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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 482 U.S. 193

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0118%3A05. Public record. Not legal advice.