory one that the Court, as in Thermtron, would certainly be concerned if a district court abjured its jurisdiction that's mandatory. But it changes by operation of 1367 from mandatory to discretionary. And when Congress passed 1367 in 1990, Congress intended to codify the existing law right up through Cohill on the subject of supplemental jurisdiction, combining ancillary and pendent in the--
John G. Roberts, Jr.: So your idea is there is jurisdiction, but when the Federal claims fall out, then there's no jurisdiction?
Theodore S. Allison: --Yes, Mr. Chief Justice.
John G. Roberts, Jr.: Okay, but that seems to me to echo the fundamental misperception that if you have Federal jurisdiction based on a particular event -- let's say, if you're dumping chemicals in the water, that gives you a Federal cause of action; you have Federal jurisdiction; there's a trial. It turns out you weren't dumping chemicals -- you don't then say, there was no jurisdiction; there was jurisdiction before, but once the finding is made that the facts didn't support it, then there was no jurisdiction. You say, there was jurisdiction all the time, and you lose.
Theodore S. Allison: There was -- there was indeed jurisdiction. And what we argue is that the nature of the change, when it goes from mandatory, the concern of Thermtron, to discretionary, which gives -- virtually pushes out of the Federal court to the State courts anytime up until trial -- the nature of that jurisdiction changes, and we believe that that is not what Congress intended by the words 1447(c). So if we come back to the words of the statute, the words of the statute should be construed broadly in order to serve the purposes of -- of remand. The Court has made clear that concerns of comity and federalism say that we should construe 1447 in favor of remand, and I believe that that should extend to the concept of the whole delay and shuttling.
Ruth Bader Ginsburg: But then -- then what you are doing is that you are using the label "subject matter jurisdiction" in a way that seems to me, that is, there are many categories that could be ambiguous at the edges, but not subject matter jurisdiction. Subject matter jurisdiction means, court, you have no power, period. There's no diversity, there's no Federal question, there's no other basis for the Federal court to exercise jurisdiction. And to say, well, we can extend the label "subject matter jurisdiction" to include a case where the district court chooses not to hear certain claims, even though it has jurisdiction over them, I think is a -- is a -- a misapplication of the notion subject matter jurisdiction.
Theodore S. Allison: It is -- it is a difficult -- a difficult conundrum. I think maybe all conundra are difficult, but this one particularly. And, Justice Ginsburg, in the opinion that you wrote for the Court in the Arbaugh case, you very clearly pointed out that the word "jurisdiction" is used in a variety of ways by legal scholars, by--
Ruth Bader Ginsburg: Yes, but not subject matter jurisdiction. Jurisdiction is personal jurisdiction, subject matter jurisdiction. What I did in Arbaugh was to explain that all kinds of things, like time limits on when you can sue, have been labeled jurisdictional and mandatory when in fact they are not. They are simply statutes of limitation.
Theodore S. Allison: --That -- that is correct, but that's the same -- that is the nature -- that's the nature of the problems that the Court confronted in Kircher and Powerex. Again, this is by analogy only. We are not concerned about -- about labels like that, if the district court believed that it was remanding the case because it lacked jurisdiction. But I'm coming back now to subject matter jurisdiction, and I have found no case in this Court that has given a definition -- City of Chicago with its mandatory language was the closest I was able to find. The Koffski case, out of the Seventh Circuit, is the one case I was able to find from a higher court that said that supplemental jurisdiction is technically a form of subject matter jurisdiction. And what we argue--
Ruth Bader Ginsburg: Why is it only technical? It says, court, you can exercise power. Subject matter jurisdiction is the power that the court has to hear a given controversy, and under supplemental jurisdiction, there is undoubted power in the district court to hear those claims.
Theodore S. Allison: --In its -- certainly, in its, I think -- in its -- in its textbook sense, that is what subject matter -- when the world is divided between subject matter and personal and then the third, territorial, which I think is a relation -- has a relation to personal -- when the world is divided along those lines, then subject matter takes on the broadest possible meaning, but we have conflicting broad policies. On the one hand, we have a broad definition of subject matter definition; on the other hand, we have a statute that should be construed to favor remand at almost all lawful costs. And -- and subject matter, if we step back from our -- our dichotomy, personal and subject matter, subject matter also means, as -- as Your Honor said at the beginning of this argument, something that is -- that is a subject with which the Federal courts should be concerned, and on which they should expend their resources. And we now have the circuit courts hearing appeals from decisions -- discretionary decisions because they are technically within the realm of subject matter jurisdiction. But clearly, State law claims are not the subject matter with which the Federal courts should routinely be concerned, and that's why United Mine Workers -- and Cohill echoed it -- said, these claims should be sent back, and Cohill even -- both cases even said that the propriety of remanding the claims should be reviewed at every stage in the litigation. That -- that I think presents us a pretty strong policy by this Court that remand is to be indulged at almost any lawful cost.
Ruth Bader Ginsburg: You -- you put it in terms in your brief -- if I understood your position correctly -- yes, there is subject matter jurisdiction over supplemental claims, but once the district court chooses not to exercise that jurisdiction, it -- and these were the words you used -- "it divests itself of jurisdiction".
Theodore S. Allison: Yes. The -- the argument -- and I was attempting to make a technical argument in the brief, and I think today I'm speaking in slightly more global terms -- but the technical argument is that when a district court makes a decision, in the words of Gibbs, that it would be inappropriate to exercise jurisdiction over those claims, then the claims are to be remanded--
Samuel A. Alito, Jr.: What if the court changes its mind? What if it grants a motion for reconsideration? Then it reacquires the jurisdiction?
Theodore S. Allison: --Well, Justice Alito, the question of whether it changes its mind I think is intricately bound up in this question of reviewability because the cases that we found that -- that talked about reconsideration talked about reconsideration only because there was the potential for review of these orders. I think the norm for a remanded case is that the order of remand is entered, and the order of remand is certified and mailed to the State court, and the district court no longer has jurisdiction at that point. Now, certainly it could reconsider as it's engaged in its decision process. It could go back and forth, and reconsider before it signs the order. But that's no different than -- than many other cases in which the court can make a discretionary decision that it has no jurisdiction. The only--
Ruth Bader Ginsburg: The discretionary--
David H. Souter: But your--
Ruth Bader Ginsburg: --The discretionary decision is that it chooses not to hear the case. It's not -- there's no discretion there. There's nothing discretionary about saying we have no jurisdiction. "We have no jurisdiction" means we have no power. So the -- the two are just at odds with each other. No power, yes power, but we choose not to exercise it.
Theodore S. Allison: --And I think -- I think that the -- again, the purpose of the review bar as it's been expressed for over a hundred years has been to trust district judges to make these decisions and then get the case where it needs to be to be resolved on its merits. So to say that the court chooses not to hear the case, it -- it suggests something a little bit less gray than the decision that I believe the court would make when it decides that it's inappropriate to hear the case, in the words of Gibbs.
David H. Souter: --You -- you think that choosing not to hear is distinguishable from a decision that it is inappropriate to hear?
Theodore S. Allison: I -- I meant only to suggest that it is not a -- it is not a choice. It's a -- it is not an ill-considered choice. Certainly, there's a choice involved in the decision that it would be inappropriate. But I don't see -- and I -- I wanted to resist a rhetorical question, but then I don't see how anyone could say when a court is faced with -- with only State-law claims that it could either decide or not, and it decides it would be inappropriate to retain jurisdiction over those claims, that somehow it should retain jurisdiction over those claims.
Ruth Bader Ginsburg: Well, that would argue for a highly deferential standard of review, respecting the district judge's determination that it's not what -- it hasn't invested any time in these questions, and it shouldn't because they are purely State-law questions. That's -- but that's something quite different from -- from a -- the -- the terminology that you used is troublesome because a court doesn't have power to divest itself of jurisdiction. If Congress gives it jurisdiction, it has it, and the court can't divest itself of that. It can, if Congress permits it, decline to exercise jurisdiction, but a court is not capable of divesting itself of jurisdiction.
Theodore S. Allison: I believe -- well -- and -- and this is a mechanical argument, but I believe that when the court makes the decision and then -- and then executes the remand, that that is divesting itself of jurisdiction. And perhaps it was -- perhaps it was a poor -- a poor word choice.
David H. Souter: But even -- even on your analysis it seems to me that the -- the cart is before the horse, because it is -- it is not remanding because it does not have jurisdiction. What you are saying is that after it remands, it loses jurisdiction, and those are two very distinct categories. The -- the premise for the declaration that it does not have jurisdiction is a premise that even on your argument does not arise until following remand. So there's no way you can fit it, it seems to me, into the category of -- of remanding because at the point of deciding to remand it has no jurisdiction. That, in fact, is false.
Theodore S. Allison: It is simply a question, I think, of -- of the choice of the word "divest" and what that means. I would -- I would analogize in order to perhaps make it seem more -- more accurate -- I would analogize to what a district court now can do under section 1447(e), where it makes a decision applying the law, using its discretion, to allow joinder of a nondiverse party that would then destroy diversity and require the case to be remanded. And I would say in that case that the court makes a decision that divests it of jurisdiction, and it is very technical to say that -- that, yes, it lacks jurisdiction as soon as it enters the order admitting that party to the case. But that may very well be the same order that remands the case to the State court. But I -- I do -- I do see that there is power. And if the case is going to turn on power, as the Court -- some of the language in Powerex suggested that it might, then I don't know that we -- I don't know that we make much headway. But I -- I -- I see 1447(c), lacks subject matter jurisdiction, as being broad enough to comfortably take in the situation where the State-law claims, not really within the subject matter of the district court's power, are determined inappropriate for that court to hear and sent back. And it would bring us that much closer to realizing the purpose of the review bar that has existed since 1887, taking a category of cases out of the jurisdiction of the circuit courts. I -- I had wanted to offer the Court some statistics, as maybe law professors might, about the number of cases that are heard on this type of appeal. I can say that the cases that we found in our footnotes 18 through 20 represent something close to the universe of cases in which discretion was found to be abused. And that abuse of discretion is nowhere near as egregious as the legal errors that a district court might commit in making erroneous judgments that it has no jurisdiction which were nonetheless subjected to the review bar in Kircher and Powerex. If there are no further questions--
John G. Roberts, Jr.: Thank you, counsel,--
Theodore S. Allison: --I will stop now. Thank you.
John G. Roberts, Jr.: --Thank you. Mr. Rhodes, you have four minutes remaining.
Glenn W. Rhodes: I just had a few quick points that I'd like to bring up. First, I would just like to reiterate that when Congress enacted 1367, that gave it Article III jurisdiction in those matters, just as 1331 and 1332 do. I would also like to reiterate that -- that stare decisis should be maintained over this statutory interpretation because it has proved to be workable, rather than not workable. Again, the circuit courts -- even though as Mr. Chief Justice has iterated that they have to follow this, they have found it to be a workable framework. And, again, as the Court expressed in Powerex, they agree that in Quackenbush that Thermtron was not altered. And Congress has -- has seemingly ratified this Court's interpretation in Thermtron, and as it has been applied in Quackenbush.
John G. Roberts, Jr.: I suppose, though, if it would be an abuse of discretion for the district court to retain jurisdiction, then maybe there is -- there never was jurisdiction, right? You said they have discretion to exercise or not. Well, if it turns out they don't have discretion to exercise -- you know, because it's a huge State claim and a tiny Federal claim -- why wouldn't that properly be regarded as an absence of jurisdiction?
Glenn W. Rhodes: My response to that, Mr. Chief Justice, is that until a court decides that it was an abuse of discretion, the district court had jurisdiction under 1367(c) to either exercise that power or not exercise that power. And unless there's any further questions for me, I ask that the -- this be remanded to the Federal Circuit to decide on the merits of the appeal.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


William H. Rehnquist: We'll hear argument now in No. 106 Original, the State of Illinois v. the State of Kentucky. Mr. Pearson.
Rickie Leon Pearson: Mr. Chief Justice, and may it please the Court: In 1986 Illinois filed a complaint against the Commonwealth of Kentucky in this original action. In the complaint Illinois alleged that Kentucky had directly infringed upon its sovereignty by exercising its boating and fishing laws north of the 1792 low-water mark on the northwestern side of the Ohio River. Prior to this litigation the 1792 low-water mark with respect to Illinois had never been plotted, designated, or otherwise marked. And prior to that action there had never been any boundary dispute between Illinois and Kentucky or any recurring litigation. In the answer Kentucky denied that it had directly infringed upon Illinois' sovereignty. Instead, Kentucky asserted that its boundary on the Ohio River is the low-water mark on the northwestern side of the river as it exists from time to time. In other words, the current low-water mark. Also in the answer Kentucky raised two affirmative defenses, one affirmative defense being that of acquiescence, the second affirmative defense being that of latches. Kentucky raised the defense of acquiescence because it wanted to invoke and employ the basic teachings of Georgia v. South Carolina, and that is Kentucky wanted to maintain, and to this day wants to maintain, the status quo on the river. Kentucky submits that the boundary between the two States, as it has been for 168 years, is the low-water mark on the northwestern side of the river. By bringing the complaint, Illinois in essence seeks to change this boundary and make it the 1792 low-water mark. Kentucky submits that there are many practical considerations with respect to utilizing the low-water mark on the north side of the river as the boundary between the two States.
Anthony M. Kennedy: Now, when you say low-water mark you have to tell us low-water mark at what time.
Rickie Leon Pearson: As it exists from time to time, or currently.
Anthony M. Kennedy: The changing low-water mark, not the 1792 low-water mark.
Rickie Leon Pearson: That's correct. Not the 1792 low-water mark, but the prevailing, current low-water mark.
Antonin Scalia: Mr. Pearson, are you asking us to overrule Ohio v. Kentucky? I mean, you do not accept that Ohio v. Kentucky sets forth the proper rule, even without all the acquiescence? You--
Rickie Leon Pearson: Your Honor, we're not asking this Court to overrule Ohio v. Kentucky. We think that the case before this Court can be determined independently of that particular situation.
Anthony M. Kennedy: --And must be for you to win.
Rickie Leon Pearson: That's affirmative. That's correct. If you look at Ohio v.--
Anthony M. Kennedy: Would you object if we were to overrule that area case?
Rickie Leon Pearson: --No, sir. We would not object if you were to overrule that case.
Anthony M. Kennedy: Well, there was a dissent in that case, wasn't there?
Rickie Leon Pearson: There was a dissent in that case. And might I add, it appeared to favor Kentucky with respect to its argument here today. But there are some historical antecedents and factors that go into why Kentucky has recognized the ever-changing low-water mark on the Ohio River for 168 years. It all starts back in 1818 when you look at the Illinois Enabling Act, the 1818 constitution of Illinois, the 1848 constitution of Illinois, and the 1870 constitution of Illinois. All these documents, when viewed, conclude that the boundary between Illinois and Kentucky is the low-water mark, as those documents put it, along the northwestern shore, meaning the bank. Perhaps maybe the most important notification that Kentucky had with respect to the low-water mark on the northwestern side of the river came from an 1849 report of the Illinois Joint Select Committee to investigate Illinois' boundary on the Ohio River. That legislative body concluded that the boundary between Illinois and Kentucky is the low-water mark on the northwestern side of the river. Kentucky submits that the conclusion of the Joint Select Committee from Illinois is in keeping with the 1820 case of Handly's Lessee v. Anthony. In the Anthony case the court was called upon for the first time to construe the 1784 Virginia Deed of Cession which gave lands to the United States of America, and thereby created Kentucky, Illinois, Indiana, and Ohio. In construing the 1784 cession, the court in Anthony's Lessee concluded that the boundary for Kentucky on the Ohio River is the low-water mark on the northern side of the river, or to put it in another term used by the court, the water's edge. But there were many factors why the court reached this conclusion, one of them being that it would be convenient for future population, because at that time the United States was growing. Secondly, it was an identifiable boundary mark between the States. With that in mind, Kentucky submits that by using the low-water mark on the northwestern side of the river as it exists from time to time, or currently, or as it prevails, is the most practical approach to resolving the boundary dispute. After all--
William H. Rehnquist: Mr. Pearson, if you're not asking the Court to overrule Ohio against Kentucky, then your argument has to be based on acquiescence, does it not?
Rickie Leon Pearson: --It does, Your Honor.
William H. Rehnquist: And how much of a part does the practicalities of the thing play in acquiescence? I mean, don't you have to show that Illinois consented to this boundary, basically?
Rickie Leon Pearson: You do. You have to show that they acquiesced in this particular boundary. You sure do.
William H. Rehnquist: And if they acquiesced, what difference does it make whether it's a practical boundary? And if they didn't acquiesce, what difference does it make whether it's a practical boundary?
Rickie Leon Pearson: Your Honor, I think it's... it's very important that it's a practical boundary for the simple fact that it would best serve the public convenience.
William H. Rehnquist: But what has that got to do with acquiescence? Acquiescence is a state of mind exhibiting your willingness to abide by a particular thing.
Rickie Leon Pearson: Yes, Your Honor. I think if you look back at Vermont v. New Hampshire, which was decided in 1933, the court in Vermont v. New Hampshire looked at the practical considerations for the public convenience. They looked to see, first of all--
William H. Rehnquist: Did that... did that case turn on acquiescence?
Rickie Leon Pearson: --Yes, it did, Your Honor. And it had to do with the location of the boundary between Vermont and New Hampshire on the western... the western low-water mark on the Vermont side of the Connecticut River. It turned on acquiescence. The court there looked at the conduct of the inhabitants and the issue of acquiescence. And acquiescence, with respect to whether or not to use the largely identifiable western low-water mark on the Vermont side of the Connecticut River, looked at the practicalities of it. Kentucky would submit that looking at the practicalities in this situation, likewise, is very important. I think if we look at some of the practicalities and how they have impacted upon the interaction between officials from both Kentucky and Illinois, then I think we can bring home closer the doctrine of acquiescence.
Byron R. White: Well, at least it makes it more sensible to argue acquiescence if it's... if acquiescing was in the public interest or if it was practical to do so.
Rickie Leon Pearson: I would agree, Your Honor. That's precisely our point. For instance, if we look at the bridges that cross the Ohio River between Illinois and Kentucky, there are four of them. Basically a bridge that was constructed in 1929, the Brookport bridge, 1938 the Cairo bridge, which, that's what they call it in Illinois, they don't call it Cairo, the 1956 Shinytown bridge, and the 1974 Interstate 24 bridge. With respect to the Interstate 24 bridge, in 1971 a construction agreement was entered between Illinois and Kentucky, and with respect to that agreement it was concluded that the boundary between the two States would be the north normal pool line, loosely translated the low-water mark. It did not say, it did not specify 1792. Kentucky submits that it's talking about the prevailing or current normal pool line on the river. Likewise, we see the same kind of situation with respect to Illinois and Kentucky entering into a maintenance agreement regarding the Cairo bridge, which was constructed in 1938. In 1954 Kentucky and Illinois officials corresponded regarding where to place the sign on the bridge indicating when you are going to be entering Illinois or leaving Kentucky. And between this correspondence one of the district engineers for Illinois concluded, after looking at the 1936 construction plan, that the area located on that construction plan was about as close enough to the theoretical line as it could be. Kentucky had that 1936 plan analyzed by one of its bridge engineers and of course that plan indicated that the boundary was at Pier B, Station 20 plus 10. Notwithstanding the fact that that's construction talk, the bottom line is when you look at it it's the same as the low-water mark on the northern side of the river. Consequently Illinois has been on notice for quite some time, especially with respect to the 1849 agreement, a Joint Select Committee conclusion that the low-water mark on the northwestern side of the river is indeed the boundary. Likewise there was other situations which have come into play to show that Kentucky is exercising its jurisdiction and its dominion to the north low-water mark on the Ohio River. For instance, Kentucky counties that bound... that border on the river have the right in the authority under Kentucky's 1810 statute, and the case law that has interpreted it, to lease the river bed to the thread or the middle of the stream. As a result of that subsequent decisions by the Supreme Court of Kentucky, or the highest court in Kentucky at that time, concluded that the State of Kentucky likewise has the authority to lease the bed of the river from the middle of the stream to the low-water mark on the northwestern side of the river. And that's exactly what Kentucky has done. Before the Special Master there is evidence that Kentucky has entered into agreements with private companies for the leasing of the river bed for dredging of sand and gravel.
Sandra Day O'Connor: Mr. Pearson, I guess Kentucky has boundaries along the Ohio River with Ohio and--
Rickie Leon Pearson: Indiana.
Sandra Day O'Connor: --Indiana as well.
Rickie Leon Pearson: That's correct.
Sandra Day O'Connor: And so I assume if somehow we were to agree with you that there has been acquiescence here for the Illinois boundary, that would mean the boundary is someplace else with respect to Indiana and Ohio?
Rickie Leon Pearson: That's correct. In other words, if I understand your question, it would create an inconsistent boundary.
Sandra Day O'Connor: Yes, quite.
Rickie Leon Pearson: With respect to that conclusion... which it would. It would create an inconsistent boundary. But there are some factors to be concerned. Maybe perhaps the bright-line principle that would allow Kentucky to fashion the boundary as it argues today, which has been recognized for 168 years, is California v. Nevada. I think the bright-line principle in that case is that there is no particular relationship between the origins of a boundary and the legal consequences of acquiescence in that boundary. In other words, for 168 years it has been no problem between Illinois and Kentucky. Even as I speak today, the boundary on the river which the parties or the people who work on that river recognize, is the low-water mark. We haven't had any problems with it for 168 years, even though it has been different than the 1792 low-water mark. I think the... at present the Kentucky legislature, with respect to promulgating in its revised statutes the description of the boundary now, talks in terms of allowing the low-water mark on the north side of the river to intersect with the present 1792 low-water mark as we know it from Ohio v. Kentucky, and of course Kentucky v. Indiana. Merely, the point being is that there has been no problem up until this lawsuit was filed regarding the boundary between the two States. At present Kentucky enforces its boating and fishing laws on the entire river to the northwestern side of the river at the low-water mark. For instance, with respect to fishing licenses, the testimony before the Special Master showed that if an individual is fishing in the Ohio River, then Kentucky officials will check that person for his or her license. But if that person is fishing from the bank the Kentucky officials will not. Moreover the officials from Kentucky testified that there are no Illinois water patrol or Fish and Wildlife personnel on the river. Only Kentucky is the State that patrols that river and enforces the fishing and boating laws on that river.
John Paul Stevens: Mr. Pearson, isn't it possible that the boundary is actually on the land north of where the water is, under Illinois' theory?
Rickie Leon Pearson: No, Your Honor.
John Paul Stevens: I mean, maybe... isn't it possible the river has moved to the south rather than to the north?
Rickie Leon Pearson: I think, Your Honor, I think you're speaking with respect to a survey that was done by Illinois with respect to that. We don't... we cannot concede that that is possible or that is the case. We don't... we don't know the impact with respect to what dams have done to the river and perhaps that issue might be premature and be appropriate if this Court concludes that Kentucky does not prevail.
John Paul Stevens: No, my point is that all this activity rely on... say Illinois allowed all the policing and what went on on the water itself. Maybe they assumed that was part of Kentucky because they don't really know exactly where the 1792 boundary is.
Rickie Leon Pearson: That may well be true, Your Honor, but in the complaint they allege that it was the 1792 low-water mark. I have to take them--
John Paul Stevens: Right, but I'm just saying if you don't know where it is, conceivably... I don't know, I don't know anything about the geography. But conceivably the 1792, the river was 10 miles north of Cairo.
Rickie Leon Pearson: --It could have been. And I think you're talking about basically the principles of accretion and erosion.
Speaker: Yeah.
Rickie Leon Pearson: Kentucky submits, just as it has with respect to Illinois recognizing the low-water mark on the northwestern side of the river, because it has waited 168 years in which to bring this action, that it has in essence acquiesced likewise to the application of the principles of accretion and erosion. In other--
Antonin Scalia: If I didn't know where the 1792 low-water mark was, I guess I would just operate on the assumption that it was where it is now, and therefore my operating on that assumption would not demonstrate any acquiescence whatever. It would demonstrate only a mistake of fact, perhaps. I mean, you have to demonstrate an acquiescence in the legal principle, right, not just in a fact, but in the legal principle.
Rickie Leon Pearson: --And I think we have with respect to inaction for a long period of time.
Speaker: Well, how does--
Rickie Leon Pearson: That's one of the considerations.
Byron R. White: --How would it hurt Kentucky? You just don't know how it would hurt you, Kentucky, if Illinois won?
Rickie Leon Pearson: I think it could hurt us in many regards.
Byron R. White: Okay, but you don't know how?
Rickie Leon Pearson: I think I do. If Illinois were to prevail, is that your question?
Speaker: Yeah.
Rickie Leon Pearson: I think I would. First of all--
Byron R. White: Tell us.
Rickie Leon Pearson: --First of all it would be with respect to the issuance and the selling of fishing licenses. Number one, which--
Byron R. White: Well, how do you know?
Rickie Leon Pearson: --Well, if the boundary... let's predicate on the assumption. If the boundary is the 1792 low-water mark as Illinois alleges in its brief, which means that the boundary is no longer the shoreline but moves out into the waterway, then obviously because of the geographical location of that boundary which Illinois says is the boundary between the two States, we're going to give up some of the river. And consequently fishing--
Byron R. White: For purposes of fishing jurisdiction?
Rickie Leon Pearson: --Fishing jurisdiction. Maybe for that fact dredging with respect to sand and gravel, if they want to dredge along the northern... northwestern shore.
Byron R. White: But you don't know, though, you just don't know. You just have to surmise that--
Rickie Leon Pearson: That would appear to be, based upon the historical facts on the river that that's a high probability. So, yeah. I don't know, but--
Byron R. White: --Of course there might be a high probability that the boundary, that the river has moved south, in which event you wouldn't lose anything in the river.
Rickie Leon Pearson: --That's true. Of course there's a probability that it could have moved north. And if it has then we probably lose a lot more. But the movement of the river, I think at this point in time with respect to trying to say that it's the 1792 low-water mark or that it's the low-water mark on the northwestern side of the river, perhaps is a little premature and would definitely be a vast and important consideration when trying to geodetically plot where we think it is if Kentucky does not prevail. I think that's where it has its most important function.
John Paul Stevens: But isn't it correct that we... the record does not yet tell us which direction, if either, the river has moved?
Rickie Leon Pearson: That is correct.
John Paul Stevens: So isn't... it seems to me it's a 5050 proposition. They want a certain line, but you don't know whether that... it doesn't seem to me you can really tell whether that line will hurt one State or the other.
Rickie Leon Pearson: Well, if... that's, that's true, but I think that there is a certain line, and that's the line that Kentucky and both Illinois have recognized for 168 years.
John Paul Stevens: Well, but you're saying the certain line is a line that changes from time to time, and wherever it is at a particular time, that governs.
Rickie Leon Pearson: That's correct.
John Paul Stevens: And they are arguing for a permanent line. And we don't know whether the permanent line is more favorable to one State or the other.
Rickie Leon Pearson: Surely we know if it does move more northward--
John Paul Stevens: Well, if it moves north it's more favorable to your side, if it moves south it's more favorable to the other side. But--
Rickie Leon Pearson: --That's correct.
Byron R. White: --Has the boundary line been established, to your knowledge, between Ohio and Kentucky?
Rickie Leon Pearson: It has, Your Honor.
Byron R. White: And how did that work out?
Rickie Leon Pearson: That worked out as the result of a stipulation--
Byron R. White: And the river was moved south some places and north in other places, is that it?
Rickie Leon Pearson: --That's correct, Your Honor. I think what we have--
Byron R. White: And the same with Indiana?
Rickie Leon Pearson: --Same with Indiana, Your Honor. I think--
Byron R. White: It may be the same in your place.
Rickie Leon Pearson: --I think what we have right now--
Byron R. White: You may gain something. You may gain some ground.
Rickie Leon Pearson: --Well, the way the parties--
Byron R. White: Actual ground.
Rickie Leon Pearson: --The way the parties stipulated was that when it gets too close to ground they move it 100 feet out. That's not to Kentucky's benefit. Right now the boundary with respect to Ohio and Kentucky, as it has been agreed between the parties, takes a zig-zagging course. No one knows exactly still where it is. And when it gets too close to land the parties by agreement stipulated that it would move out 100 feet.
Byron R. White: I know, but that--
Rickie Leon Pearson: We didn't pick up--
Byron R. White: --That doesn't follow the 18... the--
Rickie Leon Pearson: --Handly's Lessee in 1820?
Byron R. White: --Yeah. That doesn't--
Rickie Leon Pearson: It does not, Your Honor.
Byron R. White: --Because if you... I would think that if the river moved a certain direction and the boundary line is that old low-water mark, it would be up on the land and you would be having some land.
Rickie Leon Pearson: I think perhaps the boundary as we know it based upon the 7... the 1792 low-water mark with respect to Ohio and Kentucky has resulted purely from stipulation and agreement between the States. And so they tried to do as best they could with what they could find, even with regard to speculation by knowledgeable surveyors as to where they think the boundary is. Kentucky didn't pick up anything as a result of that.
Antonin Scalia: Mr. Pearson, if we don't know where the 1792... I mean, it's not in the record. You don't know. We don't know. I suppose the fellow who put up the sign on the bridges didn't know either. Any of these acts of acquiescence that you're alleging, does any of them involve a situation where somebody knows where the 1792 line was, but nonetheless allows... allows jurisdiction beyond it?
Rickie Leon Pearson: No, Your Honor.
Antonin Scalia: Not a single one?
Rickie Leon Pearson: It does not.
Antonin Scalia: So as far as appears, it has just been the operating assumption of Illinois that the boundary... the boundary is... was where it is--
Rickie Leon Pearson: No, Your Honor--
Antonin Scalia: --which is a fair enough operating assumption. It may have gone in either way.
Rickie Leon Pearson: --I don't think it's been an operating assumption, Your Honor, especially if you look at the 1849 Illinois Joint Select Committee and what they did. That was their job to make a determination where the boundary is. They concluded it's the low-water mark on the northwestern side of the river. They had an ample opportunity at that time to say, oh, it's the 1792 low-water mark. They did not find such. Consequently, I think Kentucky has correctly utilized the low-water mark and Illinois has acquiesced to it being the 17... not... being the low-water mark on the northwestern side of the river. That's true, locating it would probably be extremely difficult. The parties in the two prior actions stipulated where they thought maybe it would be. With respect to the... Illinois' complaint I think also points it out. Illinois in its complaint alleges that Kentucky directly infringed upon its sovereignty by exercising its jurisdiction or dominion to the shoreline. Once again, I think that is indicative of the fact that it has always been that. It's identifiable. It's concrete. There is no guessing for people who work and live on that river everyday. There is nothing about maybe geodetically plotted the river runs, the boundary runs this way or meanders that way. When a person is on the riverbank fishing or a person puts that pole in the water, they know where it is. To give you another example as to how Kentucky has exercised dominion and control over the river, from 1946 to 1988 Kentucky had a special license called the Ohio River Commercial and Sport Fishing license. This license was purchased exclusively and available only for residents of Illinois, Ohio, and Indiana. We sold it exclusively to them so they could fish the Ohio River. In 1988 the regulations were amended such that Kentucky would then have a new license called a nonresident fishing license, meaning that Illinois residents could purchase the license, just like any other resident of a... from a State other than Kentucky. And, but in either case Kentucky was selling those licenses particularly to Illinois official... Illinois individuals or inhabitants so they could fish on the river. This once again shows you what has been going on for quite some time on the river in terms of exercising jurisdiction over the river to the low-water mark. To show you one other example, Kentucky's fishing laws allows that it be--
John Paul Stevens: Well, even in that... even on that example, if any portion of the river in which they intended to fish was south of the boundary, they'd need a Kentucky license. Wouldn't they?
Rickie Leon Pearson: --If it's south of the low-water mark.
John Paul Stevens: Right.
Rickie Leon Pearson: That's correct.
John Paul Stevens: So I would think most fish... I don't know where the, where you get the most fish out of this river, but I would think--
Rickie Leon Pearson: I don't either.
John Paul Stevens: --most people would need a Kentucky license, no matter... unless the boundary had moved, you know, the whole breadth of the river. Another question occurs to me-- --And especially since they don't know where the boundary is any more than you do. [Laughter] They know there are a lot of Kentucky game wardens out there and they want to--
Rickie Leon Pearson: Of course if they fish north of the low-water mark, one would have to assume they would have to get an Illinois license, but right now we're selling those licenses with respect to having accessibility to the Ohio River. And--
John Paul Stevens: --What would happen under your view of the case if Kentucky decided to fill out to the middle of the river and cause the river to bend farther to the north? Would they acquire territory by doing that?
Rickie Leon Pearson: --I think we have to first classify what that conduct would be by Kentucky as to whether or not it's some kind of accretion or whether or not it's evulsive in nature. Because if it's evulsive in nature, and is sudden, which usually is in terms of an earthquake, then of course because the river would shift, the shift of the river would not divest the States that had certain properties--
John Paul Stevens: So your view isn't that the proper line is as it exists from time to time. It's as it exists from time to time, excluding all examples of evulsion. That's your theory?
Rickie Leon Pearson: --That is.
John Paul Stevens: So you... even under your theory you've got to go back 100 years and find out how many evulsive changes took place, don't you?
Rickie Leon Pearson: Well, we have... we have an affidavit indicating from our surveyor that the river has not changed very much at all.
John Paul Stevens: Very much. But if there are any evulsive changes, in order to find the boundary you would have to know what they were.
Rickie Leon Pearson: Of course finding some of that evidence is one of the problems we have because of the inaction on the part of Illinois in bringing suit 168 years later. It has a deleterious effect upon the quality of evidence presented. I think that's another practical consideration with respect to whether or not acquiescence has been shown. Finally, I think I'd like to conclude by indicating that when a person drowns in the Ohio River, if that body is located in the river the Kentucky coroners will exercise jurisdiction over it. However, Illinois coroners will not. If the body is brought to the bank on the Illinois side they will exercise jurisdiction over it. Sometimes the Illinois coroners will seek the permission of the Kentucky coroners to exercise jurisdiction over a body.
Antonin Scalia: What else would you expect them to do? I mean, if it... if the 1792 boundary were the line, how would you expect them to behave differently? It would seem to me if I were a coroner I would say, yeah, I know it's the 1792 line, but nobody knows where the 1792 line is, even Mr. Pearson. He's been working with this case for a long time. He doesn't know... I'll just assume that it is now where it was then. Isn't that the way you'd operate? I would.
Rickie Leon Pearson: Well, I think, Your Honor, the answer to that question is the practical choice of all, the low-water mark on the northwestern side. Then you don't have to guess at all. Just like with... in... with the Connecticut River. There would be no guessing. There would have to be no assumptions. With that in mind, Your Honor, if there are any more questions-- Thank you.
William H. Rehnquist: Thank you, Mr. Pearson. Mr. Brunsman, we'll hear now from you.
John Brunsman: Mr. Chief Justice, and may it please the Court: I'd like to begin this afternoon by talking a little bit about the 1792 low-water line, whether anyone knows where it is or not. I think that the record does show that Indiana, Ohio, and Kentucky all resolved their boundary dispute following this Court's 1980 decision by using a line depicted on a series of U.S. geological Survey maps showing the 1792 low-water mark, and that line was based on surveys done by the Corps of Engineers about the time of 1896 to 1906. They did those surveys before they built the dams on the river that have raised the level of the river that have really caused the problem that we have here today, and the parties agreed that was the best existing representation of the 1792 line.
William H. Rehnquist: How did the 1896 surveys deduce the 1792 low-water line?
John Brunsman: It's obviously, Your Honor, it's not exactly. They just... the parties determined that's the best approximation they could ever come up with.
William H. Rehnquist: Well, so what you're saying is that the 1896 survey didn't purport to show the 1792 low-water mark; it showed the 1896 low-water mark?
John Brunsman: It showed... it used an average of gauge readings on various parts of the river going back a number of years before that, up to 50 years before that. What it did was get a mean low-water mark over a period of years, and--
William H. Rehnquist: 50 years preceding 1896?
John Brunsman: --Exactly. And the 22 U.S. Geological Survey maps showing the Illinois-Kentucky section of the boundary are part of the record in this case. They are filing No. 44. Like the maps between Kentucky and Indiana and Ohio, they all show the boundary as the low-water mark some distance south of the contemporary northern shoreline. It varies anywhere from 100 feet to some places past the middle of the river. There are three exceptions to that. There are three places where there were former islands in the river that have now become attached to Illinois. Illinois concedes those are part of Kentucky because they were islands originally, so that 1792 low-water mark would have been north of them. I submit that these maps have been in existence, many of them have been in existence since the 1950's, that Kentucky had some notice, some idea of where the 1792 low-water mark was, just as Illinois was put on notice by those maps.
Anthony M. Kennedy: If you use a changing low-water mark as the boundary, what's the law if a dam is built or the low-water mark is changed by an act of one of the States?
John Brunsman: I believe that there are cases that indicate that you can have in effect an evulsive change created by manmade intervention. In fact Illinois resolved a dispute informally with the State of Missouri using just that principle. The Corps of Engineers had built a dam there--
Anthony M. Kennedy: Well, what about the low-water mark? Suppose the low-water mark is always much higher after a dam? If the normal rule applies, is there now a new low-water mark, even though it's manmade?
John Brunsman: --Assuming that we had a case other than Ohio v. Kentucky?
Speaker: Yes.
John Brunsman: I would assume that would be a new low-water mark, because that's... a low-water mark would be the point the river recedes in its lowest stage under existing circumstances. That would be one definition.
Antonin Scalia: Well, if you knew where the 1792... I'm sorry, you did know where it was. You should have been more careful about where you put your bridge signs and things of that sort.
John Brunsman: Well, Your Honor, I don't think that a bridge sign is the sort of thing that you use to deprive a State of what would otherwise be its legal jurisdiction. I think the letter that Mr. Pearson talked about, the author said well, this is close enough to the theoretical State line for our purposes. He was putting up a sign that said you're leaving Kentucky and entering Illinois. I am sure he would have been quite surprised to consider that he might be determining a State boundary for all time by writing that letter. I don't think that's the sort of situation or the sort of fact you would rely on in establishing acquiescence. And in discussing the facts in this record I'd like to turn at this point to the various Kentucky authorities since 1890 that have recognized the 1792 low-water mark to be Kentucky's boundary. In fact, starting in 1890 that was Kentucky's position when it came to this Court and argued the Indiana v. Kentucky case. In that case Indiana suggested that it was the contemporary low-water mark. This Court disagreed, siding with Kentucky, and said the decisive question is really the line as it existed in 1792, and that it was fixed at that point and wouldn't change thereafter. So beginning as early as 100 years ago Kentucky authorities themselves have acknowledged the 1792 line. Following that decision there have been a number of Kentucky authorities, the earliest is a 1916 Kentucky case where the question was whether or not a small island in the river was within the northern boundary of Kentucky. That Kentucky court cited Indiana v. Kentucky and said the boundary is defined as the low-water mark as it existed when Kentucky became a State. And that case, I would submit, is of significance to the present controversy since the island was located in the river near Mound City, Illinois. So in that Perks v. McCraken decision we have explicit recognition by Kentucky that the 1792 line applies to that part of the river between Illinois and Kentucky. Subsequent--
Sandra Day O'Connor: Mr. Brunsman, did something occur that prompted Illinois to file the suit that it did after all these years?
John Brunsman: --I think it was the resolution... the resolution of the earlier cases in 1980, and then I believe the actual maps weren't completed showing a line until 1985. I think that's fair to say was the--
Byron R. White: xxx your statement probably benefit the results of those other cases when they finally drew the line?
John Brunsman: --Well, the line that's on the U.S.G.S. map shows that some part of the river for the most part is in Illinois. So to that extent we would benefit. I think at the time we filed the suit, I'm not even sure... I wasn't aware of those maps. I'm not certain if anyone... if we were, but they... just the certainty of knowing where it is was the benefit we sought to obtain by filing a lawsuit at that time, knowing that the court had just resolved it with regard to the other three States on the river, and that it seemed like the opportune time to do so as far as Illinois was concerned.
Byron R. White: Wouldn't there be some chance that if the boundaries, the low-water mark as it was back in 1792, that the river has changed so that that low-water mark of 1792 would be on dry land on the Illinois side?
John Brunsman: I think that's... it's conceivable, and in fact that is the situation--
Byron R. White: Well, I would think it would be just as conceivable as if the river moved the other way.
John Brunsman: --Well, but I think that... this is based on a premise that misconstrues the change in the river. The river hasn't moved. The dams have raised the level of the river so in effect it has spread out both ways. It's deeper behind the dams than it was naturally. That's why the original pre-dam--
Byron R. White: You don't think then, you don't think the Ohio is as much of a meandering river as the Mississippi, for example? It goes downhill faster, so it doesn't--
John Brunsman: --I think that is exactly what I have read, that that's the case. Also, the Corps of Engineers, the Government has spent many millions of dollars putting these dams and docks there. They are not likely to let it gradually move around those dams and docks so that--
William H. Rehnquist: --But if it's deeper above the dams, one would think it would be shallower below the dams, because the same amount of rainfall is falling on that watershed as fell in 1792.
John Brunsman: --If you look at the level of the dams, and in one of the filings, I think it's filing No. 41 in Exhibit 3 or 4, some Corps of Engineers documents, they show the level of the pool behind each dam. And it's above the existing low-water mark because each dam was built to guarantee a minimum 9-foot navigation pass. And to do that--
William H. Rehnquist: Then where is the additional water coming from? I mean, if it's wider on both sides in some places, it seems logical it must be narrower on both sides in other places.
John Brunsman: --Well, I... to tell you the truth, I can't answer that. I do know that when you look at the line based on the pre-map, or the pre-dam survey of the Corps of Engineers, you'll see that all along the shoreline of not just Illinois, but Indiana and Ohio, that pre-dam low-water mark is for the most part south of the shore. Another source that... another Kentucky source recognizing the 1792 line was the 1963 attorney general's opinion where the Kentucky Attorney General not only recognized the existence, or the accuracy of the 1792 low-water mark as Kentucky's boundary, he also recognized that because of the dams it would be south of the contemporary northern shoreline due to the general raising of the river. The final two Kentucky sources that contain statements incompatible with Kentucky's position here are their two bulletins issued in 1969 and 1972 by the Special Ohio River Boundary Subcommittee of the Kentucky Legislative Research Commission. The introduction or forward to the first of those bulletins, Bulletin 81, tells us that this special subcommittee was created specifically to study Kentucky's Ohio River boundary due to litigation during the preceding 150 years. I think it's significant to note that despite Kentucky's claim here that it has always asserted its boundary to be the low-water mark as exists from time to time, that claim was somehow lost on the authors of this... these bulletins, since neither one of those bulletins advanced such a claim on Kentucky's behalf, and both of them recognize the 1792 low-water mark. So, based on those sources running from 1890 through 1972, and those two reports were even issued while Ohio v. Kentucky was pending in this Court, it shows to me first that Kentucky has repeatedly recognized the 1792 line. Also that... oh, that's true, there was also confusion within Kentucky, because the legislative research commission was saying it's the 1792 line, Kentucky in their answer to Ohio's original complaint said no, it isn't. And again, that kind of uncertainty and confusion, I think, fits Illinois' position in this case because you don't have acquiescence where the State claiming the benefit of it can't show a longstanding continuous claim to the boundary they are seeking to have the Court adopt. There is additional evidence in the record, I think, also that shows that this uncertainty extends to both States. The best evidence of that concerns the taxation of the permanent structures. There are a number of structures built on the Illinois shore that extend into the river, barge loading facilities, coal loading facilities, that sort of thing. Illinois identified 15 of these structures, and admittedly we could produce evidence that we were definitely taxing only one of them. That was part of a grain-loading facility that is located in Alexander County, Illinois. Kentucky of course argued this shows that they have exercised exclusive jurisdiction over the river, Illinois hasn't. But in fact the record also shows that Kentucky, too, has only taxed one of these 15 structures. So really what you have, 13 out of 15 structures aren't being taxed by either State. Kentucky did try to tax a second one--
John Paul Stevens: I bet they're paying taxes now. [Laughter]
John Brunsman: --They're waiting, holding their breath. Kentucky did try to tax a second structure, but the taxpayer there protested on the grounds that they felt that the whole thing was in Illinois and not in Kentucky. And taxation I think is one of the factors the Court has traditionally looked at in these acquiescence cases, and here I think it supports a conclusion that the record shows uncertainty in both States, and that's incompatible with a finding of acquiescence. Another example--
Byron R. White: What is the... is the water above these dams heavily used for recreation?
John Brunsman: --I don't believe it is, Your Honor. I have been down there... all I can say is on my personal visits there is not. It is mainly used for commercial--
Byron R. White: No, not a lot of boating or anything?
John Brunsman: --Not a lot of boating. I only know of one--
Byron R. White: But fishing?
John Brunsman: --There is some fishing. There is some commercial fishing. But the few times I have been down there there is not a great deal of pleasure boating on the river.
Harry A. Blackmun: What do they get? Catfish?
John Brunsman: I have no idea, Your Honor. [Laughter] Another incident that Mr. Pearson talked about was the... had to do with the coroners. And he mentioned the situation where the Illinois coroner always asks permission before he takes charge of a drowning victim in the river. While it happens to be the coroner in Hardin County, Illinois, it is certainly true that he has always done so. But it's also true that the Kentucky coroner has always given his permission, even in the most recent incident where the victim was still in the river when the Kentucky coroner arrived on the scene. And I would submit again this reflects uncertainty in both States, since Kentucky doesn't suggest how one of its coroners could legally delegate authority over a death occurring in the Commonwealth to an Illinois official. Plainly it's just neither of them knows what to do exactly, so they work this out between themselves. There is a similar arrangement that was in existence for a long time between the Gallatin County, Illinois coroners and their counterpart. The Illinois coroner handled the victims if he was a resident of Illinois. The Kentucky coroner handled the rest. So again, I think these sorts of situations fall far short of what normally takes and what this Court has found in the past it takes to establish a new boundary by means of acquiescence or prescription. Finally, I'd like to discuss briefly the various instances where Illinois has exercised jurisdiction over part of the river. One example of this are the, some 78 permits Illinois' Department of Transportation has issued over the last 69 years governing a variety of structures built from the Illinois shore south into the river. And these permits were issued pursuant to a statute that requires such a permit for anyone who wishes to do any construction within the public bodies of water of Illinois. And I would submit that the actions of the Department of Transportation is clear assertion that it believed some part of the waters of the Ohio were within Illinois, or it wouldn't have been issuing these permits for the last 69 years. Kentucky of course says that Illinois has never exercised any jurisdiction on the water, and this I think proves that that--
Byron R. White: Do you think we ought to give some deference to what the Master found?
John Brunsman: --Yes, Your Honor, I certainly agree.
Byron R. White: Well, I suppose you would. But do you find any evidence in the... in our original case opinions that if it's a tie the vote goes to the Special Master?
John Brunsman: Your Honor, I think the Court has said that although the Special Master's findings are entitled to respect and a tacit presumption of correctness, the Court nonetheless has to make an independent review of each record in an original action, since it's really this Court and not the Special Master who is--
Byron R. White: That's quite inconsistent, isn't it, to say that there's a presumption but we do it independently?
John Brunsman: --Well, Your Honor, I can only repeat what I have read in the cases.
Byron R. White: I've got you. [Laughter] Well, what do you think?
John Brunsman: I'd like you to rely heavily on the tacit presumption of correctness and-- [Laughter] Another example of Illinois' assertion of jurisdiction over the river has to do with the 1927 decision of the Illinois Supreme Court in the Joyce-Watkins case. That case involved an accident that occurred on a railroad incline, and it occurred some 8 to 10 feet south of the existing Illinois shoreline. The employer there argued that since it took place south of the shoreline it didn't take place within the State of Illinois, and the Illinois Industrial Commission has no jurisdiction. The Illinois Supreme Court rejected that argument. It cited Indiana v. Kentucky for the proposition that the boundary was the low-water mark on the northwest side of the river. But then it also observed that no commission between the States had ever actually plotted that line, and that the dispute before it really wasn't the proper vehicle for resolving an interstate boundary dispute. What it did, it was however able to resolve the controversy because it concluded that the low-water mark referred to in Indiana v. Kentucky was the record low-water mark at any given point along the river. In other words, each time the river got lower the boundary moved further south. I would submit that that--
William H. Rehnquist: As opposed to a mean low-water mark.
John Brunsman: --Exactly. And under the way it applied that rule in this case it's clear that it didn't contemplate the boundary ever moving back. It would just, each new--
William H. Rehnquist: Ratchet.
John Brunsman: --It would just ratchet further south. And I submit that this certainly is not an accurate interpretation--
William H. Rehnquist: That's about as chauvinistic approach as you can take. [Laughter]
John Brunsman: --Exactly. This is the most favorable boundary, I think--
Byron R. White: Look at all the land you picked up.
John Brunsman: --It's mostly just water.
Byron R. White: Look at all the shoreline you pick up when it moves south.
John Brunsman: Well, but we haven't really picked up any shoreline. Regardless of what line the Court would adopt in this case, it's a water line either way. I don't think either State is going to gain any shoreline one way or the other, no matter how it's concluded. But getting back to the Joyce-Watkins case, as the Chief Justice indicated, that's the most favorable possible version of low-water mark the State could have come up with. That rule was cited by the various authorities within the State of Illinois from 1927 through 1973. I would submit that that alone shows that Illinois has not acquiesced to the less favorable line that Kentucky claims in this case. So in summing up, Illinois' position in this case is first of all, of course, that the boundary between Illinois and Kentucky is controlled by the prior decisions of this Court in Ohio v. Kentucky and Indiana v. Kentucky. It should be the 1792 low-water mark. Kentucky's defense of acquiescence fails, I believe, first because Kentucky authorities themselves have repeatedly recognized the 1792 low-water mark, and that is... you can juxtapose that to the fact that there is not a single witness or document in the record that says... that Kentucky can point to that says it's the low-water mark as exists from time to time. That, those words appear in the pleadings before this Court, and nowhere else that I am aware of. In addition, Illinois rely on the fact that there is evidence of confusion in both States, and once again that's incompatible with a finding of acquiescence based on a continuous claim of right. Finally, Kentucky has based its argument in part on the suggestion that Illinois has never exercised any jurisdiction on the river. I think there are examples in the record at least as concrete as those Kentucky can point to to show that we have exercised jurisdiction over some part of the river south of the existing shoreline. And that all of those factors add up to a situation where you simply do not have acquiescence. If the Court has no further questions, that's all I have.
William H. Rehnquist: Thank you, Mr. Brunsman. Mr. Pearson, do you have rebuttal? You have 3 minutes remaining.
Rickie Leon Pearson: I do. Thank you very much. With respect to the 78 permits issued by Illinois officials, Kentucky would indicate from the outset that it cannot stop Illinois from systematically developing its shoreline or its bank. In other words, those riparians along the bank have those rights. This is exactly the teachings in New Jersey v. Delaware. Because you allow the development of the Illinois shoreline, just like in New Jersey v. Delaware, the State which allows that does not abandon the defense of acquiescence. Secondly, with respect to the Joyce-Watkins case which was the Illinois case, as indicated in Vermont v. New Hampshire, only the U.S. Supreme Court can determine the boundary. The Illinois appellate court cannot determine that boundary. Furthermore, if you read the Joyce-Watkins case extremely closely, you'll find out that they recognized that the boundary is a moving boundary, which is consistent with our theory that it's the low-water mark wherever it may exist from time to time. Finally, with respect to Illinois' argument that there is uncertainty regarding where the boundary is located, this Court can end that uncertainty. It can conclude that the boundary between the two States is the low-water mark on the northwestern side of the river, which everyone can see. Every fisherperson can see. Every person having a boat on the river can see. With that in mind, Your Honors, thank you.
William H. Rehnquist: Thank you, Mr. Pearson. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.