author: Mr. Justice White

text:
    UNITED STATES v. MAINE et al.
    No. 35,
    Orig.
    Argued February 24-25, 1975
    Decided March 17, 1975

      Solicitor General Bork argued the cause for the United States. With him on the brief were Assistant Attorney General Johnson, Deputy Solicitor General Wallace, Keith A. Jones, and Bruce C. Rashkow.

      Brice M. Clagett argued the cause for defendants. With him on the briefs for the Common Counsel States were Michael Boudin, W. Laird Stabler, Jr., Attorney General, and Charles Brandt, Assistant Attorney General of Delaware, Jon A. Lund, Attorney General, and Lee M. Schepps, Assistant Attorney General of Maine, Francis B. Burch, Attorney General, and Henry R. Lord, Deputy Attorney General of Maryland, Robert H. Quinn, former Attorney General, Francis X. Bellotti, Attorney General, and Henry Herrmann, Special Assistant Attorney General of Massachusetts, Warren B. Rudman, Attorney General, and David H. Souter, Deputy Attorney General of New Hampshire, William F. Hyland, Attorney General, and Elias Abelson, Assistant Attorney General of New Jersey, Louis J. Lefkowitz, Attorney General, and Joseph T. Hopkins, Assistant Attorney General of New York, Richard J. Israel, Attorney General, and W. Slater Allen, Jr., Assistant Attorney General of Rhode Island, Andrew P. Miller, Attorney General, and Gerald L. Baliles, Deputy Attorney General of Virginia. On the brief for defendants the States of North Carolina et al. were Rufus Ed-misten, Attorney General, and Jean A. Benoy, Deputy Attorney General of North Carolina, Daniel R. McLeod, Attorney General, and Edward B. Latimer, Assistant Attorney General of South Carolina, and Arthur K. Bolton, Attorney General, and Alfred L. Evans, Jr., Assistant Attorney General of Georgia.

      Briefs of amici curiae were filed by William J. Guste, Jr., Attorney General of Louisiana, Norman C. Gorsuch, Attorney General of Alaska, Slade Gorton, Attorney General of Washington, John L. Hill, Attorney General of Texas, Daniel R. McLeod, Attorney General of South Carolina, Andrew P. Miller, Attorney General of Virginia, Robert H. Quinn, former Attorney General of Massachusetts, and Evelle J. Younger, Attorney General of California; and by Frederick Moring for the Associated Gas Distributors.

   Mr. Justice White

delivered the opinion of the Court.

Seeking to invoke the jurisdiction of this Court under Art. Ill, § 2, of the Constitution and 28 U. S. C. § 1251 (b), the United States in April 1969 asked leave to file a complaint against the 13 States bordering on the Atlantic Ocean — Maine, New Hampshire, Massachusetts, Rhode Island, New York, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, and Florida. We granted leave to file, 395 U. S. 955, on June 16, 1969. The complaint asserted a separate cause of action against each of the States which alleged that:

“[T]he United States is now entitled, to the exclusion of the defendant State, to exercise sovereign rights over the seabed and subsoil underlying the Atlantic Ocean, lying more than three geographical miles seaward from the ordinary low-water mark and from the outer limit of inland waters on the coast, extending seaward to the outer edge of the continental shelf, for the purpose of exploring the area and exploiting its natural resources.”

It was further alleged that each of the States claimed some right or title to the relevant area and was interfering with the rights of the United States. It was therefore prayed that a decree be entered declaring the rights of the United States and that such further relief be awarded as might prove proper.

The defendants answered, each generally denying proprietary rights of the United States in the seabed in the area beyond the three-mile marginal sea. Each of them, except Florida, claimed for itself, as successor in title to certain grantees of the Crown of England (and in the case of New York, to the Crown of Holland), the exclusive right of dominion and control over the seabed underlying the Atlantic Ocean seaward from its coastline to the limits of the jurisdiction of the United States, asserting as well that any attempt by the United States to interfere with these rights would in itself violate the Constitution of the United States.

Without acting on the motion for judgment filed by the United States that asserted that there was no material issue of fact to be resolved, we entered an order appointing the Honorable Albert B. Maris as Special Master and referred the case to him with authority to request further pleadings, to summon witnesses, and to take such evidence and submit such reports as he might deem appropriate. 398 U. S. 947 (1970). Before the Special Master, the United States contended that based on United States v. California, 332 U. S. 19 (1947), United States v. Louisiana, 339 U. S. 699 (1950), and United States v. Texas, 339 U. S. 707 (1950), it was entitled to judgment in accordance with its motion. The defendant States asserted that their cases were distinguishable from the prior cases and that in any event, California, Louisiana, and Texas were erroneously decided and should be overruled. They offered, and the Special Master received, voluminous documentary evidence to support their claims that, contrary to the Court's prior decisions, they acquired dominion over the offshore seabed prior to the adoption of the Constitution and at no time relinquished it to the United States. At the conclusion of the proceeding before him, the Special Master submitted a Report (hereinafter Report) which the United States supports in all respects, but to which the States have submitted extensive and detailed exceptions. The controversy is now before us on the Report, the exceptions to it, and the briefs and oral arguments of the parties.

In his Report, the Special Master concluded that the California, Louisiana, and Texas cases, which he deemed binding on him, governed this case and required that judgment be entered for the United States. Assuming, however, that those cases were open to re-examination, the Special Master went on independently to examine the legal and factual contentions of the States and concluded that they were without merit and that the Court’s prior cases should be reaffirmed.

We fully agree with the Special Master that California,. Louisiana, and Texas rule the issues before us. We also decline to overrule those cases as the defendant States request us to do.

United States v. California, supra, involved an original action brought in this Court by the United States seeking a decree declaring its paramount rights, to the exclusion of California, to the seabed underlying the Pacific Ocean and extending three miles from the coastline and from the seaward limits of the State’s inland waters. California answered, claiming ownership of the disputed seabed. The basis of its claim, as the Court described it, was that the three-mile belt lay within the historic boundaries of the State; “that the original thirteen states acquired from the Crown of England title to all lands within their boundaries under navigable waters, including a three-mile belt in adjacent seas; and that since California was admitted as a state on an 'equal footing' with the original states, California at that time became vested with title to all such lands.” 332 U. S., at 23. The Court rejected California’s claim. The original Colonies had not “separately acquired ownership to the three-mile belt or the soil under it, even if they did acquire elements of the sovereignty of the English Crown by their revolution against it.” Id., at 31. As the Court viewed our history, dominion over the marginal sea was first accomplished by the National Government rather than by the Colonies or by the States. Moreover, the Court went on to hold that the “protection and control of [the marginal sea] has been and is a function of national external sovereignty,” id., at 34, and that in our constitutional system paramount rights over the ocean waters and their seabed were vested in the Federal Government.

The United States later brought actions to confirm its title to the seabed adjacent to the coastline of other States'. United States v. Louisiana, supra, was one of them. There Louisiana claimed title to the seabed under waters extending 27 miles into the Gulf of Mexico, the basis of the claim being that before and since the time of its admission to the Union, Louisiana had exercised dominion over the ocean area in question and that its legislature had formally included the 27-mile belt within the boundaries of the State. The Court gave judgment for the United States, holding that United States v. California was controlling and emphasizing that paramount rights in the marginal sea and seabed were incidents of national sovereignty:

“As we pointed out in United States v. California, the issue in this class of litigation does not turn on title or ownership in the conventional sense. California, like the thirteen original colonies, never acquired ownership in the marginal sea. The claim to our three-mile belt was first asserted by the national government. Protection and control of the area are indeed functions of national external sovereignty. 332 U. S. pp. 31-34. The marginal sea is a national, not a state concern. National interests, national responsibilities, national concerns are involved. The problems of commerce, national defense, relations with other powers, war and peace focus there. National rights must therefore be paramount in that area.” 339 U. S., at 704.

Louisiana had “no stronger claim to ownership of the marginal sea than the original thirteen colonies or California had,” id., at 705; and its claim, like theirs, gave way to the overriding rule that “the three-mile belt is in the domain of the Nation rather than that of the separate States,” ibid. A fortiori, the waters and seabed beyond that limit were governed by the same rule.

In a companion case, United States v. Texas, supra, the Court again reaffirmed the holding and rationale of United States v. California and again rejected the claims of the State based on its historic boundaries at the time of the State’s admission to the Union:

“If the property, whatever it may be, lies seaward of low-water mark, its use, disposition, management, and control involve national interests and national responsibilities. That is the source of national rights in it. Such is the rationale of the California decision which we have applied to Louisiana’s case. The same result must be reached here if 'equal footing’ with the various States is to be achieved. Unless any claim or title which the Republic of Texas had to the marginal sea is subordinated to this full paramount power of the United States on admission, there is or may be in practical effect a subtraction in favor of Texas from the national sovereignty of the United States. Yet neither the original thirteen States (United States v. California, supra, pp. 31-32) nor California nor Louisiana enjoys such an advantage.” 339 U. S., at 719.

The Special Master was correct in concluding that these cases, unless they are to be overruled, completely dispose of the States' claims of ownership here. These decisions considered and expressly rejected the assertion that the original States were entitled to the seabed under the three-mile marginal sea. They also held that under our constitutional arrangement paramount rights to the lands underlying the marginal sea are an incident to national sovereignty and that their control and disposition in the first instance are the business of the Federal Government rather than the States.

The States seriously contend that the prior cases, as well as the Special Master, were in error in denying that the original Colonies had substantial rights in the seabed prior to independence, and afterwards, by grant from or succession to the sovereignty of the Crown. Given the dual basis of the California decision, however, and of those that followed it, the States' claims of ownership prior to the adoption of the Constitution are not disposi-tive. Whatever interest the States might have had immediately prior to statehood, the Special Master was correct in reading the Court’s cases to hold that as a matter of “purely legal principle . . . the Constitution . . . allotted to the federal government jurisdiction over foreign commerce, foreign affairs and national defense” and that “it necessarily follows, as a matter of constitutional law, that as attributes of these external sovereign powers the federal government has paramount rights in the marginal sea.” Report 23.

United States v. Texas unmistakably declares this constitutional proposition. There, Texas claimed that prior to joining the Union, it was an independent sovereign with boundaries extending a substantial distance in the Gulf of Mexico — boundaries which Congress had allegedly recognized when Texas was admitted to the Union. In deciding against the State, the Court did not reject the prestatehood rights of Texas as it had the rights of the 13 Original States in the California case. On the contrary, the Court was quite willing to “assume that as a Republic she had not only full sovereignty over the marginal sea but ownership of it, of the land underlying it, and of all the riches which it held. In other words, we assume that it then had dominium and imperium in and over this belt which the United States now claims.” 339 U. S., at 717. Such prior ownership nevertheless did not survive becoming a member of the Union:

“When Texas came into the Union, she ceased to be an independent nation. She then became a sister State on an 'equal footing’ with all the other States. That act concededly entailed a relinquishment of some of her sovereignty. The United States then took her place as respects foreign commerce, the waging of war, the making of treaties, defense of the shores, and the like. In external affairs the United States became the sole and exclusive spokesman for the Nation. We hold that as an incident to the transfer of that sovereignty any claim that Texas may have had to the marginal sea was relinquished to the United States.” Id., at 717-718.

The Court stood squarely on the California and Louisiana cases for this conclusion; and in our view, the Special Master correctly read these authorities, unless they were to be overruled in all respects, as foreclosing the present efforts of the States to demonstrate error in the Court’s understanding of history in the California case.

Assuming the possibility, however, that the Court might re-examine the constitutional premise of California and similar cases, the Special Master proceeded, with admirable diligence and lucidity, to address the historical evidence presented by the States aimed primarily at establishing that the Colonies had legitimate claims to the marginal sea prior to independence and statehood and that the new States never surrendered these rights to the Federal Government. The Special Master’s ultimate conclusion was that the Court’s view of our history expressed in the California case was essentially correct and that if prior cases were open to re-examination, they should be reaffirmed in all respects.

We need not retrace the Special Master’s analysis of historical evidence, for we are firmly convinced that we should not undertake to re-examine the constitutional underpinnings of the California case and of those cases which followed and explicated the rule that paramount rights to the offshore seabed inhere in the Federal Government as an incident of national sovereignty. That premise, as we have indicated, has been repeated time and again in the cases. It is also our view, contrary to the contentions of the States, that the premise was embraced rather than repudiated by Congress in the Submerged Lands Act of 1953, 67 Stat. 29, 43 U. S. C. § 1301. In that legislation, it is true, Congress transferred to the States the rights to the seabed underlying the marginal sea; however, this transfer was in no wise inconsistent with paramount national power but was merely an exercise of that authority. As the Special Master said, the Court in its prior cases “did not indicate that the federal government by Act of Congress might not, as it did by the subsequently enacted Submerged Lands Act, grant to the riparian states rights to the resources of the federal area, subject to the reservation by the federal government of its rights and powers of regulation and control for purposes of commerce, navigation, national defense, and international affairs.” Report 16. The question before the Court in the California case was “whether the state or the Federal Government has the paramount right and power to determine in the first instance when, how, and by what agencies, foreign or domestic, the oil and other resources of the soil of the marginal sea, known or hereafter discovered, may be exploited.” 332 U. S., at 29. The decision there was that the National Government had the power at issue, the Court declining to speculate that “Congress, which has constitutional control over Government property, will execute its powers in such a way as to bring about injustices to states, their subdivisions, or persons acting pursuant to their permission.” Id., at 40.

The Submerged Lands Act did indeed grant to the States dominion over the offshore seabed within the limits defined in the Act and released the States from any liability to account for any prior income received from state leases that had been granted with respect to the marginal sea. But in further exercise of paramount national authority, the Act expressly declared that nothing in the Act

“shall be deemed to affect in any wise the rights of the United States to the natural resources of that portion of the subsoil and seabed of the Continental Shelf lying seaward and outside of [the marginal sea], all of which natural resources appertain to the United States, and the jurisdiction and control of which by the United States is confirmed.” 43 U. S. C. § 1302.

This declaration by Congress is squarely at odds with the assertions of the States in the present case. So, too, is the provision of the Act by which the grant to the States is expressly limited to the seabed within three miles (or three marine leagues in some cases) of the coastline, whether or not the States' historic boundaries might extend farther into the ocean. § 1301 (b). Moreover, in the course of litigation dealing with the reach and impact of the Act, the Court has said as plainly as may be that “the Act concededly did not impair the validity of the California, Louisiana, and Texas cases, which are admittedly applicable to all coastal States ....” United States v. Louisiana, 363 U. S. 1, 7 (1960); see also id., at 83 n. 140. We agree with the Special Master when he said: “It is quite obvious that Congress could reserve to the federal government all the rights to the seabed of the continental shelf beyond the three-mile territorial belt of sea (or three leagues in the case of certain Gulf states) only upon the basis that it already had the paramount right to that seabed under the rule laid down in the California case.” Report 19.

Congress emphatically implemented its view that the United States has paramount rights to the seabed beyond the three-mile limit when a few months later it enacted the Outer Continental Shelf Lands Act of 1953, 67 Stat. 462, 43 U. S. C. § 1331 et seq. Section 3 of the Act

“declared [it] to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this subchapter.” 43 U. S. C. § 1332 (a).

The Act then proceeds to set out detailed provisions for the exercise of exclusive jurisdiction in the area and for the leasing and development of the resources of the seabed.

Of course, the defendant States were not parties to United States v. California or to the relevant decisions, and they are not precluded by res judicata from litigating the issues decided by those cases. But the doctrine of stare decisis is still a powerful force in our jurisprudence ; and although on occasion the Court has declared — and acted accordingly — that constitutional decisions are open to re-examination, we are convinced that the doctrine has peculiar force and relevance in the present context. It is apparent that in the almost 30 years since California, a great deal of public and private business has been transacted in accordance with those decisions and in accordance with major legislation enacted by Congress, a principal purpose of which was to resolve the “interminable litigation” arising over the controversy of the ownership of the lands underlying the marginal sea. See H. R. Rep. No. 215, 83d Cong., 1st Sess., 2 (1953). Both the Submerged Lands Act and the Outer Continental Shelf Lands Act which soon followed proceeded from the premises established by prior Court decisions and provided for the orderly development of offshore resources. Since 1953, when this legislation was enacted, 33 lease sales have been held, in which 1,940 leases, embracing over eight million acres, have been issued. The Outer Continental Shelf, since 1953, has yielded over three billion barrels of oil, 19 trillion m.c.f. of natural gas, 13 million long tons of sulfur, and over four million long tons of salt. In 1973 alone, 1,081,000 barrels of oil and 8.9 billion cubic feet of natural gas were extracted daily from the Outer Continental Shelf. Exploitation of our resources offshore implicates a broad range of federal legislation, ranging from the Longshoremen’s and Harbor Workers’ Compensation Act, incorporated into the Outer Continental Shelf Lands Act, to the more recent Coastal Zone Management Act. We are quite sure that it would be inappropriate to disturb our prior cases, major legislation, and many years of commercial activity by calling into question, at this date, the constitutional premise of prior decisions. We add only that the Atlantic States, by virtue- of the California, Louisiana, and Texas cases, as well as by reason of the Submerged Lands Act, have been on notice of the substantial body of authoritative law, both constitutional and statutory, which is squarely at odds with their claims to the seabed beyond the three-mile marginal sea. Neither the States nor their putative lessees have been in the slightest misled. Judgment shall be entered for the United States.

So ordered.

Mr. Justice Douglas took no part in the consideration or decision of this case.

       The State of Connecticut was not made a defendant, apparently because that State borders on Long Island Sound, which is considered inland water rather than open sea.

       The United States also demanded an accounting for all sums that the States may have derived from the area in question. This claim the Special Master recommends be denied for failure of proof. The United States does not except to this recommendation, and we approve it.

       The State of Florida claimed that by virtue of the Act of June 25, 1868, 15 Stat. 73, Congress had approved the maritime boundaries for that State which at certain places included more than three miles of the Atlantic Ocean and had thereby granted to the State all of the seabed within those boundaries. Florida also claimed in its answer that the Florida Straits were not in the Atlantic Ocean as claimed by the United States but in the Gulf of Mexico. Subsequently, the controversy between the United States and Florida was severed and consolidated with the proceeding in No. 9, Original, which was then concerned with the seabed rights of the State of Florida in the Gulf of Mexico, 403 U. S. 949, 950 (1971). The consolidated proceedings were given a new number — No. 52, Original. We have acted on the Special Master's Report in that case. See post, p. 531.

       The States of Rhode Island, North Carolina, and Georgia each submitted an additional special defense applicable only to itself. We agree with the Special Master’s rejection of these special defenses, and they will not be mentioned further.

       The Submerged Lands Act was held constitutional in Alabama v. Texas, 347 U. S. 272 (1954).

       S. Rep. No. 93-1140, p. 4 (1974).

        Id., at 5.

       86 Stat. 1280, 16 U. S. C. § 1451 et seq. (1970 ed., Supp. II). For a summary of legislation affecting the Outer Continental Shelf, see Outer Continental Shelf Oil and Gas Development and the Coastal Zone, Senate Committee on Commerce, 93d Cong., 2d Sess., 55-58 (Comm. Print 1974).

       We have long held that the doctrine of stare decisis carries particular force where the effect of re-examination of a prior rule would be to overturn long-accepted commercial practice. See, e. g., M’Gruder v. Bank of Washington, 9 Wheat. 598, 602 (1824); Rock Spring Distilling Co. v. W. A. Gaines & Co., 246 U. S. 312, 320 (1918).


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES v. LOUISIANA et al. (LOUISIANA BOUNDARY CASE)
    No. 9,
    Orig.
    Argued February 24, 1975
    Decided March 17, 1975

      Louis F. Claiborne argued the cause for the United States. With him on the briefs were Solicitor General Bork, Assistant Attorney General Johnson, and Bruce C. Rashkow.

      Oliver P. Stockwell and Frederick W. Ellis, Special Assistant Attorneys General of Louisiana, argued the cause for defendants. With them on the briefs were William J. Guste, Jr., Attorney General, and Paul M. Hebert, Victor A. Sachse, and William E. Shaddock, Special Assistant Attorneys General.
   Decree.

Upon consideration of the Report filed July 31, 1974, by Walter P. Armstrong, Jr., Special Master, of the exceptions filed thereto by the United States and by the State of Louisiana, and after oral argument thereon, It Is Now Ordered, Adjudged, and Decreed as Follows:

1. The exceptions filed by the United States to the Report and recommendations of the Special Master are overruled.

2. The exceptions filed by the State of Louisiana to the Report and recommendations of the Special Master are overruled.

3. The recommendations contained dn the Report of the Special Master are accepted.

4. The parties are directed to prepare and file a decree, for entry by this Court, establishing “a baseline along the entire coast of the State of Louisiana from which the extent of the territorial waters under the jurisdiction of the State of Louisiana pursuant to the Submerged Lands Act can be measured.” Report of the Special Master 53. If the parties cannot agree upon the form of the decree, then they shall refer any remaining disputes to the Special Master for his recommendations. In the event of such a referral, the Special Master is authorized to hold such hearings, take such evidence, and conduct such proceedings as he may deem appropriate and, in due course, to report his recommendations to this Court.

It is so ordered.

Mr. Justice Douglas and Mr. Justice Maeshall took no part in the consideration or decision of this case.


author: Per Curiam.

text:
    UNITED STATES v. FLORIDA
    No. 52,
    Orig.
    Argued February 25, 1975
    Decided March 17, 1975

      Keith A. Jones argued the cause for the United States. With him on the briefs were Solicitor General Bork, Assistant Attorney General Johnson, Bruce C. Rashkow, and Michael W. Reed.

      Robert L. Shevin, Attorney General of Florida, argued the cause for defendant. With him on the briefs were W. Robert Olive, Jr., Special Assistant Attorney General, and Daniel S. Dearing.

        Brice M. Clagett, Michael Boudin, W. Laird Stabler, Jr., Attorney General, and Jerome O. Herlihy, Chief Deputy Attorney General of Delaware, Arthur K. Bolton, Attorney General, and Alfred L. Evans, Jr., Assistant Attorney General of Georgia, Jon A. Lund, Attorney General, and Lee M. Schepps, Assistant Attorney General of Maine, Francis B. Burch, Attorney General, and Henry B. Lord, Deputy Attorney General of Maryland, Robert H. Quinn, former Attorney General, and Henry Herrmann, Special Assistant Attorney General of Massachusetts, Warren B. Budman, Attorney General, and David H. Souter, Deputy Attorney General of New Hampshire, William F. Hyland, Attorney General, and Elias Abelson, Assistant Attorney General of New Jersey, Louis J. Lefkowitz, Attorney General, and Joseph T. Hopkins, Assistant Attorney General of New York, Robert Morgan, Attorney General, and Jean A. Benoy,
        Deputy Attorney General of North Carolina, Richard J. Israel, Attorney General, and W. Slater Allen, Jr., Assistant Attorney General of Rhode Island, Daniel R. McLeod, Attorney General, and Edward B. Latimer, Assistant Attorney General of South Carolina, Andrew P. Miller, Attorney General, and Gerald L. Baliles, Deputy Attorney General of Virginia, filed a brief for the State of Delaware et al. as amici curiae.

   Per Curiam.

Before the Court for consideration are the exceptions of the State of Florida and of the United States to the Report of the Special Master filed February 19, 1974. Oral argument has been had.

The case consolidates two proceedings. In the first, the United States seeks a decree defining the seaward boundary of the submerged lands of the Continental Shelf in the Atlantic Ocean in which Florida has rights to the natural resources. 395 U. S. 955 (1969). In the second, the State of Florida and the United States seek a decree defining more specifically than does the decree entered in United States v. Louisiana, 364 U. S. 502 (1960), the seaward boundary of the submerged lands of the Continental Shelf in the Gulf of Mexico in which Florida has rights to the natural resources. 403 U. S. 949 (1971).

In its exceptions to the Report, the State of Florida maintains that in his recommendations the Special Master should have recognized that the said boundaries extend to the boundaries defined in the State's 1868 Constitution, rather than to the limits specified in the Submerged Lands Act of 1953, § 2 (b), 67 Stat. 29, 43 U. S. C. § 1301 (b); that the Special Master should have recognized that the Florida Keys and the Straits of Florida southwest of longitude 25°40' N. are part of the Gulf of Mexico, rather than of the Atlantic Ocean; that the Special Master erred in construing the 1868 Constitution of the State as to its Atlantic Ocean boundary and as to its boundary between the Dry Tortugas Islands and Cape Romano; and that the Special Master erred in failing to recognize “Florida Bay” as a historic bay and thus as inland waters of the State.

Having considered each of these exceptions, we conclude that they are correctly answered in the Report of the Special Master. The exceptions of the State of Florida are therefore overruled.

In its exceptions to the Report, the United States maintains that the Special Master erred in recommending the recognition of a portion of Florida Bay as a “juridical” bay, and in recommending the drawing of “closing lines” around three groups of islands that make up the Florida Keys. It appears that these recommendations of the Special Master were made without benefit of the contentions now advanced by the United States and the opposing contentions now presented by the State of Florida. The exceptions of the United States are therefore referred to the Special Master for his prompt consideration. He is authorized to conduct any supplemental proceedings he may find useful with respect to the exceptions of the United States and is requested to file a supplemental report restricted to the issues raised in those exceptions.

It is so ordered.

Mr. Justice Douglas took no part in the consideration or decision of this case.


author: Per Curiam. Mr. Justice Stewart,

text:
    ESTELLE, CORRECTIONS DIRECTOR v. DORROUGH
    No. 74-479.
    Decided March 17, 1975
   Per Curiam.

Respondent Jerry Mack Dorrough was convicted in 1963 in a Texas District Court of robbery and sentenced to a term of imprisonment for 25 years. After he was sentenced and had filed an appeal to the Texas Court of Criminal Appeals, he escaped from the Dallas County jail by stealing a federal mail truck. He was recaptured two days after his escape. After his recapture, the Texas Court of Criminal Appeals removed his appeal from its docket pursuant to the provisions of Texas Code of Criminal Procedure Ann., Art. 44.09 (1966), which provides for the automatic dismissal of such pending appeals by an escaped felon upon escape with provision for reinstatement of the appeal if the felon voluntarily surrenders within 10 days of his escape.

After recapture, respondent was tried and convicted on federal charges and given a 25-year federal sentence which he is currently serving. The State of Texas has filed a detainer warrant with federal authorities against Dor-rough in order to compel him to serve the remainder of his state sentence upon release from federal custody. In 1972, respondent filed in the United States District Court for the Northern District of Texas a complaint which was treated by that court as a petition for writ of habeas corpus, alleging that the 1963 dismissal of his appeal under Art. 44.09 denied him equal protection of the law in violation of the Fourteenth Amendment. The United States District Court denied relief, holding that Art. 44.09 was a rational exercise of legislative power. The United States Court of Appeals for the Fifth Circuit reversed. It held that Art. 44.09 denied respondent equal protection of the law, and ordered that the State's de-tainer warrant would be voided unless Texas provided respondent with either a direct appeal or a new trial. Petitioner has now sought review by certiorari, pursuant to 28 U. S. C. § 1254 (1), of the judgment of the Court of Appeals. For the reasons stated, we grant the writ and reverse the judgment.

The Court of Appeals correctly recognized that there is no federal constitutional right to state appellate review of state criminal convictions. McKane v. Durston, 153 U. S. 684, 687 (1894); Griffin v. Illinois, 351 U. S. 12, 18 (1956); Ross v. Moffitt, 417 U. S. 600, 610-611 (1974). Disposition .by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law. 18 Geo. Wash. L. Rev. 427, 429 (1950). This Court itself has long followed the practice of declining to review the convictions of escaped criminal defendants. Smith v. United States, 94 U. S. 97 (1876) ; Bonahan v. Nebraska, 125 U. S. 692 (1887); Eisler v. United States, 338 U. S. 189 (1949); id., at 883; cf. Allen v. Rose, 419 U. S. 1080 (1974). Thus in Molinaro v. New Jersey, 396 U. S. 365 (1970), we dismissed the appeal of an escaped criminal defendant, stating that no persuasive reason exists to adjudicate the merits of such a case and that an escape “disentitles the defendant to call upon the resources of the Court for determination of his claims.” Id., at 366. In Allen v. Georgia, 166 U. S. 138 (1897), we upheld as against a constitutional due process attack a state court’s dismissal of the appeal of an escaped prisoner and its refusal to reinstate the appeal upon his later recapture. See also National Union v. Arnold, 348 U. S. 37,43 (1954).

The Texas courts have found similar ends served by Art. 44.09. It discourages the felony of escape and encourages voluntary surrenders. It promotes the efficient, dignified operation of the Texas Court of Criminal Appeals.

The Court of Appeals, however, found two classifications created by the statute to lack any rational relation to its purposes and hence concluded that the statute was unconstitutional as violative of the Equal Protection Clause. That court recognized that appeals from state criminal convictions are not “explicitly or implicitly guaranteed by the Constitution,” San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 33-34 (1973), and that this Court in dealing with equal protection challenges to state regulation of the right of appeal in criminal cases had applied the traditional rational-basis test. Rinaldi v. Yeager, 384 U. S. 305 (1966). There this Court said:

“ 'The Constitution does not require things which are different in fact ... to be treated in law as though they were the same.’ Tigner v. Texas, 310 U. S. 141, 147. Hence, legislation may impose special burdens upon defined classes in order to achieve permissible ends. But the Equal Protection Clause does require that, in defining a class subject to legislation, the distinctions that are drawn have 'some relevance to the purpose for which the classification is made.’ Baxstrom v. Herold, 383 U. S. 107, 111; Carrington v. Rash, 380 U. S. 89, 93; Louisville Gas Co. v. Coleman, 277 U. S. 32, 37; Royster Guano Co. v. Virginia, 253 U. S. 412, 415.” Id., at 309.

The Court of Appeals thought that this test rendered the statute invalid for two reasons. First, while the statute provides for reinstatement of the appeal of most escaped felons only if they voluntarily surrender within 10 days, the Texas Court of Criminal Appeals may in its discretion reinstate the appeals of prisoners under a sentence of life imprisonment or death if they are returned to custody within 30 days. Second, the statute applies only to those prisoners with appeals pending at the time of their escape; prisoners who have not invoked the appellate process by filing an appeal at the time of their escape may still appeal after recapture if applicable appellate time limits have not run. We disagree with the analysis of the Court of Appeals, and find that neither of these distinctions offends the Equal Protection Clause.

Insofar as the separate treatment of prisoners under a sentence of life imprisonment or death is concerned, we see no reason why the Texas Legislature was not free to separate these two most severe sentences from other terms of imprisonment, and provide an additional period of discretionary review for them but not for the remainder. The Court of Appeals determined that under Texas law a prisoner serving a sentence for a term greater than 60 years would not be eligible for parole any sooner than a prisoner under life sentence, and from that fact concluded that there could be no rational distinction between those serving a life term and those serving a term in excess of sixty years. 497 F. 2d 1007, 1012-1013. It is not altogether clear how respondent, who himself has been sentenced to 25 years, could assert the rights of those under term sentences of 60 years or more. But apart from this difficulty, we see no reason why the Texas Legislature could not focus on the actual severity of the sentence imposed in making distinctions, rather than on the collateral consequence of sentence elaborated by the Court of Appeals. The State of Texas could reasonably balance its concern with deterring escapes and encouraging surrenders with its alternative interest in allowing the validity of particularly severe sentences to be tested by appellate review. In doing so, it was not required to draw lines with “mathematical nicety.” Lindsley v. National Carbonic Gas Co., 220 U. S. 61, 78-79 (1911); Morey v. Doud, 354 U. S. 457, 463-64 (1957).

Nor do we find the statutory limitation of the dismissal requirement to those prisoners with appeals pending at the time of their escape violative of the Equal Protection Clause. The Court of Appeals felt that the statute was “underinclusive” for this reason, since a prisoner who had not invoked the appellate process by filing an appeal at the time of his escape might still appeal after recapture if the prescribed time for filing an appeal had not expired.

Criminal defendants in Texas are subject to relatively stringent time limits for filing their appeals. Since an escaped defendant cannot comply with the required appellate steps during the time he is not confined, these time limits serve much the same function as Art. 44.09. Whatever difference in treatment exists between the class of prisoners who escape, return, and are nonetheless able to file an appeal, and those whose appeals are dismissed pursuant to Art. 44.09, is sufficiently rational to withstand a challenge based on the Equal Protection Clause. Texas was free to deal more severely with those who simultaneously invoked the appellate process and escaped from its custody than with those who first escaped from its custody, returned, and then invoked the appellate process within the time permitted by law. While each class of prisoners sought to escape, the first did so in the very midst of their invocation of the appellate process, while the latter did so before returning to custody and commencing that process. If Texas is free to adopt a policy which deters escapes by prisoners, as all of our cases make clear that it is, it is likewise free to impose more severe sanctions on those whose escape is reasonably calculated to disrupt the very appellate process which they themselves have set in motion. Ross v. Moffitt, 417 U. S., at 610.

The motion of respondent for leave to proceed in forma pauperis and the petition for certiorari are granted, and the judgment of the Court of Appeals for the Fifth Circuit is

Reversed.

Me. Justice Douglas, dissenting, agrees with much of the dissenting opinion of Mr. Justice Stewart, but unlike him, would also affirm the judgment for the reasons stated by the Court of Appeals, 497 F. 2d 1007, 1012-1014 (CA5 1974).

Mr. Justice Stewart,

with whom Mr. Justice Brennan and Mr. Justice Marshall join,

dissenting.

If the shortcomings of the challenged Texas statute were only those addressed by the Court, I could join the Court’s opinion. For I agree that Art. 44.09 is not rendered unconstitutional by its more lenient treatment of escaped felons under sentence of death or life imprisonment, nor by its asserted “underinclusive” inapplicability to a felon who escapes and is returned to custody involuntarily before his appeal is filed. But I think the Court has failed to come to grips with the real constitutional defect in the challenged statute.

In summarily reversing the judgment before us the Court relies upon decisions establishing the long-settled “practice of declining to review the convictions of escaped criminal defendants.” Ante, at 537. See Smith v. United States, 94 U. S. 97 (1876); Bonahan v. Nebraska, 125 U. S. 692 (1887); Molinaro v. New Jersey, 396 U. S. 365 (1970). See also Allen v. Georgia, 166 U. S. 138 (1897). But these decisions have universally been understood to mean only that a court may properly dismiss an appeal of a fugitive convict when, and because, he is not within the custody and control of the court. Until today, this Court has never intimated that under the rule of Smith, Bonahan, and Molinaro a court might dismiss an appeal of an escaped criminal defendant at a time when he has been returned to custody, and thus to the court’s power and control.

The rationale for the dismissal of an appeal when the appellant is at large is clearly stated in the Smith decision:

“It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render. In this case it is admitted that the plaintiff in error has escaped, and is not within the control of the court below, either actually, by being in custody, or constructively, by being out on bail. If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case.” 94 U. S., at 97.

See also Bonahan v. Nebraska, 125 U. S. 692 (1887).

Here, as the Court notes, Dorrough was recaptured two days after his flight. And, as the Court also notes, his appeal was dismissed after his recapture. In this situation, the rule of Smith-Bonahan-Molinaro provides no support whatever for the Texas law that deprived Dorrough of his right to appeal.

If the challenged statute can be sustained, it must rest upon the alternative ground advanced by the Court— that, as a punitive and deterrent measure enacted in the exercise of the State’s police power, it “discourages the felony of escape and encourages voluntary surrenders.” But the statute imposes totally irrational punishments upon those subject to its application. If an escaped felon has been convicted in violation of law, the loss of his right to appeal results in his serving a sentence that under law was erroneously imposed. If, on the other hand, his trial was free of reversible error, the loss of his right to appeal results in no punishment at all. And those whose convictions would have been reversed if their appeals had not been dismissed serve totally disparate sentences, dependent not upon the circumstances of their escape, but upon whatever sentences may have been meted out under their invalid convictions. In my view, this random pattern of punishment cannot be considered a rational means of enforcing the State’s interest in deterring and punishing escapes. Cf. McLaughlin v. Florida, 379 U. S. 184, 191 (1964); Rinaldi v. Yeager, 384 U. S. 305, 309 (1966); U. S. Dept. of Agriculture v. Moreno, 413 U. S. 528, 538 (1973).

A closely analogous case was considered by the Supreme Court of Idaho in In re Mallon, 16 Idaho 737, 740-741, 102 P. 374 (1909). There the court considered a statute providing:

“ ‘. . . Every state prisoner confined in the state prison for a term less than for life, who escapes therefrom, is punishable by imprisonment in the state prison for a term equal in length to the term he was serving at the time of such escape; said second term of imprisonment to commence from the time he would otherwise have been discharged from said prison.’ ”

The court concluded that the statute at issue was unconstitutional. Similarly the Supreme Court of Kansas in State v. Lewin, 53 Kan. 679, 37 P. 168 (1894), held unconstitutional a statute providing that upon escape a convict was to be punished by imposition of the full term of the sentence under which he had initially been imprisoned, without credit for any time served before the escape.

Under these Idaho and Kansas statutes, two men escaping at the same time and in the same manner could receive wholly different sentences, not related at all to the gravity of the offense of escape. That is precisely the vice of the Texas statute at issue in the present case.

I would affirm the judgment of the Court of Appeals.

       Texas Code of Criminal Procedure Ann., Art. 44.09, provides:
      “If the defendant, pending an appeal in the felony case, makes his escape from custody, the jurisdiction of ’the Court of Criminal Appeals shall no longer attach in the case. Upon the fact of such escape being made to appear, the court shall, on motion of the State’s attorney, dismiss the appeal; but the order dismissing the appeal shall be set aside if it is made to appear that the defendant has voluntarily returned within ten days to the custody of the officer from whom he escaped; and in cases where the punishment inflicted by the jury is death or confinement in an institution operated by the Department of Corrections for life, the court may in its discretion reinstate the appeal if the defendant is recaptured or voluntarily surrenders within thirty days after such escape.”
      This provision was adopted by Texas in 1879 replacing a somewhat similar common-law rule discussed in Ex parte Wood, 19 Tex. Ct. App. 46 (1885). The clause authorizing discretionary reinstatement of an appeal from a sentence of death or life imprisonment was added by amendment in 1933. Laws 1933, c. 34. Since the statute provides that jurisdiction shall “no longer attach” upon escape, the escape itself divests the court of jurisdiction with later dismissal being a mere formality. Lafferty v. State, 123 Tex. Cr. R. 570, 60 S. W. 2d 222 (1933); Ex parte Gurley, 104 Tex. Cr. R. 578, 286 S. W. 222 (1926).

        Braden v. 30th Judicial Circuit Court of Kentucky, 410 U. S. 484 (1973), indicates that one under a state detainer warrant is considered to be in custody for the purpose of federal habeas relief. The District Court concluded that respondent had properly exhausted his state remedies, and the petitioner did not urge failure of exhaustion in the Court of Appeals.

       The only contention presented to the District Court as evidenced by its opinion was the constitutionality of Art. 44.09 discussed herein. Respondent seeks here to raise other issues not raised below, at least some of which were considered and rejected by other courts during the course of his five prior actions in the federal system. See 327 F. 2d 667 (CA5 1964); 344 F. 2d 125 (CA5 1965); 397 F. 2d 811 (CA5), cert. denied, 394 U. S. 1019 (1969); 440 F. 2d 1063 (CA5), cert. denied, 404 U. S. 840 (1971); 440 F. 2d 1336 (CA5), cert. denied, 404 U. S. 915 (1971).

       The decision of the District Court is unreported. The decision of the Court of Appeals is reported at 497 F. 2d 1007.

        Rodriguez v. State, 457 S. W. 2d 555, 556 (Tex. Crim. App. 1970).

        Loyd v. State, 19 Tex. Ct. App. R. 137, 155 (1885). See also 18 Geo. Wash. L. Rev. 427, 430 (1950).

       497 F. 2d, at 1012-1013. The court below specifically rejected the notion that immediate dismissal with refusal to reinstate appeals of escaped defendants was constitutionally objectionable and rested its decision wholly on the asserted lack of rational connection between the statutory classifications and the statute’s purposes.
      But our Brother StewaRT resurrects this rejected argument and adopts it in his dissent, saying that the Texas statute may not rationally be said to discourage the felony of escapo and encourage voluntary surrender. Such a judgment, of course, is one in the first instance for the legislature, Williamson v. Lee Optical Co., 348 U. S. 483 (1955), and we may strike down such a legislative judgment only if we conclude that it is indeed irrational. We do not believe that it is. Nor is it accurate to suggest that the only purpose served by the Texas statute is the deterrence of escapes: it is also designed to secure the State’s interest in orderly judicial procedure. The right of appeal from a judgment of conviction in both the federal and state systems is almost uniformly conditioned, for example, upon the filing of a notice of appeal within a prescribed time limit. See Fed. Rule App. Proc. 4 (b); n. 10, infra. The vindication of orderly procedure secured by the Texas statute under attack here is no less a permissible choice for the legislature than is the vindication of that interest by such procedural requirements. In a case indistinguishable from the present one on this issue, this Court in Allen v. Georgia, 166 U. S. 138, 141 (1897), upheld the refusal of the Georgia courts to reinstate the appeal of a recaptured prisoner, stating that “it seems but a light punishment for such offence to hold” that he has abandoned such appeal.

       See n. 1, supra. The statute merely allows the court in its discretion to reinstate such appeals. In the past, the court has both granted leave to reinstate and refused it under a test of “good cause shown.” Bland v. State, 224 S. W. 2d 479 (Tex. Crim. App. 1949); Foster v. State, 497 S. W. 2d 291 (Tex. Crim. App. 1973).

       Cf. United States v. Raines, 362 U. S. 17, 21-24 (1960).

       See Tex. Code of Crim. Proc. Ann., Arts. 40.05, 40.09 (1966 ed., and Supp. 1974-1975), 44.08 et seq. For example, in the cases cited by the lower court as involving pre-appeal escapes with subsequent appeals, the appellants forfeited substantially all of their appeal rights through failure to file a timely record or bill of exceptions. Webb v. State, 460 S. W. 2d 903 (Tex. Crim. App. 1970); McGee v. State, 445 S. W. 2d 187 (Tex. Crim. App. 1969). In Texas the trial judge has the power to file the record with the Court of Criminal Appeals and if he does so prior to recapture of an escaped prisoner, the appeal is dismissed under Art. 44.09. Webb v. State, 449 S. W. 2d 230 (Tex. Crim. App. 1969); Redman v. State, 449 S. W. 2d 256 (Tex. Crim. App. 1970); Ballage v. State, 459 S. W. 2d 823 (Tex. Crim. App. 1970).

       The peculiar problems posed by escape of a prisoner during the ongoing appellate process were explored in Loyd v. State, 19 Tex. Ct. App. R., at 155, in the course of upholding the constitutionality of this statute:
      “[L]et us suppose that the convict, pending his appeal, should escape and remain at large twenty or thirty days; what disposition should be made of his appeal? . . . Should this court wait until his return to custody? How long must it wait? Until it suits the prisoner’s convenience? . . . [W]e are of the opinion that [Art. 44.09] is not only reasonable but eminently wise.”
      See also Allen v. Georgia, 166 U. S., at 141.

      The Court in Molinaro v. New Jersey relied upon a Note, 18 Geo. Wash. L. Rev. 427, 430 (1950), which is cited in the Court’s opinion today. Ante, at 537. The rule and its rationale are correctly stated in that Note: “A review of criminal appeal cases both in state and federal courts shows that when an appellant has escaped from custody and cannot be brought before the court, his case is not left pending indefinitely. In the absence of any statutory regulation, dismissal is granted in some form .... The basic theory behind all criminal cases has always been that there must be a defendant in the power and under the control of the court, and that there be someone who can respond to the judgment.” 18 Geo. Wash. L. Rev., at 428-429.