Amicus Curiae Brief — Utah Division of State Lands v. United States

In the Supreme

OF SAE

OcToBer TERM, 1985

THE STATE OF UTan, by and through its

Division OF STATE LANDS,

Petitioner,

v.

UNITED STATES OF AMERICA; DONALD P. Hope L,

Secretary of the Interior;

Rosert F. Burroro, Director of the Bureau

of Land Management within the Department of the Interior,

and ROLAND G. Rosison, Jr., Utah State Director

of the Bureau of Land Management,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Tenth Circuit

BRIEF OF THE STATES OF ALASKA, ALABAMA,

ARIZONA, ARKANSAS, CALIFORNIA, COLORADO, FLORIDA,

GEORGIA, HAWAIL, IDAHO, ILLINOIS, INDIANA,

KANSAS, LOUISIANA, MASSACHUSETTS, MISSISSIPPI,

MISSOURI, MONTANA, NEVADA, NEW HAMPSHIRE,

NEW MEXICO, NORTH CAROLINA, NORTH DAKOTA,

OKLAHOMA, OREGON, TEXAS, WASHINGTON,

WEST VIRGINIA, WISCONSIN, AND WYOMING

AS AMICI CURIAE IN SUPPORT OF

THE PETITION FOR A WRIT OF CERTIORARI

HAROLD M. BROowN Rosert K. CorsBin

Attorney General of Alaska Attorney General of Arizona

G. THOMAS KOESTER JOHN STEVEN CLARK

Assistant Attorney General Attorney General of Arkansas

Comet Ree y ——_-SOHN VAN De Kaa

Juneau, Alaska 9981 1 Attorney General of California

Telephone: (907) 465-3600 DUANE WOODARD

Attorney General of Colorado

CHARLES GRADDICK

Attorney General of Alabama Jim SMITH

Attorney General of Florida

(Continued on Inside Front Cover)

BOWNE OF SAN FRANCISCO. INC. + 190 NINTH ST. + S.F.. CA 94103 + (415) 664-2300

CLE

United States ——_

MICHAEL J. BoweRS

Attorney General of Georgia

Corrine K. A. WATANABE

Attorney General of Hawaii

Jim JONES

Attorney General of Idaho

NEAL F. HARTIGAN

Attorney General of Illinois

LinLey E. PEARSON

Attorney General of Indiana

RoBert T. STEPHAN

Attorney General of Kansas

WILLIAM J. GUSTE

Attorney General of Louisiana

FRANCIS X. BELLOTTI

Attorney General of Massachusetts

Epwin LLoypb PITTMAN

Attorney General of Mississippi

WILLIAM L. WEBSTER

Attorney General of Missouri

MIKE GREELY

Attorney General of Montana

BRIAN McKay

Attorney General of Nevada

STEPHEN E. MERRILL

Attorney General of New Hampshire

PAUL BARDACKE

Attorney General of New Mexico

Lacy H. THORNBURG

Attorney General of North Carolina

NICHOLAS SPAETH

Attorney General of North Dakota

MICHAEL C. TURPEN

Attorney General of Oklahoma

DAVE FROHNMAYER

Attorney General of Oregon

Jim Matrox

Attorney Generai of Texas

KEN EIKENBERRY

Attorney General of Washington

CHarR.Les G. BROWN

Attorney General of West Virginia

BRONSON C. La FOLLETTE

Attorney General of Wisconsin

A. G. McCLInTock

Attorney General of Wyoming

QUESTION PRESENTED

Whether a pre-statehood federal withdrawal can defeat a

state’s sovereign ownership of lands underlying navigable waters

under the equal footing doctrine.

il

TABLE OF CONTENTS

Ui et denchaedsceweedstedaunans

I a nn iweb eecenbacene’

The decision below conflicts with prior rulings of this court

II

The importance of the sovereign rights at issue warrants

TABLE OF AUTHORITIES CITED

Cases

Page

Alaska v. United States, Nos. A 83-343, A 84-435 and

A 86-181 (Consolidated) (D. Alaska, filed July 5, 1983,

October 11, 1984 and March 27, 1986) ............... 10

Alaska v. United States, No. A 86-110 (D. Alaska, filed

ee ei reese ksé bees seeecinccede 10

Appeal of Cook Inlet Region, Inc., No. 84-149 (Interior

Board of Land Appeals, filed November 5, 1983)....... 11

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) ...... 2, 6

Coyle v. Smith, 221 U.S. 559 (1911)................... 11

Illinois Central Railroad Company v. Illinois, 146 U.S. 387

CR Pree uit ner oie e eden ek vibes é suiek gets 10

Kaiser Aetna v. United States, 440 U.S. 164 (1979) ...... 7

Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842) ........ 5

Minnesota ex rel. Alexander v. Block, 660 F.2d 1240 (8th

Cir. 1981), cert. denied, 455 U.S. 1007 (1982) ........ 8

Montana v. United States, 450 U.S. 544 (1981) .......... 2, 6

Mumford v. Wardwell, 73 U.S. (6 Wall.) 423 (1867)..... 5

Oregon ex rel. State Land Board v. Corvallis Sand &

Gravel Co., 429 U.S. 363 (1977) .............2045. 6, 8, 10

Ounalashka Corp. v. Alaska, No. 77-918 (Alaska Superior

Sy ee Ns PED onc ccc ciccccedsecene 10, 11

Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845)

RGU Uen PAE e de a kihecds ot peatesecnndea 5,9, 11

Shively v. Bowlby, 152 U.S. 1 (1894) .................. 5

State of Alaska, No. 85-768 (Interior Board of Land

FE, Ty Oe BID bcc ccc cccccccescccccces 11

United States v. California, 342 U.S. 19 (1947).......... 7

United States v. California, 436 U.S. 32 (1978) .......... 6, 8

United States v. Louisiana, 363 U.S. 1 (1960) ........... 7

iv

TABLE OF AUTHORITIES CITED

CASES

Page

United States v. Oregon, 295 U.S. 1 (1935) ............. 5,8

United States v. Utah, 283 U.S. 64 (1930) .............. 7

U.S. Constitution

Commerce Clause, article I, section 8, cl. 3 ............. 8

Property Clause: article IV, section 3, cl. 1 .............. 11

article IV, section 3, cl.2.............. 8

Other Authorities

Submerged Land Act, 43 U.S.C. §§ 1301, et seq.......... 6

H. Rep. No. 624, 85th Cong., Ist Sess. 6 (1957) ......... 8

Public Land Law Review Commission, One-Third of the

ee cas ce ESecccesossebcdetoce 3

Sol. Op. M-36911, 86 I.D. 151 (1978) .............005- 3

No. 85-1772

In the Supreme Court

OF THE

United States

OcTOBER TERM, 1985

THE STATE OF UTAH, by and through its

DivISION OF STATE LANDS,

Petitioner,

Vv.

UNITED STATES OF AMERICA; DONALD P. HODEL,

Secretary of the Interior,

Rosert F. BurForp, Director of the Bureau

of Land Management within the Department of the Interior,

and ROLAND G. Rosison, Jr., Utah State Director

of the Bureau of Land Management,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Tenth Circuit

BRIEF OF THE STATES OF ALASKA, ALABAMA,

ARIZONA, ARKANSAS, CALIFORNIA, COLORADO, FLORIDA,

GEORGIA, HAWAII, IDAHO, ILLINOIS, INDIANA,

KANSAS, LOUISIANA, MASSACHUSETTS, MISSISSIPPI,

MISSOURI, MONTANA, NEVADA, NEW HAMPSHIRE,

NEW MEXICO, NORTH CAROLINA, NORTH DAKOTA,

OKLAHOMA, OREGON, TEXAS, WASHINGTON,

WEST VIRGINIA, WISCONSIN, AND WYOMING

AS AMICI CURIAE IN SUPPORT OF

THE PETITION FOR A WRIT OF CERTIORARI

INTEREST OF AMICI CURIAE

There are many navigable rivers and lakes within the bounda-

ries of the states appearing as amici curiae. For more than 140

years, this Court consistently has held that title to the lands under

these navigable waterbodies is an incident of sovereignty reserved

2

to the states, subject only to the powers surrendered to the

national government in the Constitution. This sovereign owner-

ship vested in the original 13 states as direct successors to the

English crown, and was retained by them when they formed the

Union. Because the Constitution requires that all states are equal

with respect .o sovereignty, the United States holds such lands in

territories in trust for future states, and title passes from the

federal government to new states when they join the Union and

assume sovereignty on an “equal footing” with previously-admit-

ted states.'

The only exception to this equal footing doctrine which this

Court has recognized is the rare situation where title to lands

underlying navigable waters was conveyed to a third party prior to

statehood.” In this case, the Court of Appeals for the Tenth

Circuit created a new exception, holding that the pre-statehood

federal designation of Utah Lake as a potential reservoir site, as

distinct from a pre-statehood conveyance to a third party, de-

feated Utah’s sovereign title to the lakebed under the constitu-

tional equal footing doctrine.

This ruling, unsupported in this Court’s prior decisions, dimin-

ishes Utah’s sovereignty and places Utah on a less-than-equal

footing with respect to the original 13 states. Since the equal

footing doctrine requires that amici states’ sovereignty is equal to

Utah’s, their sovereignty also will be diminished if this decision is

permitted to stand. If not reversed, the decision will alter the

fundamental relationship between the states and the federal

government by elevating federal executive action above the con-

stitutional sovereign rights of the several states.

The Court of Appeals’ decision will have significant practical

consequences as well. The excessive use of federal withdrawal

' See generally Montana v. United States, 450 U.S. 544, 551-552

(1981), and cases cited.

? E.g., Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) (charac-

terized in Montana as “a singular exception” to the otherwise “estab-

lished line of cases,” 450 U.S. at 555 n.5, holding that title to submerged

lands vests in the states at statehood).

3

authority is generally recognized.’ Many navigable waterbodies in

amici states lie within the exterior boundaries of pre-statehood

federal withdrawals and reservations‘ similar to the pre-statehood

federal designation of Utah Lake as a potential reservior site. The

lower court’s ruling may have a direct effect on amici states’

sovereign ownership of lands under navigable waterbodies which

lie within the exterior boundaries of pre-statehood federal

withdrawals.

These states’ concern is not a hypothetical one. The mere

existence of a withdrawal on the date of statehood, even when

revoked shortly thereafter, has served as the basis of a federal

claim that a state’s equal footing rights have been defeated.’ The

> The Public Land Law Review commission stated:

Concern about problems associated with the “withdrawal” and

“reservation” of public domain lands was strongly voiced in the

deliberations which led to the creation of the Commission, and was

a recurring subject of complaint in the Commission’s public meet-

ings. The contractor's study of withdrawals indicates that they have

been used by the Executive in an uncontrolled and haphazard

manner.

...In short, the excessive use of Executive withdrawals has

become a source of increasing controversy.

Public Land Law Review Commission, One-Third of the Nation's Land

(1970) at 43-44 (footnote omitted; emphasis added).

* A “withdrawal” of public lands removes them from settlement, sale

or entry under some or all of the public land laws. A “reservation”

dedicates them for some specific purpose. See Public Land Law Review

Commission, One Third of the Nation's Land (1970) at 43 n.1.

* The most egregious example may be Sol. Op. M-36911, 86 I.D. 151

(1978), which concluded that a 1943 withdrawal of 48.8 million acres,

constituting ali of Alaska’s North Slope, and a reservation of the

minerals therein “for use in connection with the prosecution of [World

War II]” totally defeated Alaska’s title to the beds of all navigable

waters in the lands withdrawn and that title to the beds remained with

the federal government, notwithstanding the end of the war in 1945,

Alaska’s admission to the Union in 1959 and revocation of the with-

drawal in 1960.

4

Court of Appeals’ decision, if permitted to stand, ‘vill only

encourage further federal assaults on state sovereignty and the

several states’ sovereign title to the beds of navigable waterbodies

within the exterior boundaries of pre-statehood federal

withdrawals.

This case presents a basic question concerning the relationship

between the inherent sovereign rights of the several states and the

powers surrendered to the national government in the Constitu-

tion. For these reasons, amici states believe that the case should

be reviewed by this Court.

QUESTION PRESENTED

Although the Court of Appeals’ decision presents specific

questions relating to the federal withdrawal of Utah Lake as a

potential reservoir site,° the amici brief is limited to the following

question: whether a pre-statehood federal withdrawal can defeat a

state’s sovereign ownership of lands underlying oa waters

under the equal footing doctrine.

REASONS FOR GRANTING THE WRIT

The amici states urge this Court to rev w the Court of

Appeals’ decision because the decision (1) conflicts with this

Court’s decisions relating to the equal footing doctrine and

submerged land ownership, and (2) is an unwarranted and

unnecessary diminishment of state sovereignty presenting a fun-

damental question regarding the balance between the states’

sovereign rights and those surrendered to the federal government.

The significance of the lower court’s error, together with the

importance of the sovereign rights at issue and the direct and

potential effect of the decision, merit the exercise of this Court’s

certiorari jurisdiction.

® Amici states agree with Utah that the questions relating to the

specific withdrawal of Utah Lake as a potential reservoir site indepen-

dently merit this Court’s review.

ne

5

THE DECISION BELOW CONFLICTS WITH PRIOR

RULINGS OF THIS COURT

This Court repeatedly has recognized that the several states

own the beds of navigable waterbodies as an inherent attribute of

state sovereignty. The original 13 states own the lands underlying

navigable waters within their boundaries as the sovereign succes-

sors to the English crown. Martin v. Waddell, 41 U.S. (16 Pet.)

367 (1842). All subsequently-admitted states enter the Union on

an equal footing with the original 13 states, and accordingly must

hold the same title to the lands underlying navigable waters

within their respective boundaries. Pollard's Lessee v. Hagan, 44

U.S. (3 How.) 212 (1845). Under this equal footing doctrine,

“the new states since admitted have the same rights, sovereignty

and jurisdiction...as the original states possess within their

respective borders.” Mumford v. Wardwell, 73 U.S. (6 Wall.)

423, 436 (1867).

To implement the equal footing doctrine of Pollard’s Lessee,

the United States holds such lands in a territory “in trust for the

several States to be ultimately created out of the territory.”

Shively v. Bowliy, 152 U.S. 1, 57 (1894). “[U]pon the admission

of a state to the Union, the title of the United States to lands

underlying navigable waters within the state passes to it, as

incident to the transfer to the state of local sovereignty, and is

subject only to the paramount power of the United States to

control such waters for the purposes of navigation in interstate

and foreign commerce.” United States v. Oregon, 295 U.S. 1, 14

(1935). The transfer of title from the United States, as trustee for

the new state, to the new state is a matter of constitutional law,

not federal grace:

Thus under Pollard's Lessee the State’s title to lands

underlying navigable waters within its boundaries is con-

firmed not by Congress but by the Constitution itself. The

rule laid down in Pollard’s Lessee has been followed in an

unbroken line of cases which make it clear that the title thus

acquired by the state is absolute so far as any federal

principle of land titles is concerned.

6

Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co.,

429 U.S. 363, 374 (1977).

At the same time, this Court has recognized that the United

States may defeat a state’s title to lands underlying navigable

waters by conveying them to a third party prior to statehood.

However, such conveyances will be found only in extraordinary

circumstances:

But because control over the property underlying naviga-

ble waters is so strongly identified with the sovereign power

of government, it will not be held that the United States has

conveyed such land except because of “some international

duty or public exigency.” A court deciding a question of title

to the bed of a navigable water must, therefore, begin with a

strong presumption against conveyance by the United States,

and must not infer such a conveyance “unless the intention

was definitely declared or otherwise made plain,” or was

rendered “in clear and especial words,” or “unless the claim

confirmed in terms embraces the land under the waters of

the cam.” ;

Montana, 450 U.S. at 552 (citations and footnote omitted).

Indeed, such pre-statehood conveyances are so rare that Choctaw

Nation v. Oklahoma, 397 U.S. 620 (1970), holding that the bed

of the Arkansas River was conveyed to three Indian tribes prior to

Oklahoma’s admission to the Union and therefore Oklahoma’s

title was defeated, is “a singular exception” to the otherwise

“established line of cases” holding that title to submerged lands

vests in the states at statehood. Montana, 450 U.S. at 555 n.5.

This Court has never held, or even intimated, that a federal

withdrawal of submerged lands underlying navigable waters—as

opposed to a conveyance to a third party—will defeat a state’s

title under the equal footing doctrine. Indeed, this Court has held

that a federal withdrawal of submerged lands, prior to enactment

of the Submerged Lands Act, 43 U.S.C. § 1301 et seq., did not

defeat a state’s title to those lands under the Act. United States v.

California, 436 U.S. 32 (1978).

The submerged lands at issue in that case constituted part of

the territorial sea, and therefore were not subject to the constitu-

7

tional equal footing doctrine. See United States v. California, 342

U.S. 19 (1947). However, “[t]he very purpose of the Submerged

Lands Act was to undo the effect of [the 1947 California

decision},”’ 436 U.S., at 37, and extend the principles of the

equal footing doctrine to the submerged lands underlying the

territorial sea. United States v. Louisiana, 363 U.S. 1, 16-24

(1960). The Court of Appeals’ decision here is in conflict with

this Court’s determination that a pre-Submerged Lands Act

federal withdrawal (like the 1889 designation of Utah Lake as a

potential reservoir site) cannot defeat a state’s title under that

Act. More significantly, if a pre-Submerged Lands Act with-

drawal has no effect on a state’s statutory title, a fortiori a pre-

statehood withdrawal cannot defeat a state’s constitutional sover-

eign title under the equal footing doctrine.

The lower court’s major error was in treating a pre-statehood

federal withdrawal as tantamount to a pre-statehood conveyance

to a third party. See 780 F.2d at 1518 (Petitioner's Appendix

(“Pet. App.”) at 8a-9a). The distinction between a pre-statehood

conveyance of submerged lands by the United States to a third

party and a pre-statehood federal withdrawal is a substantive one.

Cf. United States v. Utah, 283 U.S. 64, 88 (1930) (“earlier

Executive Order did not constitute a grant”). Where the United

States has conveyed the submerged lands to a third party prior to

statehood, sovereignty and ownership have been severed. Follow-

ing such a conveyance, the entire “bundle of rights that are

commonly characterized as property”® has been transferred to a

third party. No attributes or aspects of ownership remain linked to

sovereignty, and none of those rights remain to be transferred to

the new state.

In the case of a pre-statehood federal withdrawal, however, the

United States has not conveyed the lands to a third party. Instead,

it has merely withdrawn them from the operation of the public

’ After all, prior to the 1947 California decision, the lands underlying

the territorial sea were “assumed by many, and not without reason,” to

fall within the equal footing doctrine. United States v. Louisiana, 363

U.S. 1, 16 (1960).

* Kaiser Aetna v. United States, 440 U.S. 164, 176 (1979).

land laws. Even when reserved for a specific purpose, the federal

government tle to those lands is not enhanced. Cf. California,

436 U.S. at - (“A reservation under the Antiquities Act thus

means no more than that the land is shifted from one federal use,

and perhaps from one federal managing agency, to another”)

(footnote omitted). Since the lands are still in federal ownership,

they remain subject to the constitutional trust in favor of future

states.

There is no resson to conclude, as the Court of Appeals

apparently did, that a transfer of title under the equal footing

doctrine and’a pre-statehood federal withdrawal are wholly in-

compatible and the lands either pass to the state or remain

irrevocably in federal ownership. The better analysis, one which

harmonizes the states’ constitutional right to be admitted to the

Union on an equal footing and the federal government's ability to

discharge its constitutional duties, is that title to the lands vests in

the states at statehood, subject only to those rights surrendered to

the national government in the Constitution.” The Court of

Appeals’ analysis, on the other hand, makes newly-admitted

states’ sovereign title hinge on whether they were admitted before

or after a federal withdrawal. It would be “a perverse application

of the equal-footing doctrine” if state sovereign rights depend on

the date of a state’s admission.'° Oregon ex rel. State Land Board

v. Corvallis Sand & Gravel Co., 429 U.S. at 378.

* These clearly include “the paramount power of the United States to

control such water for purposes of navigation in interstate and foreign

commerce” under the Commerce Clause, article I, section 8, cl. 3,

United States v. Oregon, 295 U.S. at 14, and possibly the Property

Clause, article IV, section 3, cl. 2. E.g., Minnesota ex rel. Alexander v.

Block, 660 F.2d 1240 (8th Cir. 1981), cert. denied 455 U.S. 1007

(1982) (under Property Clause, United States can regulate use of state-

owned submerged lands and waters in Boundary Waters Canoe Area).

'© Such a result would subject a newly-admitted state to the particular

federal executive policy in effect at the time of admission. For example,

“95 million acres—more than one-fourth of the total area of

Alaska—[ was] enclosed within various types of Federal withdrawals

and reservations” at the time Alaska was admitted to the Union. H.

Rep. No. 624, 85th Cong., Ist Sess. 6 (1957). This federal practice,

9

In summary, the principles underlying the equal footing doc-

trine require that a clear distinction be drawn between pre-

statehood conveyances to third parties and pre-statehood federal

withdrawals. The Court of Appeals failed to make that distinc-

tion, and its decision cannot stand in the face of this Court’s prior

decisions.

THE iMPORTANCE OF THE SOVEREIGN RIGHTS AT

ISSUE WARRANTS RFVIEW

In the seminal equal footing doctrine case, this Court recog-

nized that federal ownership of lands underlying navigable waters

poses a serious threat to state sovereignty while state ownership

poses no threat to federal interests:

To give to the United States the right to transfer to a

citizen the title to the shores and the soils under the

navigable waters, would be placing in their hands a weapon

which might be wielded greatly to the injury of State

sovereignty, and deprive the States of the power to exercise a

numerous and important class of police powers. But in the

hands of the States this power can never be used so as to

affect the exercise of any national right of eminent domain or

jurisdiction with which the United States have been invested

by the Constitution. For [state sovereignty is] but municipal

power, subject to the Constitution of the United states, “and

the laws which shall be made in pursuance thereof.”

Pollard’s Lessee, 44 U.S. at 230.

The “injury” that state sovereignty might suffer from the

wielding of this “weapon” by the United States goes well beyond

a mere infringement of a proprietary interest. A state’s sovereign

title to the lands underlying navigable waters is much more than a

simple property right:

widespread throughout many of the more-recently admitted states, had

“been carried to extreme lengths in Alaska” such that many withdrawals

were “either excessive in size or totally unnecessary.” /d. at 6-7.

10

[I]t is a title different in character from that which the

State holds in lands intended for sale. It is different from the

title which the United States hold in the public lands which

are open to pre-emption and sale. It is a title held in trust for

the people of the State that they may enjoy the navigation of

the waters, carry on commerce over them, and have liberty of

fishing therein freed from the obstruction or interference of

private parties. . .. The trust devolving upon the State for the

public, and which can only be discharged by the manage-

ment and control of property in which the public has an

interest, cannot be relinquished by a transfer of the property.

Illinois Central Railroad Company v. Illinois, 146 U.S. 387, 452

(1892). This Court’s comment in Oregon ex rel. State Land

Board v. Corvallis Sand & Gravel Co., 429 U.S. at 381, applies

equally to this case: “Here, however, we are not dealing with

substantive property law as such, but rather with an issue substan-

tially related to the constitutional sovereignty of the States.”

Indeed, a new state’s sovereign ownership of lands underlying

navigable waters is “an inseparable attribute of the equal sover-

eignty guaranteed to it upon admission.” Louisiana, 363 U.S. at

16 (citiation omitted).

The instant case was prompted by the United States’ recent

attempts to transfer interests in the bed of Utah Lake to third

parties: “The controversy that gave rise to this litigation occurred

in the autumn of 1976 when the Bureau of Land Management of

the Department of Interior began to issue oil and gas leases on the

bed of Utah Lake—an Act that the State viewed as a violation of

its ownership and property rights to the bed of Utah Lake.” 780

F.2d at 1516 (Pet. App. at 2a) (footnote omitted). Similar efforts

by the United States to convey lands underlying navigable waters

within the boundaries of pre-statehood federal withdrawals to

third parties have prompted similar cases elsewhere.''

'' Attempts by the United States to transfer submerged lands to third

parties in reliance on a pre-statehood federal withdrawal are at issue in

. Alaska v. United States, Nos. A 83-343, A 84-435 and A 86-181

(Consolidated) (D. Alaska, filed July 5, 1983, October 11, 1984 and

March 27, 1986 respectively), Alaska v. United States, No. A 86-110

(D. Alaska, filed February 21, 1986), Ounalashka Corp. v. Alaska, No.

11

Through this means, the United States threatens to erode state

sovereignty and upset the delicate balance between the inherent

sovereign rights of states and the powers surrendered to the

national government in the Constitution. While Pollard’s Lessee

applied the equal footing doctrine only in the context of title to

the beds of navigable waterbodies, it has since been employed by

this Court to limit even Congress’ contitutional power to impose

conditions on the admission of new states into the Union:'? “The

plain deduction from [ Pollard’s Lessee] is that when a new state

is admitted into the Union, it is so admitted with all of the powers

of sovereignty and jurisdiction which pertain to the original states,

and that such powers may not be constitutionally diminished,

impaired, or shorn away by any conditions, compacts, or stipula-

tions embraced in the act under which the new state came into

the Union, which would not be valid and effectual if the subject of

Congressional legislation after admission.” Coyle v. Smith, 221

U.S. 559, 573 (1911). The equal footing doctrine in the title

navigability context is thus a cornerstone of the broader proposi-

tion, at the heart of our federal system, that all states are “equal in

power, dignity and authority.” Jd. at 567.

Under the Court of Appeals’ decision, however, Utah is denied

the benefit of this basic principle because of pre-statehood federal

executive action, an analysis which could easily be applied to

other states in other contexts. This potential for altering the

fundamental relationship between the states and the federal

government is the reason several of the 30 amici states, including

four of the original thirteen (Georgia, Massachusetts, New

Hampshire and North Caolina), have joined in urging this Court

77-918 (Alaska Superior Court, filed January 31, 1977), Appeal of

Cook Inlet Region, Inc., No. 84-149 (Interior Board of Land Appeals,

filed November 5, 1983), and Appeal of State of Alaska, No. 85-768

(Interior Board of Land Appeals, filed July 10, 1985). The United

States also is asserting that a pre-statehood federal withdrawal defeated

sovereign state title under the equal footing doctrine in United States v.

Alaska, No. 84 Original in this Court. However, it has not yet attempted

to transfer title to those lands to third parties.

'2 Article IV, § 3, cl. 1 provides: “New States may be admitted by the

Congress into this Union; .. .”

12

to grant Utah’s petition, even though the specific question

presented—the effect of a pre-statehood federal withdrawal—has

no direct application to them. The importance of the sovereign

rights at issue, extending well beyond the merits of the instant

case, warrants review by this Court.

CONCLUSION

The Court of Appeals’ decision here is an unwarranted and

unnecessary diminishment of state sovereignty under the equal

footing doctrine. It is not supported by any of this Court's

decisions and is in direct conflict with this Court’s only decisions

addressing a federal withdrawal of submerged lands. Because this

case presents a very basic question concerning the power of the

federal government to defeat sovereign state rights under the

equal footing doctrine, the Court should grant Utah’s petition for

certiorari.

June 1986.

Respectfully submitted,

HAROLD M. BROWN

Attorney General of Alaska

G. THOMAS KOESTER

Assistant Attorney General

(Counsel of Record)

P.O. Box K—State Capitol

Juneau, Alaska 99811

Telephone: (907) 465-3600

CHARLES GRADDICK

Attorney General of Alabama

Rosert K. CorBIN

Attorney General of Arizona

JOHN STEVEN CLARK

Attorney General of Arkansas

JOHN VAN DE Kamp

Attorney General of California

DUANE WOODARD

Attorney General of Colorado

Jim SMITH -

Attorney General of Florida

MICHAEL J. BOWERS

Attorney General of Georgia

Corrine K. A. WATANABE

Attorney General of Hawaii

Jim JONES

Attorney General of Idaho

NEAL F. HARTIGAN

Attorney General of Illinois

LINLEY E. PEARSON

Attorney General of Indiana

RosBerT T. STEPHAN

Attorney General of Kansas

WILLIAM J. GUSTE

Attorney General of Louisiana

FRANCIS X. BELLOTTI

Attorney General of Massachusetts

Epwin LLoyp PITTMAN

Attorney General of Mississippi

13

WILLIAM L. WessTER MIcH

AEL C. TURPEN

Attorney General of Missouri Attorney General of Oklahoma

MIKE GREELY Dave F

ROHNMAYER

Attorney General of Montana Attorney General of Oregon

BRIAN McKay Jim MaTTox

Attorney General of Nevada ‘Attorney General of Texas

STEPHEN E. MERRILL KEN E

; IKENBERRY

Attorney General of New Hampshire Attorney General of Washington

PAUL BARDACKE CHAR

Les G. BROWN

Attorney General of New Mexico Attorney General of West Virginia

Lacy H. THORNBURG BRON

SON C. La FoLi

Attorney General of North Carolina Attorney General of Wisconsi in

NICHOLAS SPAETH A. G. McCLINTock

Attorney General of North Dakota Attorney General of Wyoming