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

No. 85-1772 (1)

In the Supreme C

OF THE

United States

OcTOBER TERM, 1986

THE STATE OF UTAH, by and through its

Division OF STATE LANDS,

Petitioner,

VS.

UNITED STATES OF AMERICA; DONALD P. Hobe,

Secretary of the Interior,

RoBerT F. BurRFOorRD, 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 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, IOWA, KANSAS, LOUISIANA,

MASSACHUSETTS, MICHIGAN, MISSISSIPPI,

MISSOURI, MONTANA, NEBRASKA, NEVADA,

NEW HAMPSHIRE, NEW MEXICO, NORTH CAROLINA,

NORTH DAKOTA, OKLAHOMA, OREGON, TEXAS,

WASHINGTON, WEST VIRGINIA, WISCONSIN, AND

WYOMING AS AMICI CURIAE IN SUPPORT

OF PETITIONER

RONALD W. LORENSEN CHARLES A. GRADDICK

Acting Attorney General of Alaska Attorney General of Alabama

G. THOMAS KOESTER ROBERT K. CorBiIN

Assistant Attorney General Attorney General of Arizona

(Counsel of Record) JOHN STEVEN CLARK

P.O. Box K—State Capitol

Juneau, Alaska 99811

Telephone: (907) 465-3600 JOHN VAN De Kamp

Attorney General of California

Attorney General of Arkansas

(Attorney's list continued on inside front cover)

BOWNE OF SAN FRANCISCO. INC. + 190 NINTH ST. « S.F.. CA 94103 + (415) 864 2300

ao

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

NEIL F. HARTIGAN

Attorney General of Illinois

LINLEY E. PEARSON

Attorney General of Indiana

THOMAS J. MILLER

Attorney Genera! of lowa

ROBERT T. STEPHAN

- Attorney General of Kansas

WILLIAM J. GuSTE, JR.

Attorney General of Louisiana

FRANCIS X. BELLOTTI

Attorney General of Massachusetts

FRANK J. KELLEY

Attorney General of Michigan

Epwin LLOYD PITTMAN

Attorney General of Mississippi

WILLIAM L. WEBSTER

Attorney General of Missouri

MIKE GREELEY

Attorney General of Montana

ROBERT M. SPIRE

Attorney General of Nebraska

BRIAN McKay

Attorney General of Nevada

STEPHEN E. MERRILL

Attorney General of New Hampshire

PAUL BARDACKE

Attorney General of New Mexico

Lucy H. THORNBURG

Attorney General of North Carolina

NICHOLAS J. SPAETH

Attorney General of North Dakota

MICHAEL C. TURPEN

Attorney General of Oklahoma

DAVE FROHNMAYER

Attorney General of Oregon

Jim MATTOx

Attorney General of Texas

KEN EIKENBERRY

Attorney General of Washington

CHARLES G. BROWN

Attorney General of West Virginia

BRONSON C. LAFOLLETTE

Attorney General of Wisconsin

ARCHIE G. MCCLINTOCK

Attorney General of Wyoming

oo

QUESTION PRESENTED

Whether a pre-statehood federal withdrawal and reservation

can defeat a state’s sovereign ownership of lands underlying

navigable waters under the equal footing doctrine.

ii

TABLE OF CONTENTS

Page

Oe PUNO NE s oc cacccucsiccncwonceucacs i

INTERES: OF AMICI CURIAE ............00ccc00- l

SUMMARY OF ARGUMENT ....................5. 3

a kbneksnncaeredannaynckeidcadcseenes 4

A Pre-Statehood Federal Withdrawal and Reservation Can-

not Defeat a State’s Sovereign Ownership of Lands

Underlying Navigable Waters Under The Equal Footing

Pac kacisésancitade ceacercerceanea terres 4

iii

TABLE OF AUTHORITIES CITED

Cases

Page

Alaska v. United States, Nos. A 83-343, A 84-485 and A 86-

181 (Consolidated) (D. Alaska, filed July 5, 1983, October

Sig ee cs cc cecccccscncosess il

Alaska Pacific Fisheries v. United States, 248 U.S.78 (1918) 8

Arenas v. United States, 332 U.S. 419 (1944) ........... 7

Arizona v. California, 373 U.S. 546 (1963) ............. 5, 13

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

Cea AME ANE Red Ce EnR Ra eke Xs 6006s 1, 6, 7, 8, 10

Coyle v. Smith, 221 U.S. 559 (1911) .............. 14, 15, 16

Escanaba Co. v. Chicago, 107 U.S. (17 Otto)

th cect enee eel eins 6o0beewen 13, 14

Hynes v. Grimes Packing Co., 337 U.S. 86, 103 (1949)... 7

Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1982) 12

Kaiser Aetna v. United States, 440 U.S. 164 (1979) ...... 8

Knight v. United Land Association, 142 U.S. 161 (1891)... 1

Mann v. Tacoma Land Co., 153 U.S. 273 (1894) ........ 8

Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842)........ 4

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

Cir. 1981) cert. denied, 455 U.S. 1007 (1982)........ 12, 13

Montana v. United States, 450 U.S. 544 (1981) ......... 1,6

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

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

es SE SE cb ccd ccnccedeasedennusess 2,5

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

hie eh kre he Cie die ae EAS Ohh 606 080 GOK 5, 12, 14, 15

Shively v. Bowlby, 152 U.S. 1 (1894) .................. 5,12

United States v. California, 342 U.S. 19 (1947) ......... 9

United States v. California, 436 U.S. 32 (1978) ....... 7,9, 10

United States v. Holt State Bank, 270 U.S. 49 (1926) .... 6

United States v. Louisiana, 363 U.S. 1 (1960)........... 5,9

iV

TABLE OF AUTHORITIES CITED

CASES

Page

United States v. Oregon, 295 U.S. 1 (1935) ............. 5,12

United States v. Sandoval, 231 U.S. 28 (1913) .......... 15

United States v. Utah, 283 U.S. 64 (1930) .............. 7,8

Other Authorities

Public Land Law Review Commission, One-Third of the

EES 2

Sol. Op. M-36911, 86 I.D. 151 (1978) ................. 10

Sol. Op. 36949, 91 1.D. 67 (1983) ......... 06. cee ee eee. 11

Submerged Lands Act, 43 U.S.C. §§ 1301, et seg......... 9

The Status of Federalism in America[:] A Report of the

Working Group on Federalism of the Domestic Policy

re 3

E.C. Baynard III, Public Land Law and Procedure (1986) 2

No. 85-1772

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1986

THE STATE OF UTAH, by and through its

DiviSION OF STATE LANDS,

Petitioner,

VS.

UNITED STATES OF AMERICA; DONALD P. HODEL,

Secretary of the Interior;

RoBerT F. BuRFORD, 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 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, IOWA, KANSAS, LOUISIANA,

MASSACHUSETTS, MICHIGAN, MISSISSIPPI,

MISSOURI, MONTANA, NEBRASKA, NEVADA,

NEW HAMPSHIRE, NEW MEXICO, NORTH CAROLINA,

NORTH DAKOTA, OKLAHOMA, OREGON, TEXAS,

WASHINGTON, WEST VIRGINIA, WISCONSIN, AND

WYOMING AS AMICI CURIAE IN SUPPORT

OF PETITIONER

INTEREST OF AMICI CURIAE

For more than 140 years, this Court consistently has held that

title to lands underlying navigable rivers and lakes is an incident

of sovereignty reserved to the several states, subject only to the

powers surrendered to the national government in the Constitu-

tion. This sovereign ownership vested in the original thirteen

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 to 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-admitted states. '

The only exception to this equal footing doctrine which this

Court has permitted is the very rare situation where the United

States conveyed title to lands underlying navigable waters 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, defeated Utah’s sovereign title to the lakebed under

the constitutional equal footing doctrine.

There are many navigable rivers and lakes within the bounda-

ries of several of the states appearing as amici curiae. A number

of these navigable waterbodies lie within the exterior boundaries

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

(1981), and cases cited.

> The only time this Court has found such a conveyance was Choctaw

Nation v. Oklahoma, 397 U.S. 620 (1970), characterized in Montana as

“a singular exception” to the otherwise “established line of cases,” 450

U.S. at 555 n.5, holding that title to submerged lands vests in the states

at statehood. To be distinguished are cases in which this Court has

recognized the validity of grants by foreign governments prior to the

United States acquiring the territory. See e.g., Knight v. United Land

Association, 142 U.S. 161 (1891) (pre-territorial Mexican grant).

2

of pre-statehood federal withdrawals and reservations’ similar to

the pre-statehood federal designation of Utah Lake as a potential

reservoir site. Accordingly, and in light of the generally recog-

nized excessive use of federal withdrawal authority,’ a number of

the amici states have a direct proprietary interest in the outcome

of this case.

But the issue here goes well beyond a mere question of title:

“Here, however, we are not dealing with substantive property law

as such, but rather with an issue substantially related to the

constitutional sovereignty of the States.” Oregon ex rel. State

Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 381

(1977). The specific issue presented in this case—the effect of a

pre-statehood federal withdrawal and reservation on a state’s

>The terms “withdrawal” and “reservation,” although commonly

used together, denote distinct concepts. A “withdrawal” of public lands

removes them from settlement, sale, or entry under some or all of the

public land laws. See E. C. Baynard III, Public Land Law and

Procedure, § 5.1 at 148-151 (1986). A “reservation” reserves the lands

for some particular use, purpose or program. /d., § 5.36 at 179.

*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 Review Commission, One Third of the Nation's Land

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

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

Alaska—[was] enclosed within various Federal withdrawals and reser-

vations” at the time Alaska was admitted to the Union. H. Rep. No.

624, 85th Cong., Ist Sess. 6 (1957). This federal practice, 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.

3

sovereign title under the equal footing doctrine—has significant

implications beyond those respecting sovereign state title to lands

underlying navigable waters. This case may be viewed as but one

example of an increasing federal encroachment on state sover-

eignty,’ and presents a basic question concerning the relationship

between the inherent sovereignty of the several states and the

powers surrendered to the national government in the Constitu-

tion. As such, it is of vital importance to all amici states.

SUMMARY OF ARGUMENT

Ownership of the beds of navigable waterbodies is an inherent

attribute of state sovereignty under the equal footing doctrine.

The only exception to this doctrine is the very rare circumstance

where the United States has conveyed title to lands underlying

navigable waters to a third party prior to statehood.

This Court has never held that a federal withdrawal and

reservation of lands underlying navigable waters—as distin-

guished from a conveyance to a third party—defeats a state’s

sovereign title under the equal footing doctrine. Indeed, this

Court has recognized that a federal withdrawal and reservation,

even if it includes submerged lands, is not a conveyance and has

no effect on title to the lands.

* Even the federal executive’s Working Group on Federalism, chaired

by the head of the Office of Legal Counsel in the Department of Justice,

has recognized this gradual change in the relationship between the

national government and the states. See The Status of Federalism in

America{:] A Report of the Working Group on Federalism of the

Domestic Policy Council (November 1986). Amici states find it ironic

that the United States, while decrying “. . . the erosion of federalism in

this country [and t]he nationalization of state sovereignty,” id. at 2,

simultaneously seeks in this case to nationalize state sovereign sub-

merged lands by arguing that limited pre-statehood federal ac-

tion—designation of Utah Lake as a potential reservoir site, a purpose

for which it has never been used—totally defeated Utah's sovereign title

under the constitutional equal footing doctrine Proprietary interests, it

would seem, take precedence over principle.

4

The correct analysis is that title to the lands vests in the states

at statehood under the constitutional equal footing doctrine,

subject only to those powers surrendered to the national govern-

ment in the Constitution. Where it is asserted that pre-statehood

federal action, not amounting to a conveyance, somehow affects a

new state’s sovereign title, the proper test is whether that federal

action, if it had been taken after the new state’s admission, would

validly supersede sovereign state rights. This is the same test this

Court prescribed for determining the validity of conditions im-

posed by Congress under its article IV, section 2, clause | power

to admit new states into the Union.

Under this test, a post-statehood designation of Utah Lake as a

potential reservoir site would have had no effect on the automatic

transfer of sovereign title to Utah upon its admission. Congress

could not have corditioned Utah’s admission to the Union on a

pre-statehood federal designation having that effect, and the pre-

statehood federal designation, standing alone, cannot be given an

effect which Congress could not achieve under its express consti-

tutional power to admit new states.

The decision below is an unwarranted and unnecessary dimin-

ishment of state sovereignty under the equal footing doctrine, and

must be reversed.

ARGUMENT

A PRE-STATEHOOD FEDERAL WITHDRAWAL AND

RESERVATION CANNOT DEFEAT A STATE’S SOVER-

EIGN OWNERSHIP OF LANDS UNDERLYING NAVI-

GABLE WATERS UNDER THE EQUAL FOOTING

DOCTRINE

This Court repeatedly has recognized that the several states

own the beds of navigable waterbodies as an inherent attribute of

state sovereignty. The original thirteen states own the lands

underlying navigable waters within their boundaries as the sover-

eign successors 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 thirteen states, and

accordingly must hold the same title to the lands underlying

i wee Dae. -

5

navigable waters within their respective boundaries. Pollard’s

Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845). Under this equal

footing doctrine, “the 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. Bowlby, 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). Indeed, a new state’s sovereign ownership of lands

underlying navigable waters is “an inseparable attribute of the

equal sovereignty guaranteed to it on admission.” United States v.

Louisiana, 363 U.S. 1, 16 (1960) (citation omitted).

The transfer of title from the United States, as trustee for the

new state, to the new state is automatic, Arizona v. California,

373 U.S. 546, 597 (1963), and 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.

Corvallis Sand & Gravel, 429 U.S. at 374.

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

transfer to the State of title to lands underlying navigable waters

cannot occur where the United States has conveyed them to a

third party prior to statehood. In that event, there is no title in the

6

United States to which the state can succeed. However, such

conveyances will be found only in extraordinary circumstances:

Because control of the property underlying navigable wa-

ters 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 stream.”

Montana, 450 U.S. at 552 (citations and footnote omitted). 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 to the bed was defeated, is “a singular exception” to the

otherwise “established line of cases” holding that title to sub-

merged lands vests in the states at statehood. /ontana, 450 U.S.

at 555 n.5.

Here, of course, it is not even suggested that there was a

conveyance of submerged lands; instead, it is urged that a pre-

statehood withdrawal and reservation has the same effect a

conveyance would have had on sovereign state title. This Court

has never held, or even intimated, that a federal withdrawal and

reservation 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.° Nonetheless, while ac-

* Even where the United States has granted third party rights to

submerged lands prior to statehood, a new state’s title is not necessarily

defeated. Instead, a new state’s rights “are restricted or qualified

accordingly.” United States v. Holt State Bank, 270 U.S. 49, 55 (1926).

In other words, while a pre-statehood fee simple conveyance may defeat

a new state’s title, the pre-statehood creation of a lesser third party

7

knowledging that this Court has referred only to pre-statehood

conveyances as having that possible effect, the lower court con-

cluded that “the same principles also apply to pre-statehood

reservations or withdrawals by the United States.” 780 F.2d at

1518 (Petitioner's Appendix at 8a-9a; citations omitted).

Amici states agree with the lower court that the principle of

construction applicable to an asserted pre-statehood federal con-

veyance—i.e., that the bed of a navigable waterbody is not

conveyed unless the intention to do so is made clear and

plain—also applies when determining whether submerged lands

were intended to be included within a pre-statehood federal

withdrawal and reservation. See 780 Fed.2d at 1518-1519 (Peti-

tioner’s Appendix at 9a). However, that does not address the real

issue presented here.

The real issue is whether a pre-statehood federal withdrawal

and reservation, assuming it included the bed of a navigable

waterbody, has the same effect on a new state’s sovereign title

ihat a pre-statehood conveyance would have. It does not. In

several cases, this Court has been careful to recognize that a

federal withdrawal and reservation, even if it included submerged

lands is not a conveyance.’ and does not affect title to the lands.

See, e.g., United States v. California, 436 U.S. 32, 40-41 (1978)

(a federal withdrawal and reservation for a national monument

“thus means no more than that the land is shifted from one

federal use, and perhaps from one federal managing agency, to

another” and “did not and could not enhance the strength of the

Government’s basic claim to a property interest in the submerged

lands”) (footnote omitted); Hynes v. Grimes Packing Co., 337

U.S. 86, 103 (1949) (an executive withdrawal for Indians was

merely a reservation “ ‘for a particular governmental use,’ not a

disposal of the area”) and 115-116 (temporary use, not final

disposition, was at issue); United States v. Utah, 283 U.S. 64, 88

interest results in a new state taking title, subject at most to a valid

existing right.

” A “conveyance” includes the passage of title by patent, Arenas v.

United States, 332 U.S. 419, 421-422 (1944), and the vesting of

equitable title in third parties, as in Choctaw Nation.

8

(1930) (a pre-statehood federal withdrawal and reservation “did

not constitute a grant”); Alaska Pacific Fisheries v. United States,

248 U.S. 78, 88 (1918) (a reservation for the benefit of Indians

“was not in the nature of a private grant’).

The distinction between a pre-statehood conveyance of sub-

merged lands by the United States to a third party and a pre-

statehood federal withdrawal and reservation is a substantive one.

In the rare circumstances where the United States has validly

conveyed submerged lands to a third party prior to statehood, as

in Choctaw Nation, sovereignty and ownership have been severed.

Following 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 and reserva-

tion, however, the United States has not conveyed the lands to a

third party. Instead, such action merely withdraws them from the

operation of the public land laws and reserves them for some

limited specific purpose.

A pre-statehood federal withdrawal of lands, as distinct from a

reservation, can have no material effect on submerged lands

underlying navigable waters. A withdrawal merely removes lands

from the general public land laws relating to settlement, entry,

location and sale. Submerged lands underlying navigable waters

are reserved to future states under the constitutional equal footing

doctrine; Congress has never made them subject to disposal under

the general land laws. Mann v. Tacoma Land Co., 153 U.S. 273,

283-284 (1894).

A pre-statehood federal reservation reserves the lands for some

limited specific purpose. Regardless of the purpose of the limited

reservation, however, since the lands are still in federal ownership

and necessarily remain subject to the pre-existing constitutional

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

* See n.3 supra.

9

reservation of submerged lands under which the United States

holds the lands in trust for future states.

This Court addressed the effect of a federal withdrawai and

reservation of submerged lands on a state’s title to those lands in

United States v. California, 436 U.S. 32 (1978). The submerged

lands at issue in that case constituted a part of the territorial sea

and therefore were not subject to the constitutional equal footing

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

even though such lands were “assumed by many, and not without

reason,” to fall within the doctrine. United States v. Louisiana,

363 U.S. 1, 16 (1960). In response to the 1947 California

decision, Congress passed the Submerged Lands Act, 43 U.S.C.

§§ 1301 et seg. “The very purpose of the Submerged Lands Act

was to undo the effect of this Court’s 1947 decision in United

States v. California, 332 U.S. 19,” 436 U.S. at 37, and extend the

principles of the equal footing doctrine to the submerged lands

underlying the territorial sea. Louisiana, 363 U.S. at 16-24.

The 1978 California case centered on a 1949 Presidential

Proclamation which enlarged the Channel Islands National Mon-

ument to include a one-mile belt of submerged lands surrounding

Anacapa and Santa Barbara Islands offshore California. That

federal withdrawal and reservation of submerged lands pre-dated

the Submerged Lands Act, and the United States contended that

the lands therefore were excepted from conveyance to California

under the Act. However, this Court held that a pre-Submerged

Lands Act federal withdrawal and reservation (like the 1889

designation of Utah Lake as a potential reservoir site) was only a

change in federal use and management of the lands and did not

strengthen any federal proprietary interest. Jd. at 40-41. Accord-

ingly, a federal withdrawal and reservation cannot defeat a state’s

title under that Act.'°

If a pre-Submerged Lands Act withdrawal and reservation has

no effect on a state’s statutory title, which is, after all, merely a

matter of Congressional grace, a fortiori a pre-statehood with-

'° Notwithstanding Utah’s right under the constitutional equal footing

doctrine, it independently is entitled to the bed of Utah Lake under the

Submerged Lands Act as construed in California.

10

drawal and reservation cannot defeat a state’s constitutional

sovereign title under the equal footing doctrine. Even when they

are withdrawn and reserved for a specific purpose, the federal

government'’s title to submerged lands underlying navigable wa-

ters is not enhanced. California, 436 U.S. at 40-41. On the other

hand, as a matter of constitutional law, “the title thus acquired by

the State is absolute so far as any federal principle of land titles is

—” Corvallis Sand & Gravel, 429 U.S. at 374 (emphasis

added).

The United States, however, takes the position that a pre-

statehood federal withdrawal and reservation, for a limited pur-

pose and frequently for a limited time, has the much more

significant effect of defeating a state’s constitutional equal footing

rights for all purposes and all time. In this case, it argues that the

pre-statehood designation of Utah Lake as a potential reservoir

site (a purpose for which it has never been used) defeated Utah’s

sovereign title and therefore the United States, not Utah, now is

free to lease the lakebed for the wholly unrelated purpose of oil

and gas exploration.''

This is not the first time the federal government has taken this

position. An even more egregious example appears in Sol. Op. M-

36911, 86 I.D. 151 (1978). In 1943, Acting Secretary of Interior

Abe Fortas issued Public Land Order No. 82 (“PLO 82”) which,

among other things, withdrew 48.8 million acres, constituting all

of Alaska’s North Slope, and reserved the minerals therein “for

use in connection with the prosecution of [World War II].”

Although the war ended in 1945, PLO 82 was not revoked until

1960, shortly after Alaska was admitted to the Union in !959.

Notwithstanding that (1) PLO 82 only reserved minerals, (2) the

purpose of that limited reservation expired with the end of the war

in 1945, and (3) it was revoked entirely in 1960, the Solicitor of

''“The controversy that gave rise to this litigation occurred in the

autumn of 1976 when the Bureau of Land Management of the Depart-

ment 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 (Petitioner’s

Appendix at 2a) (footnote omitted).

eee ee -

PA

11

Interior in 1978 concluded that it nonetheless totally defeated

Alaska’s sovereign title to all submerged lands underlying naviga-

ble waters in the entire 48.8 million acre area.'”

In this bootstrap manner, the federal government is systemati-

cally seeking to transform narrow pre-statehood federal actions

having no effect on titlke—in this case, a never-implemenied

designation of a potential reservoir site; in the case of PLO 82, a

temporary, now revoked reservation of only the minerals for use in

a war which ended fourteen years before statehood—into perma-

nent federal retention of the entire fee. Such over-reaching is not

necessary to any legitimate federal interest. What is worse, it can

come only at the expense of the states’ sovereign rights under the

constitutional equal footing doctrine, and would fundamentally

alter the relationship between the states and the United States.

This Court has recognized that federal ownership of lands

underlying navigable waters, as now claimed by the United

States, 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

ihe 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

'? Apparently recognizing the potentially devastating effect of this

opinion on Alaska and its oil company lessees in the Prudhoe Bay area,

the Solicitor concluded in 1983 that, while (in his opinion) PLO 82

defeated Alaska’s sovereign title, the state could gain title to submerged

lands underlying navigable waters by selecting them under the Alaska

Statehood Act. See Sol. Op. 36949, 91 I.D. 67 (1983). The Bureau of

Land Management has subsequently confirmed Alaska’s title under this

attentuated approach. The United States continues to press its argument

against sovereign state title, however, with respect to submerged lands in

the National Petroleum Reserve-Alaska in Alaska v. United States, Nos.

A83-343, A84-485 and A86-181 (Consolidated) (D. Alaska, filed July

§, 1983, October 11, 1984 and March 27, 1986, respectively).

12

exercise of any national right of eminent domain or jurisdic-

tion 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:

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

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

title which the United States holds in the public lands which

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

the peopie 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.

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

(1982). The lower court failed to acknowledge these fundamental

principles and the analytic approach which they require.

The proper analysis, one which harmonizes a state’s constitu-

tional 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 powers surrendered to the national govern-

ment in the Constitution.'’ Shively, 152 U.S. at 57-58. Under this

'’ The most obvious example of these is “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, clause 3. United States v. Oregon, 295 U.S. at 14. While

amici states do not necessarily agree, one lower court has found that

these powers also include the power to regulate the use of state-owned

submerged lands and waters to protect federal property interests under

the Property Clause, article IV, section 3, clause 2. See Minnesota ex

13

approach, transfer of sovereign title to a new state and the federal

government's ability to discharge its national responsibilities are

not incompatible, as the lower court apparently assumed. The

federal government’s exercise of the powers surrendered to it in

the Constitution simply does not depend on federal ownership of

the beds of navigable waters. See, e.g., Arizona v. California, 373

U.S. 546, 597-598 (1963) (state ownership of submerged land

“cannot be accepted as limiting the broad powers of the United

States to regulate navigable waters under the Commerce Clause

and to regulate government lands under Art. IV, §3 of the

Constitution”).

Indeed, even where the states clearly have surrendered such a

power to the national government, a pre-statehood exercise of

that power will not necessarily diminish a newly-admitted state's

sovereign rights. Pre-statehood federal action should be presumed

an exercise of Congress’ express power, under article IV, section

3, clause 2, to “make all needful rules and regulations respecting

the territory or other property belonging to the United States.”

Such “needful rules and regulations respecting the territory

should not be viewed, as the United States contends here, as

defeating or otherwise limiting a new state’s sovereign rights

where such a result is not required.

For example, in Escanaba Co. v. Chicago, 107 U.S. (17 Otto)

678 (1883), it was contended that a pre-statehood provision in

the Northwest Ordinance of 1787, providing that the navigable

waters of the territory were to remain free for public use, limited

Illinois’ post-admission power to construct bridges across the

Chicago River. This Court stated:

[The Ordinance’s] provisions could not control the au-

thority and powers of the State after her admission.

Whatever the limitation upon her powers as a government

whilst in a territorial condition, whether from the Ordinance

of 1787 or the legislation of Congress, it ceased to have any

rel. Alexander v. Block, 660 F.2d 1240 (8th Cir. 1981), cert. denied 455

U.S. 1007 (1982) (under the Property Clause, the United States can

regulate the use of state-owned submerged lands and waters in the

Boundary Waters Canoe Area).

14

operative force, except as voluntarily adopted by her after she

became a State of the Union. On her admission, she at once

became entitled to and possessed of all the rights of domin-

ion and sovereignty which belonged to the original States.

She was admitted and could be admitted only on the same

footing with them. The language of the Act of Admission is

“on an equal footing with the original States in ail respects

whatever.” Equality of constitutional rights and power is the

condition of all the States of the Union, old and new. Illinois,

therefore, as was well observed by counsel, could afterwards

exercise the same power over rivers within her limits that

Delaware exercised over Blackbird Creek, and Pennsylvania

over the Schuylkill River.

107 U.S. (17 Otto) at 688-689 (emphasis in original; citation

omitted).

Amici states do not suggest that pre-statehood federal action

can have no continuing effect after admission of a new state to the

Union. However, where it is asserted that pre-statehood federal

action, not amounting to a conveyance, somehow affects a new

State’s sovereign title under the equal footing doctrine, as is urged

here, the proper test is whether that federal action, if it had been

taken after the new state’s admission, would validly supersede

State sovereign rights.

This is the same test this Court described for determining the

validity of conditions imposed by Congress under its article IV,

section 2, clause 1 power to admit new states into the Union. In

Coyle v. Smith, 221 U.S. 559 (1911), it was contended that a

provision in the 1906 Act admitting Oklahoma to the Union

precluded the relocation of the state capitol from Guthrie to

Oklahoma City. In rejecting this contention, this Court drew on

the equal footing doctrine of Pollard's Lessee: “The plain deduc-

tion 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

ee

15

Congressional legislation after admission.” Coyle 221 U.S. at 573

(emphasis added); compare United States v. Sandoval, 231 USS.

28 (1913) (a pre-statehood federal prohibition on the introduc-

tion of alcohol into Indian country, reiterated in the New Mexico

Enabling Act, does not encroach on that State's sovereign police

power after admission because it was a legitimate exercise of

Congress’ express power to regulate commerce with Indian

tribes).

i icularly appropriate to apply the Coy/e analysis in this

Py poo ie equal footing doctrine of Pollard’s

Lessee, which applied it only in the context of title to the beds of

navigable waterbodies, to the broader context of sovereign state

rights generally. Its application here brings it full circle, once

again applying it in the title navigability context from which it

came.

Applying the Coyle analysis to this case is straightforward. A

post-statehood federal designation of Utah Lake as a potential

reservoir site would not have affected the automatic transfer of

sovereign title to Utah. Accordingly, under Coyle, Congress could

not have conditioned Utah’s admission to the Union on the pre-

statehood federal designation having that effect. A fortiori, the

pre-statehood federal designation, standing alone, clearly cannot

be given an effect which Congress could not achieve under its

express constitutional power to admit new states.

Amici states believe this analytic approach strikes the proper

balance between the inherent sovereign rights of the several states

and the powers surrendered to the national government in the

Constitution. On the one hand, it avoids the situation presented

here where the lower court held that the limited pre-statehood

federal withdrawal and reservation of Utah Lake as a potential

reservoir site, never implemented, totally defeated Utah $ sover-

eign title under the equal footing doctrine. At the same time, it

ensures that the several states’ inherent sovereign rights under the

equal footing doctrine do not detract from or limit the United

States’ ability to discharge its constitutional responsibilities.

The psientia! implications of this case go to the heart of the

relationship between the several states and the national govern-

16

ment. This Court’s development and consistent application of the

equal footing doctrine in the title navigability context merely

reflects the broader proposition, central to our federal system, that

all states are “equal in power, dignity and authority.” Coyle, 221

US. at 567. Sovereign state rights, including a state’s sovereign

title to submerged lands (in the absence of a valid pre-statehood

conveyance), cannot turn on pre-statehood federal action. The

lower court’s decision, denying Utah’s sovereign title to the bed of

Utah ws because of pre-statehood federal action, must be

reversed. :

CONCLUSION

The decision below is an unwarranted and unnecessary dimin-

ishment 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 decision addressing a federal

withdrawal and reservation of submerged lands. For the foregoing

reasons, as well as those advanced by petitioner State of Utah, the

decision below must be reversed.

December 1986.

Respectfully submitted,

RONALD W. LORENSEN

Acting Attorney General

of Alaska

By: G. THOMAS KOESTER

Assistant Attorney General

(Counsel of Record)

RONALD W. LORENSEN

Acting Attorney General of Alaska

G. THOMAS KOESTER

Assistant Attorney Generai

(Counsel of Record)

CHARLES A. GRADDICK

Attorney General of Alabama

RoBeRT K. CORBIN

Attorney General of Arizona

JOHN STEVEN CLARK

Attorney General of Arkansas

JOHN VAN DE Kamp

Attorney General of California

DUANE WOODWARD

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

NeiL F. HARTIGAN

Attorney General of Illinois

LINLEY E. PEARSON

Attorney General of Indiana

THOMAS J. MILLER

Attorney General of lowa

RoBERT T. STEPHAN

Attorney General of Kansas

WILLIAM J. GusTE, JR.

Attorney General of Louisiana

FRANCIS X. BELLOTTI

Attorney General of Massachusetts

FRANK J. KELLEY

Attorney General of Michigan

EpwIN LLOYD PITTMAN

Attorney General of Mississippi

WILLIAM L. WEBSTER

Attorney General of Missouri

MIKE GREELEY

Attorney General of Montana

ROBERT M. Spire

Attorney General of Nebraska

BRIAN McKay

Attorney General of Nevada

STEPHEN E. MERRILL

Attorney General of New Hampshire

PAUL BARDACKE

Attorney General of New Mexico

Lucy H. THORNBURG

Attorney General of North Carolina

NICHOLAS J. SPAETH

Attorney General of North Dakota

MICHAEL C. TURPEN

Attorney General of Oklahoma

DAVE FROHNMAYER

Attorney General of Oregon

Jim MATTOX

Attorney General of Texas

KEN EIKENBERRY

Attorney General of Washington

CHARLES G. BROWN

Attorney General of West Virginia

BRONSON C. LAFOLLETTE

Attorney General of Wisconsin

ARCHIE G. MCCLINTOCK

Attorney General of Wyoming