ID=694176MAJ
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 69417-6
Title of Case: State of Washington
v.
Helen J Norman et al
File Date: 02/21/2002
Oral Argument Date: 09/11/2001
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Whatcom County
Docket No: 96-1-00804-7
Judgment or order under review
Date filed: 02/23/2000
Judge signing: Hon. David S. Nichols
JUSTICES
--------
Authored by Barbara A. Madsen
Concurring: Gerry L. Alexander
Charles Z. Smith
Charles W. Johnson
Faith E Ireland
Bobbe J. Bridge
Tom Chambers
Susan J. Owens
Dissenting: Richard B. Sanders
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Jon C. Komorowski
Assistant Public Defender
Whatcom County Public Def
311 Grand Ave Ste 305
Bellingham, WA 98225-4007
Eric M. Weight
311 Grand Ave Ste 305
Bellingham, WA 98225-4007
Jon C. Komorowski
Assistant Public Defender
Whatcom County Public Def
311 Grand Ave Ste 305
Bellingham, WA 98225-4007
Eric M. Weight
311 Grand Ave Ste 305
Bellingham, WA 98225-4007
Jon C. Komorowski
Assistant Public Defender
Whatcom County Public Def
311 Grand Ave Ste 305
Bellingham, WA 98225-4007
Eric M. Weight
311 Grand Ave Ste 305
Bellingham, WA 98225-4007
Philip J. Buri
Brett & Daugert
300 N Commercial St
Bellingham, WA 98227-5008
Counsel for Respondent(s)
David M. Grant
Whatcom County Assistant Pros. Atty.
Whatcom Co Courthouse
311 Grand Avenue
Bellingham, WA 98225
Amicus Curiae on behalf of Attorney General
Jeffrey T. Even
Ofc of Atty Gen
PO Box 40100
Olympia, WA 98504-0100
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 69417-6
)
Respondent, )
)
v. ) EN BANC
)
HELEN NORMAN, KEVIN BELEN, )
and LAURA STRADWICK, )
)
Petitioners. ) Dated February 21, 2002
)
MADSEN, J. -- The defendants in these consolidated cases maintain
that the State lacks jurisdiction to prosecute them for alleged crimes
committed north of the 49th parallel, as located by present day geographers
and surveyors, but south of the international boundary between the United
States and Canada. Our state constitution provides that Washington State's
northern boundary in the relevant area is "west along said forty-ninth
parallel of north latitude." Const. art. XXIV, sec. 1. At the time the
United States-Canada border was originally surveyed, prior to Washington's
admission into the Union as a state, the surveyors used an astronomic
method of locating the 49th parallel that failed to account for local
gravitational pulls. For this and other reasons, the international border
does not lie on the 49th parallel as currently located.
We hold that this state's northern boundary is coextensive with the
international boundary as marked, and accordingly affirm the trial court's
denial of the defendants' motion to dismiss for want of subject matter
jurisdiction.
Facts
In 1996, United States Customs officials at border crossings in
Whatcom County searched each of the defendants, Helen J. Norman, Kevin C.
Belen, and Laura Lee Stradwick. The site of each search is north of the
49th parallel as presently recognized, but south of the United States-
Canada border. The searches of Norman and Stradwick led to state charges
against them of being in possession of controlled substances, while the
search of Belen led to his being charged with possession of stolen
property. The defendants' cases were consolidated in Whatcom County
Superior Court for purposes of a defense motion to dismiss for lack of
subject matter jurisdiction. The defendants argued that the alleged crimes
were committed north of the Washington border because they were committed
north of the 49th parallel. The trial court held a pretrial hearing on the
motion (continuing it as necessary) and considered expert testimony and
numerous exhibits pertaining to the location of Washington's border north
of Whatcom County. The court denied the motion to dismiss, reasoning that
although present day geographers place the 49th parallel at a location
different from that of the marked international boundary between the United
States and Canada, the political and conceptual location of the
international boundary is the 49th parallel and the state constitution
defines the state's boundary to follow the international boundary.
The defendants sought discretionary review of the trial court's order
and this court granted interlocutory review. We consider the history of
the United States-Canada international boundary and the history of
Washington's admission into the Union and its boundary in order to decide
the issue presented.
The territory west of the Rocky Mountains and north of the 42nd parallel
(California's northern border) was jointly occupied by the United States
and Great Britain for a period of time prior to 1846, when the conflicting
claims were resolved by The Oregon Treaty{-}Treaty Establishing the
Boundary in the Territory on the Northwest Coast of America Lying Westward
of the Rocky Mountains (hereafter the Oregon Treaty), reprinted in Dep't
of State, Int'l Boundary Comm'n, Joint Report upon the Survey and
Demarcation of the Boundary between the United States and Canada 191-92
(1937) (hereafter Report of the Comm'n). The Oregon Treaty provided that
the boundary between the two nations "shall be continued westward along the
said forty-ninth parallel of north latitude to the middle of the channel
which separates the continent from Vancouver's Island." Oregon Treaty,
reprinted in Report of the Comm'n at 191. Shortly thereafter, in 1848,
Congress created the Oregon Territory, which described the territory as all
the United States territory west of the summit of the Rocky Mountains and
north of the 42nd parallel. 9 Stat. ch. 177, sec. 1, at 323 (1848). Then,
in 1853, Congress created the Washington Territory from part of the Oregon
Territory. Section 1 of the Organic Act described the northern boundary of
the new territory when it defined the Washington Territory, in part, as
"that portion of Oregon Territory lying and being south of the forty-ninth
degree of north latitude." 10 Stat. ch. 90, at 172 (1853). In 1859, the
Oregon Enabling Act was passed, setting the northernmost boundary of Oregon
along the middle of the Columbia River to the point where it intersects the
46th parallel and then easterly to the Snake River. 11 Stat. ch. 33, sec.
5, at 384(1859). The act further provided that the "residue of the
Territory of Oregon shall be, and is hereby, incorporated into, and made
part of the Territory of Washington." Id.
In 1856, Congress enacted legislation for the purpose of carrying out
a survey of the border as established by the 1846 Oregon Treaty. Congress
directed that the "demarcation of that part of the said line of boundary
which forms the boundary line between Washington Territory and the British
possessions" be located. 11 Stat. ch. 87, sec. 4, at 42 (1856). At the
time, the Washington Territory extended eastward to the summit of the Rocky
Mountains. The survey was carried out between 1858 and 1862 (though some
materials in the record say 1857-61). Report of the Comm'n at 194-97. The
method used is described:
In the absence of any previous geodetic surveys in the country traversed by
this section of the boundary, astronomic observations for latitude had to
be made in order to determine the parallel of forty-nine degrees. Such
observations were made at selected stations within easily measurable
distances of the parallel. The observations were made with great care and
a high degree of precision was attained. . . . After the latitude of the
station had been determined, a point on the parallel was established by
measuring the required distance north or south, as the case might be, from
the station to the parallel.
The boundary was then traced along the parallel from the established
point by the method of offsets from the tangent to the parallel, the
tangent being determined by means of astronomic observations from azimuth.
Report of the Comm'n at 210-11.
Even at the time, the surveyors recognized that the line marked was
not always on the 49th parallel. For example, the English Commissioner
reported that survey errors were discovered as great as 860 feet and none
less than 180 feet on the boundary between Similkameen to the Kettle River.
These errors were discovered when attempts were made to link United States
and British points on the boundary, and were resolved by running a "mean
parallel." Id. at 213 (quoting letter from Comm'r Hawkins dated Apr. 12,
1861). The errors were attributed to "local causes affecting the
astronomical observations" and were apparently due to "local station
deflection of the plumb line." Id. at 213 & n.3 (including footnote in
letter). The attribution was apt. As experts for both parties agreed, and
as is universally recognized, local land masses can create variations in
gravitational pulls, which cause deflections of plumb lines used in
astronomical observations to establish lines of latitude.
Another cause was recognized for variation from the astronomic 49th
parallel. Once points on the boundary were marked, the boundary between
the marks was agreed to be a straight line. Report of the Comm'n at 201
(quoting letter from Comm'r Hawkins dated May 7, 1869) (ex. 61). Since a
line of latitude by definition is a curved line, this use of connecting
straight lines also meant the marked boundary was not truly on the
astronomic 49th parallel.
The survey commission prepared a series of seven maps, dated May 7,
1869, showing the location of the original boundary markers. The United
States and Great Britain adopted this set of maps in an 1870 declaration
stating that
it appearing that they do correctly indicate the said Boundary from the
point where the Boundary laid down in Treaties and Conventions prior to
June 15th, 1846, terminates Westward on the 49th Parallel of North Latitude
to the Eastern shore of the Gulf of Georgia {now Boundary Bay}, which
Boundary has been defined by the Commissioners by marks upon the ground;
The Undersigned . . . hereby declare that the said maps . . . are
approved, agreed to, and adopted by both Governments.
1870 Declaration,1 reprinted in Report of Comm'n at 197-98 (emphasis
added). Thus, despite the known irregularities,2 in the 1870 Declaration
the United States and Great Britain recognized the boundary as marked on
the ground as the international boundary along the 49th parallel.
On February 22, 1889, Congress passed the Enabling Act authorizing
Washington's entry into the Union as a state. 25 Stat. ch. 180, at 676
(1889). Unlike the cases involving some other enabling acts, ours did not
contain a metes and bounds description of the area that would form the new
state of Washington. Instead, the Enabling Act said:
{T}he inhabitants of all that part of the area of the United States now
constituting the Territories of Dakota, Montana, and Washington, as at
present described, may become the States of North Dakota, South Dakota,
Montana, and Washington, respectively, as hereinafter provided.
Id. sec. 1 (emphasis added).
The people of the Washington Territory then set about proposing and
adopting a state constitution. In 1889, delegates met and drafted a
constitution. On July 15, 1889, Committee Chairman Comegys asked for
authority for the Committee for Federal Relations, Boundaries and
Immigration "to telegraph the Secretary of the Interior for information as
to the definite boundaries of the territory of Washington." The Journal of
the Washington State Constitutional Convention, 1889, at 96, 848 (Beverly
Paulik Rosenow ed., 1999) (hereafter Journal). On August 7, 1889, the
committee recommended a boundary description that, in relevant part,
described the northern boundary as "thence West along said forty-ninth
parallel of north latitude." Ex. 115; Journal at 276.3 The convention
passed the committee's recommended description of the state boundary, with
minor changes not relevant here, on August 19, 1889. Ex. 115. The voters
ratified the state constitution. The boundary as adopted (and as
subsequently modified by the 33rd Amendment4) is found in article XXIV,
section 1 of our state constitution.
On November 11, 1889, President Benjamin Harrison issued a
proclamation admitting Washington into the Union as a state. 26 Stat.
Proclamations at 10 (Nov. 11, 1889).
In 1908, the United States and Great Britain entered another treaty
concerning the international border. The 1908 treaty consists of separate
articles. An introductory section states the desire of the nations for a
"more complete definition and demarcation of the international boundary
between the United States and the Dominion of Canada." Introduction,
Treaty Between the United States of America and the United Kingdom
Concerning the Boundary Between the United States and the Dominion of
Canada from the Atlantic Ocean to the Pacific Ocean, April 11, 1908
(hereafter 1908 Treaty), reprinted in Report of the Comm'n at 1. Article
VII addresses the boundary from the summit of the Rocky Mountains to the
Gulf of Georgia, now Boundary Bay. It provides in part:
Whereas, by concurrent action of the Government of the United States and
the Government of Great Britain in 1902 and 1903, Commissioners were
designated to act jointly for the purpose of renewing lost or damaged
monuments and placing additional monuments where such were needed
throughout the course of the boundary along the forty-ninth parallel of
north latitude, from the summit of the Rocky Mountains westward to the
eastern shore of the Gulf of Georgia, as defined in Article I of the Treaty
of June 15, 1846, between the United States and Great Britain {the Oregon
Treaty} and as marked by monuments along its course and laid down on a
series of charts, seven in number, by a Joint Commission organized in 1858
for that purpose and composed of two Commissioners appointed one by each
Government, which charts . . . were approved and adopted by the two
Governments, as appears from the declaration in writing . . . {of} February
24, 1870 {the 1870 Declaration}, . . . and it appearing that the
remonumenting of this line by the Commissioners first above referred to is
now approaching completion;
{The parties agree that when the work is complete the "entire course of
said boundary" shall be marked on charts and a report made of the work
done};
The line so laid down and defined shall be taken and deemed to be the
international boundary as defined and established by treaty provisions and
the proceedings thereunder as aforesaid . . . .
1908 Treaty, reprinted in Report of the Comm'n at 8 (emphasis added).
Each of the articles in the 1908 Treaty relating to a section of the
border ends similarly to Article VII, i.e., each states the line so laid
down shall be taken and deemed to be the international boundary as defined
and established by previous treaties.
In addition to the historical events summarized above, the parties
presented expert testimony at the pretrial hearing on the question of
Washington's northern boundary. The State's witnesses generally described
the difference between location of the 49th parallel using astronomical
observations and geodetic datums. The latter methodology, briefly stated
and simplified, involves starting from a point believed to cause little or
no deflection due to gravitational effect (because, for example, it is on a
plain), locating that point, and then, using triangulation, creating a
scheme of connected points used to locate degrees of latitude and
longitude. Aside from the possibility that the initial point may have some
deflection, the remaining points will be free of the effects of
gravitational variance on the earth. More recently, global positioning
systems have been used in surveying.
Additional testimony is discussed below where relevant to the analysis.
In 1996, the parties commissioned a firm to survey the location of the
three Customs inspection facilities where the defendants were searched.
The firm used global positioning and geodetic surveying methodology to
locate the 49th parallel near the sites. The results of the survey were
that each of the sites was north of the discovered 49th parallel.
The trial court issued a memorandum decision explaining its denial of the
defendants' motion to dismiss for want of subject matter jurisdiction. The
court found no dispute that the international boundary as marked on the
ground differs from the 49th parallel as currently determined. The court
rejected the defendants' arguments that the 1908 Treaty altered the border
definition in fact and concept, noting that the 1908 Treaty consistently
refers to prior treaties, specifically, in relevant part, the 1846 Oregon
Treaty, and nowhere indicates that the 1846 treaty is superseded. The
court concluded that the international border continues to be conceptually
and politically defined by the United States and Great Britain as the 49th
parallel. The court discussed the various surveying methods, but found
that the 1846 and 1908 Treaties, which the court described as political
actions in nature, affirmed the boundary as the 49th parallel despite known
anomalies in the original survey and the development of geodetic systems by
the time of the remonumenting in the early 1900's. The court then reasoned
that the intent of the drafters of the Washington State Constitution was to
follow the language contained in the 1846 Treaty of Oregon defining the
international boundary as the 49th parallel, and to define Washington's
boundary in the same way.
Analysis
The defendants argue the State lacks jurisdiction to prosecute them for
alleged crimes committed north of the 49th parallel as currently determined
and south of the international boundary. They also maintain that
prosecution violates their rights under the Sixth Amendment to the United
States Constitution, which states that a defendant has a right to trial by
a jury "of the state and district wherein the crime shall have been
committed."
RCW 9A.04.030 defines state criminal jurisdiction and, in relevant
part, states that there is jurisdiction when "{a} person . . . commits in
the state any crime, in whole or in part." RCW 9A.04.030(1). "Proof of
jurisdiction beyond a reasonable doubt is an integral component of the
State's burden in every criminal prosecution." State v. Squally, 132 Wn.2d
333, 340, 937 P.2d 1069 (1997) (citing State v. Svenson, 104 Wn.2d 533,
542, 707 P.2d 120 (1985)). Generally, proof that the crime was committed
in the state satisfies the jurisdictional element. Id. The question of
jurisdiction is a question of law, which the court reviews de novo. Id.
The question whether the defendants' alleged crimes were committed in
the state depends upon delineation of the state boundary. Article XXIV,
section 1 of the Washington State Constitution states in relevant part that
the northern boundary of the state is "west along said forty-ninth parallel
of north latitude." A question of constitutional construction is a
question of law reviewed de novo by the court. City of Kennewick v. Benton
County, 131 Wn.2d 768, 771, 935 P.2d 606 (1997); State ex rel. Humiston v.
Meyers, 61 Wn.2d 772, 777, 380 P.2d 735 (1963); Mount Spokane Skiing Corp.
v. Spokane County, 86 Wn. App. 165, 172, 936 P.2d 1148 (1997).
The State maintains that the language in the state constitution must accord
with congressional intent in enacting the Enabling Act and admitting
Washington State into the Union, and therefore the issue is one of
determining that intent. We agree.
The particular question here, the location of a state boundary, is
ultimately a preferred question of congressional intent. United States
Constitution article IV, section 3, gives Congress the power to create new
states and to establish the boundaries of the states. Texas v. Louisiana,
410 U.S. 702, 707, 93 S. Ct. 1215, 35 L. Ed. 2d 646 (1973). The United
States Supreme Court has thus said that its task in resolving state
boundary disputes is "to ascertain congressional will when it admitted" a
state into the Union. Id.; see also Illinois v. Kentucky, 500 U.S. 380,
387, 111 S. Ct. 1877, 114 L. Ed. 2d 420 (1991); Washington v. Oregon, 211
U.S. 127, 134-35, 29 S. Ct. 47, 53 L. Ed. 118 (1908); Louisiana v.
Mississippi, 202 U.S. 1, 46-47, 26 S. Ct. 408, 50 L. Ed. 913 (1906). Thus,
when the Court decides boundary disputes between states,5 or between the
United States and a state, it examines the enabling acts of the states as
part of the inquiry into what the boundaries of the states were intended to
be. E.g., Texas v. Louisiana, 410 U.S. 702; United States v. Wyoming, 331
U.S. 440, 67 S. Ct. 1319, 91 L. Ed. 1590 (1947); Minnesota v. Wisconsin,
252 U.S. 273, 40 S. Ct. 313, 64 L. Ed. 558 (1920). The Court also examines
relevant treaties and conventions and related enactments. E.g., Vermont v.
New Hampshire, 289 U.S. 593, 53 S. Ct. 708, 77 L. Ed. 1392 (1933); United
States v. Texas, 162 U.S. 1, 16 S. Ct. 725, 40 L. Ed. 867 (1896); Missouri
v. Kentucky, 78 U.S. (11 Wall.) 395, 20 L. Ed. 116 (1870); Missouri v.
Iowa, 48 U.S. (7 How.) 660, 12 L. Ed. 861 (1849).
Our Enabling Act states that the "inhabitants of all that part of the area
of the United States now constituting the Territor{y} of . . . Washington,
as at present described, may become the State{} of . . . Washington . . .
as hereinafter provided." 25 Stat. ch. 180, at 676 (1889) (emphasis
added). Congress thus invited Washington to become a state with the same
boundaries it had as a territory.
The then present description of the Washington Territory included (1) the
Oregon Treaty, which provided that the boundary between the United States
and the British possessions "shall be continued westward along the said
forty-ninth parallel of north latitude to the middle of the channel which
separates the continent from Vancouver's Island," Oregon Treaty, reprinted
in Report of the Comm'n at 191; (2) the 1848 congressional enactment
creating the Oregon Territory, which described the territory as all the
United States territory west of the summit of the Rocky Mountains and north
of the 42nd parallel, 9 Stat. ch. 177, sec. 1, at 323 (1848) (ex. 55), thus
necessarily including the land south of the 49th parallel; (3) the
description of the Organic Act of 1853 creating the Washington Territory
and describing the northern border in relevant part as "that portion of
Oregon Territory lying and being south of the forty-ninth degree of north
latitude," 10 Stat. ch. 90, at 172 (1853); (4) the 1859 Oregon Enabling Act
which directed that until further Congressional action, the "residue of the
Territory of Oregon shall be . . . a part of the Territory of Washington,"
11 Stat. ch. 33 (1859); and (5) an 1863 act forming the Idaho Territory
from the eastern part of the Washington Territory, 12 Stat. ch. 177, at 808
(1863) (see ex. 141, at 245).
Thus, at the time the Enabling Act was passed in 1889, the description of
the northern border of the Washington Territory "as at present described"
was, in relevant part, the 49th parallel, the same 49th parallel that
constituted the international boundary. Indeed, the 1856 legislation
enacted for the purpose of carrying out the survey of the international
border as established by the1846 Oregon Treaty directed location of the
"demarcation of that part of the said line of boundary which forms the
boundary line between Washington Territory and the British possessions."
11 Stat. ch. 87, at 42 (1856) (emphasis added).
However, Congress did not intend a true geographic boundary on the 49th
parallel. At the time the Enabling Act was passed, both the United States
and Great Britain continued to deem the international boundary to be on the
49th parallel as located in the survey conducted to carry out the 1846
Oregon Treaty, despite known anomalies. This is clear from the 1870
Declaration that recognized the resulting boundary marked on the ground as
the international boundary on "the 49th Parallel of North Latitude." 1870
Declaration, quoted in Report of the Comm'n at 197-98 (emphasis added).
Thus, Washington's admission as a state with a northern boundary along the
49th parallel effectuated congressional intent that the new state have as
its northern boundary the 49th parallel, the same as it had as a territory,
which was the same boundary line as the international boundary.6
The defendants maintain, however, that the meaning of a provision in our
state constitution, including the boundary definition, is a question of the
intent of the framers of the state constitution. They then rely on cases
standing for the principle that if the language of the constitution is
plain and unambiguous, it reflects the framers' intent and is not subject
to judicial interpretation. E.g., State ex rel. Anderson v. Chapman, 86
Wn.2d 189, 191, 543 P.2d 229 (1975); State ex rel. O'Connell v. Slavin, 75
Wn.2d 554, 557, 452 P.2d 943 (1969); State ex rel. O'Connell v. Port of
Seattle, 65 Wn.2d 801, 805, 806, 399 P.2d 623 (1965). Defendants argue
that the plain language of the constitution unambiguously defines a
geographic boundary.7
This court has previously emphasized the importance of determining
congressional intent where a provision in the state constitution is
mandated by the Enabling Act:
In order to determine the meaning of the enabling act and our
constitutional provisions, it is necessary to ascertain the intent of the
framers of our constitution and that of Congress, first, in passing the
enabling act, in the preparation of the constitution, and the acceptance of
the state into the Union. That intent must be based upon the intent of the
instruments considered as a whole.
The constitution must be construed in the sense in which the framers
understood it in 1889.
Boeing Aircraft Co. v. Reconstruction Fin. Corp., 25 Wn.2d 652, 658, 171
P.2d 838 (1946) (emphasis added) (citation omitted). Boeing concerned a
provision in the state constitution, mandated by the Enabling Act, that the
state would not tax real property of the United States without its consent.
Here, congressional intent plays an even greater role in light of United
States Constitution article IV, section 3. Accordingly, we must consider
more than the language used in article XXIV, section 1 of our state
constitution.
Defendants say, however, that the United States Supreme Court also applies
a "plain meaning" approach to boundary determinations. They rely on New
Jersey v. New York, 523 U.S. 767, 782-84, 118 S. Ct. 1726, 140 L. Ed. 2d
993 (1998). However, the argument raised there was whether an 1834 compact
between New York and New Jersey providing that New York would retain
jurisdiction over Ellis Island meant that additions to the land created by
fill were also within New York's jurisdiction. Here, we are faced with the
Enabling Act and our state constitutional provision, not a boundary compact
between two states that has been approved by Congress. The Court stated in
Central Railroad Co. of New Jersey v. Jersey City, 209 U.S. 473, 477, 476,
28 S. Ct. 592, 52 L. Ed. 896 (1908), when construing the same compact at
issue in New Jersey, 523 U.S. 767, that "{t}he decision depends upon the
construction of an agreement made between New Jersey and New York." In
contrast, where questions of state boundaries have arisen in other
contexts, the Court has, as we do here, examined enabling acts, and
relevant treaties and congressional enactments to determine congressional
intent when admitting a state into the Union.
Central to defendants' plain language argument is their contention that the
Enabling Act was an offer of statehood to which the framers of our state
constitution made a counteroffer. They urge that the Enabling Act gave
specific mandatory requirements for certain aspects of the state
constitution, including religious freedom, matters concerning public and
Indian lands, debts and liabilities of the Territory, and public schools.
In contrast, the act did not contain a metes and bounds description for
Washington, as some other enabling acts do, and as ours does for the states
of North and South Dakota. Further, they say, the phrase "as at present
described" in the act is ambiguous because it does not say which
description was to be used. The absence of a detailed boundary description
and the use of ambiguous language, they urge, meant that this matter was
left to the state. Then, the defendants reason, when the state was
admitted to the Union by presidential proclamation, the federal government
accepted the state's boundary written into the constitution as the true
49th parallel, not the international boundary. Thus, Washington's
constitution with its inclusion of the "49th parallel" in its northern
boundary description was a counteroffer that was accepted by presidential
proclamation.
Defendants cite no authority for the proposition that the state had the
power to make a counteroffer regarding its boundaries.8 The Enabling Act
did not grant such authority, contrary to defendants' argument. That act
delegated to the President the duty, provided that all the provisions of
the Enabling Act were complied with, to announce the proposed state's
compliance with the act and to issue a proclamation announcing the results
of the election in the state, "and thereupon the proposed State{} . . .
shall be deemed admitted by Congress." 25 Stat. ch. 180, sec. 8 at 679
(1889). The act clearly contemplated that the state conform its
constitution to the boundary description stated in the act, i.e., the same
boundary as the Washington Territory had.9
Nor was there any reason for Congress (or the President) to think that
Washington's constitution was a counteroffer with a boundary different from
that of the Washington Territory as described at the time of the Enabling
Act, i.e., the 49th parallel as coextensive with the international
boundary. The federal position at the time was that the international
boundary and the Washington Territory boundary were both considered to be
on the 49th parallel.
It is clear, in any event, that there was no attempt to make a
counteroffer. An examination of relevant history and circumstances shows
that the framers' intent was the same as that of Congress.
As the defendants note, in 1878 delegates to what is known as the Walla
Walla Convention drafted a state constitution.10 Delegate Edward Eldridge
was appointed to a committee which addressed boundaries. Washington's
First Constitution, 1878, and Proceedings of the Convention, reprinted in
The Washington Historical Quarterly, 1915-1919 at 10. The convention
adopted a definition of the northern border stating in part "thence,
westerly along the line of the British Possessions." Id. at 63 (emphasis
added). On August 10, 1889, Mr. Eldridge, who was also a delegate to the
1889 convention, "moved to substitute the description in the {1878} Walla
Walla Constitution." Journal at 334. The motion was "{l}ost." Id.
Defendants contend that this shows that the constitutional convention in
1889 deliberately rejected language which would have placed the state's
northern boundary at the international boundary, and instead opted for a
different boundary, the 49th parallel. They reason that the delegates'
decision shows that the international boundary and the 49th parallel were
not considered to be synonymous at the time.
There is a more plausible reason for the delegates' choice of language,
however. As noted, Mr. Comegys, the chairman of the committee dealing with
boundaries, asked for and received permission to telegraph the Secretary of
the Interior for a description of the Washington Territory. Given that the
state Enabling Act stated that the Washington Territory "as at present
described" was invited to become a state, the convention's choice of
language is not surprising. It chose the same language that then described
the territory's northern boundary and the international boundary, i.e., the
49th parallel.
By choosing the same language that Congress had used in enactments and
treaties pertaining to the international border and Washington Territory's
northern border, the delegates expressed the same intent as Congress had.
The defendants also say that the understanding of our state constitution's
framers that the 49th parallel and the international boundary were not the
same is shown by the fact that the boundary description in the state
constitution uses both the 49th parallel as part of the northern boundary,
and also uses "the boundary line between the United States and British
possessions" to describe the northern boundary of Washington through the
waters between Canada and the United States. Wash. Const. art. XXIV, sec.
1. The boundary through the waters could not have been described as the
49th parallel, however, since it falls nowhere near the 49th parallel by
any definition.
The defendants maintain that at the time the Washington constitution was
drafted it was known that the international boundary did not lie on the
true 49th parallel.11 They impute this knowledge to the framers, and reason
that it follows that the use of the term "49th parallel" meant something
other than the international boundary.
The evidence is to the contrary. The expert testimony indicated that,
while knowledge of geodetic methods may have existed, locating the
international boundary by a geodetic method did not occur until after
Washington became a state. Even once that had occurred, the United States
and Great Britain still considered the international boundary to be along
the 49th parallel as located in the 1858-62 astronomic survey.
We are not convinced that the framers had a scientific 49th parallel in
mind when drafting the constitution. The weight of the evidence shows that
they intentionally used the same language as Congress used in treaties and
enactments relating to the Washington Territory's boundary in order to
conform to the mandate in the Enabling Act that the new state have the same
boundary as the territory had. Given the numerous maps in the record
showing coextensive international and territorial boundaries on the same
line--the 49th parallel--we are also not convinced that the voters of the
territory thought they were adopting in the constitution a boundary other
than one coextensive with the international boundary.
Finally, the defendants say that Washington's failure to modify its
language when the federal government did so shows intent that the state
boundary is not the same as the international boundary. This seems to be a
reference to the argument pursued by the defendants at the pretrial
hearing, and rejected by the trial court, that in entering the 1908 Treaty,
the United States switched from defining the international boundary as the
49th parallel to defining it as the physical boundary on the ground.
The 1908 Treaty did not define a new international boundary nor did it
change the definition of the existing boundary. It specifically references
both the Oregon Treaty of 1846 defining the international boundary as the
49th parallel and the 1870 Declaration approving the maps resulting from
the survey conducted to carry out that treaty as defining the international
boundary along the 49th parallel. Article VII of the 1908 Treaty concludes
with: "The line so laid down and defined shall be taken and deemed to be
the international boundary as defined and established by treaty provisions
and proceedings thereunder as aforesaid." 1908 Treaty, reprinted in Report
of the Comm'n at 8 (emphasis added). The United States and Great Britain
clearly adhered to the astronomically based 49th parallel as the
international boundary even though it was apparent by 1908 that a geodetic
survey would place the boundary in a different location.
Conclusion
At first blush the language "west along said forty-ninth parallel of north
latitude" in article XXIV, section 1 appears to refer to the 49th parallel
as marked on current maps and as we currently understand it. However, our
Enabling Act, treaties and enactments relating to the international border,
and the admission of Washington as a state indicate that Congress intended
Washington's borders to be the same as those of the Washington Territory;
that the Washington Territory's border was the same as the international
boundary between the United States and the British possessions to the
north; and that the international boundary lay along the 49th parallel as
determined in the astronomic survey conducted to carry out the 1846 Treaty
of Oregon. The political and conceptual location of the international and
state borders was the same when Washington was admitted as a state, and
remains so. Legally, the two boundaries are coextensive.
Affirmed.
1 The full title is "Declaration Approving and Adopting the Maps Prepared
by the Joint Commission of the Northwest Boundary for Surveying and Marking
the Boundaries Between the British Possessions and the United States Along
the 49th Parallel of North Latitude, Under the First Article of the Treaty
of 15th June, 1846."
2 The defendants quote the trial court's memorandum for the proposition
that errors in locating the 49th parallel were correctable in 1857. Br. of
Pet'rs, at 5-6. The quoted material relates to the 1908 Treaty (discussed
below in the text) and maps related to it. See Mem. Decision at 6; exs.
3A, 3B, 3C, 3D. It does not relate to 1857 and the original survey.
3 The analytical index to The Journal of the Washington State
Constitutional Convention, 1889, at 848 (Beverly Paulik Rosenow ed., 1999),
states that in the original version of the boundary description the
northern border was described as along said "parallel of north latitude to
the middle of the channel which separates Vancouver's island from the
continent." The defendants say that at page 276 of an earlier edition (B.
Rosenow ed., 1962), the boundary committee recommended this language as
part of the state's boundary description. However, the portion of the 1999
edition where the journal itself is contained quotes the language
recommended by the committee as being the same as stated in the text of
this opinion. Journal at 276. This language appears correct. Exhibit 115
is a document printed by T.H. Cavanaugh, Public Printer, containing the
committee's recommendation, in the language quoted in the text, and marked
by a handwritten notation "as passed Aug 19th" and signed by the Chief
Clerk. It appears the Journal language itself was corrected in the 1999
version of the Journal. The reason for the difference in language in the
analytical index of the 1999 version of the Journal is not apparent.
4 Amendment 33, 1957, added language to article XXIV, section 1 allowing
state boundaries to be modified by appropriate interstate compacts approved
by Congress.
5 The United States has original and exclusive jurisdiction of all
controversies between two or more states. 28 U.S.C. sec. 1251 (1994).
6 The defendants urge, however, that the circumstances of Idaho's admission
as a state show that Congress recognized that the "49th parallel" was not
coextensive with the international boundary between the United States and
the British possessions. When Idaho was admitted into the Union by an act
of Congress, Congress changed the northern boundary description of the
state from the "49th parallel" to "the boundary line between the United
States and the British Possessions." 51st Cong. sess. 1, ch. 656 (1890).
The reason for the change is not apparent. While the defendants say it
shows a difference in congressional intent, we are not persuaded. First,
if the two were coextensive, the two descriptions may simply have meant the
same thing. More importantly, the enactment regarding Idaho's border does
not alter our analysis regarding Washington's border in light of clear
congressional intent as to our own northern boundary.
7 The State says, however, that even under a plain meaning rule, the term
49th parallel is subject to judicial construction. As the State points
out, there are at least seven different systems for locating the 49th
parallel. This creates a latent ambiguity in the term used in article
XXIV, section 1.
8 There is also a question pertaining to Congress' authority to delegate to
the President power to entertain a counteroffer.
9 This court has said that, when first enacted, the Enabling Act was "no
more than a proposition or offer of a contract," but once the state
accepted the terms of the Enabling Act by adopting a constitution and the
state was admitted by Presidential proclamation, both the United States and
Washington were "bound by the provisions of that enabling act." Boeing
Aircraft Co. v. Reconstruction Fin. Corp., 25 Wn.2d 652, 658, 171 P.2d 838
(1946).
10 The voters ratified this constitution, which was drafted without prior
federal enabling legislation, but the state was not admitted into the Union
at that time. Journal, Forword at iii.
11 Defense witness Dr. John Bossler, Director of the Coast and Geodetic
Survey from 1983 to 1986, and Director of the National Geodetic Survey from
1980-83, among other things, testified that in 1889 when Washington became
a state there was knowledge that there was a difference between the 49th
parallel and the international boundary. He said "{s}omewhere around 1800
triangulation became the way in which geodetic computations of positioning
was performed." Verbatim Report of Proceedings (RP) at 209. He testified
that local datums have been used in this country since it was created. He
testified that between 1889 and 1901, when retracement of the international
boundary commenced (culminating in the 1908 Treaty and further work done
pursuant to that treaty), there were no advances in scientific knowledge
regarding geodetic sciences. He testified that a specific hydrographic
survey of the Straits of Rosario and De Haro made by the United States
Coast Survey in 1858 showed that at least a local network of triangulation
had been used to locate positions on the map. See Ex. 136. Similarly, he
concluded, another hydrographic survey showed use of triangulation for
Semiahmoo Bay. See Ex. 135. Dr. Bossler also testified extensively about
an 1865 Department of the Interior Map of public surveys in Washington
Territory that he says clearly shows the difference between the astronomic
and the geodetic parallels. See Ex. 100.
Dr. Chrisman, a professor of geography at the University of Washington,
also testified for the defense. He testified that the deviation shown on
the 1865 Department of the Interior map was exaggerated to show, but did
show, that the international boundary was not in the same place as the 49th
parallel, and explained the deviation was shown only on the western part of
the boundary because that is all that was known about at the time. See
Ex. 100. He also testified that exhibits 135 and 136 showed use of local
triangulation. Generally, he summarized his testimony as showing "the
development in accuracy that is going on through this period from the
1850's through 1908 and onward." RP at 358.
ID=694176MAJ