Island Airlines, Inc. v. CAB

• Decision Date: 29 October 1965
• Docket Number: No. 19752.,19752.
• Parties: ISLAND AIRLINES, INC., Appellant, v. CIVIL AERONAUTICS BOARD, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

352 F.2d 735 (1965)

ISLAND AIRLINES, INC., Appellant, v. CIVIL AERONAUTICS BOARD, Appellee.

No. 19752.

United States Court of Appeals Ninth Circuit.

October 29, 1965.

Frank D. Padgett, Robertson, Castle & Anthony, Honolulu, Hawaii, for appellant.

John W. Douglas, Asst. Atty. Gen., J. William Doolittle, Morton Hollander, John C. Eldridge, Attys., Dept. of Justice, Washington, D. C., Herman T. F. Lum, U. S. Atty., Honolulu, Hawaii, for appellee.

J. Russell Cades, Wm. M. Swope, Smith, Wild, Beebe & Cades, Honolulu, Hawaii, for intervenor Aloha Airlines, Inc.

Richard K. Sharpless, Lewis, Buck & Saunders, Allen M. Stack, Pratt, Moore, Bortz & Vitousek, Honolulu, Hawaii, for intervenor Hawaiian Airlines, Inc.

Before BARNES, JERTBERG and MERRILL, Circuit Judges.

BARNES, Circuit Judge:

The Civil Aeronautics Board in 1963 sought and obtained from the District Court of Hawaii a permanent injunction against the appellant Island Airlines, Inc. inter-island flights upon the ground the appellant was required to first obtain from the Federal Civil Aeronautics Board (before further operations between the respective Hawaiian Islands of Oahu, Maui, Kauai, Hawaii, Lanai and Molokai) a federal certificate of convenience and necessity authorizing such flights.

On appeal, this court remanded the matter to the district court with instructions to vacate its final decree, and enter new findings and a decree, determining what the boundaries of the State of Hawaii are. Island Airlines, Inc. v. Civil Aeronautics Board, 331 F.2d 207 (9th Cir. 1964).

After remand, the judgment was vacated; the two competing airlines (Hawaiian and Aloha Airlines) were permitted to intervene, and further hearings were had and additional evidence introduced. Thereafter the district court entered a new decision, reaffirming its previous findings and conclusions, and held the boundaries of Hawaii to be the Islands plus a three-mile belt around each. It enjoined all of appellant's inter-island flights. (235 F.Supp. 990 (D.Hawaii 1964).) This second appeal followed.

Jurisdiction below rested upon 49 U.S. C. §§ 1371 and 1487 and 28 U.S.C. § 1345; and here rests upon 28 U.S.C. §§ 1291 and 1294.

This cause was presented to this court on written briefs and oral argument, heard in Hawaii on April 15, 1965. On May 17, 1965, the Supreme Court of the United States rendered its opinion in United States v. State of California, 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed.2d 296 (No. 5 original, 1965), deciding several questions with respect to the seaward boundaries of California, with particular emphasis on the channel islands off Southern California, and the Farallones off Northern California. So that this court might have the benefit of counsel's views of the effect, if any of United States v. State of California on the instant action, this court on June 9, 1965, vacated the order of submission previously entered, and requested counsel to file simultaneous briefs. Both appellant and appellee filed such briefs; the two intervenors declining to file briefs. Upon receipt of the supplemental briefs this court again ordered the matter submitted, as of July 16, 1965.

We conclude we should affirm the decision of the district court. We think United States v. State of California, supra, supports our conclusion, if it does not require it. We think it necessary to discuss this case in some detail.

The 1965 decision of the Supreme Court (381 U.S. 139), was a continuation of an original suit filed in the Supreme Court in 1945 by the United States against the State of California under Art. III, § 2 of the United States Constitution. (United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947).) Involved was the ownership of valuable oil rights in submerged lands lying off the coast of California, between the low-water mark and the three mile limit. The federal government was held to have "paramount rights" in such land. A decree was later issued (332 U.S. at 804-806, 67 S.Ct. 1658) referring to the existence in the United States of "paramount rights in, and full dominion and power over, the lands * * * lying seaward of the ordinary low-water mark on the coast of California, and outside of the inland waters, extending seaward three nautical miles * * *," and granting "the injunctive relief prayed for in the complaint" which enjoined "California and all persons claiming under it" from trespassing thereon in violation of said rights.

The history of the proceeding is best described in the 1965 Supreme Court syllabus (381 U.S. at 139, 85 S.Ct. 1658):

"Thereafter the Court appointed a Special Master to determine for specific coastal segments the line of ordinary low water and the outer limit of inland waters. In his Report, filed in 1952, the Master based his definition of inland waters on that applied by the United States in its foreign relations as of the date of the 1947 decree. Both parties noted exceptions to the Report, but before any further action, the Submerged Lands Act was enacted in 1953. This Act gave the States ownership of the lands beneath navigable waters within their boundaries, including the seaward boundaries `as they existed at the time such State became a member of the Union,\' but in no event to be interpreted as extending from the `coast line\' more than three geographical miles into the Pacific Ocean. `Coast line\' was derivatively defined in terms of the seaward limit of `inland waters,\' a term not defined by the Act. No action was taken on the Master\'s Report until 1963, when the United States filed an amended complaint reviving the Report and redescribing the issues as modified by the Submerged Lands Act."

In this amended complaint, the United States contended that the Submerged Lands Act "simply moved the line out three miles from the line established by the 1947 decree, while California asserts that `inland waters' as used in the Act means not what the United States would claim as such in international relations but what the States historically considered to be inland when they joined the Union."

The Supreme Court then decided (1) that Congress, by eliminating the definition of inland waters from the Submerged Land Act intended to leave the meaning of the term to the courts, independently of the Act; (2) that the definition of "inland waters," as used in the Act, should conform to the "Convention on the Territorial Sea and the Contiguous Zone," to which the United States became a party in 1961, and which became effective as to the United States on September 10, 1964. In note 25 (381 U.S. at 162 n. 25, 85 S.Ct. at 1414) the opinion states that the 1947 decision "established that landlocked waters not a part of the open sea are not part of the marginal belt, and belong to the States." (Emphasis added.) The "only problem remaining * * * was that of determining where the open sea ends and the landlocked waters begin."

The Special Master appointed under the 1947 decision decided the question was controlled by the foreign policy position of the United States on the date of the California 1947 decree, i. e., October 27, 1947. That position, he found, was that a bay was inland water only if a closing line could be drawn across its mouth less than ten miles long enclosing a sufficient water area to satisfy the so-called Boggs formula, as to the sufficiency of the depth of bays. (Cf. 381 U.S. at 163 n. 27, 85 S.Ct. 1401.) But the Convention permits use of a different formula: a straight baseline method — with a twenty-four mile maximum closing line for bays and a "semi-circle" test for testing the sufficiency of the water area enclosed. The semi-circle test¹ and the twenty-four mile closing line "unquestionably * * * now represents the position of the United States." (381 U.S. at 164, 85 S.Ct. at 1415.) And this position and the 1964 Supreme Court opinion "freezes" the meaning of "inland waters" in terms of the Convention.

The "subsidiary issues" decided in United States v. State of California, supra, were:

(1) That straight base lines (as used by Norway) to include "fringe of islands along the coast in its immediate vicinity" to the coast line, are permissible under the Convention to participating nations, but not to States of the United States when contrary to the expressed opposition of the United States itself.

(2) Under the twenty-four mile closing rule, Monterey Bay becomes inland waters, but the Santa Barbara Channel does not, despite the location of those islands, a distance of less than twenty-four miles at both ends of the channel between the coast line and the islands (i. e., between Point Concepcion and the northwestern tip of San Miguel and between the southern tip of San Clemente and Point Loma).

(3) The "Historic bay" theory,² under which both state and federal courts have previously found or been aided in finding that Monterey, Santa Monica, and San Pedro Bays have boundaries three miles outside a line from point to point closing the bays (because falling within Art. XII of the 1849 California Constitution).³

(4) "Roadsteads" are not inland waters.

(5) The line of "Ordinary Low Water" as used in the Convention and the Submerged Lands Act was lower low water line, or lower low tide average, not the average of all low tides.

(6) "Artificial accretions" can increase the state's land and extend the original three mile limit seaward, when done without the United States exercising its power over navigable waters to prevent it.

With these Supreme Court rulings in mind, we turn to the instant case.

Appellant urges twelve errors.⁴ We summarize these as follows:

(1) The boundaries of a state are determined by Congress, not international law. Congress, by the Hawaiian Statehood Act, established the "channels" between the Hawaiian Islands as being within the boundaries of the State of Hawaii. And even if we assume the enjoined flights pass over international waters subject to no sovereignty, such waters are not "a...