Motion — United States v. Alaska

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No. 118, Original

Iu the Supreme Court of the Unite

OCTOBER TERM, 1991

UNITED STATES OF AMERICA, PLAINTIFF

Vv.

STATE OF ALASKA

ON BILL OF COMPLAINT

MOTION OF THE

UNITED STATES FOR SUMMARY JUDGMENT

AND

BRIEF FOR THE UNITED STATES

IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

KENNETH W. STARR

Solicitor General

BARRY H. HARTMAN

Acting Assistant Attorney General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor General

MICHAEL W. REED

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

hi

QUESTION PRESENTED

Whether the Secretary of the Army may decline to

issue a permit for construction of an artificial addi-

tion to the coast line unless the coastal State agrees

that the construction will be deemed not to alter the

location of the federal-state boundary.

(T)

a

Py ee ee ee ee a ee ee ,

TABLE OF CONTENTS

Motion For Summary Judgment ......................---..---.....

Brief For The United States In Support Of Motion

For Summary Judgment .....................-----------—--..-0--+--

Nee neucesesuscoenosccs

Statute and regulations involved .............................

Statement:

A. Federal/state ownership of submerged lands......

B. The Secretary of the Army’s authority to regu-

late the placement of structures in navigable

C. The present dispute Saeibiaiie

Argument:

The Secretary of the Army may decline to issue a

permit for construction of an artificial addition to

the coast line unless the coastal state agrees that the

construction will be deemed not to alter the location

of the federal-state boundary —...............00..00--..

A. The Secretary may consider the public interest

in determining whether to issue a permit under

Section 10 of the Rivers and Harbors Appropria-

EE —

B. The Secretary may refuse to issue a Section 10

permit for a coastal structure based on the

effects of the structure on the location of the

federal-state boundary ~........................-0.20---22--------

C. The Secretary lawfully declined to issue a Sec-

tion 10 permit in this case unless the State of

Alaska executed a disclaimer preserving the

federal-state boundary . .......2.0002..2202.22e eee

ESS ee 7

TABLE OF AUTHORITIES

Cases:

American Hospital Ass’n Vv. NLRB, 111 S. Ct.

ELE SE

10

13

15

15

24

28

30

23

IV

‘ 3

Cases—Continued : Page

Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428 (1989) _.......--..2------eeeee eee 9

Bankers Life & Casualty Co. v. Callaway, 530 F.2d

Ny Py TI fain ccncccusinetiomiciecinbddimstebeentndhnieass 21

Chevron U.S.A. Inc. Vv. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) 0000 15, 16

Citizens Committee for Hudson Valley v. Volpe,

425 F.2d 97 (2d Cir.), cert. denied, 400 U.S. 949

I ak is cinema a a a lane 21

Deltona Corp. v. United States, 657 F.2d 1184 (Ct.

Cl. 1981), cert. denied, 455 U.S. 1017 (1982) 21

Jay V. Boyd, 351 U.S. 345 (1956) —.... 16

NLRB v. Curtin Matheson Scientific, Inc., 110

ic ts aa 23

Nollan v. California Coastal Comm’n, 483 U.S. 825

RR EE DS SER Eee RE AO es 30

Shepard v. NLRB, 459 U.S. 344 (1983) 2.0.00... 23

Udall v. FPC, 387 U.S. 428 (1967)... 18

United States v. California:

I oo csmsetentinniieninstnesesiniaanasnn 4, 25

a a cchennnonate 6, 25, 26, 27

(RIM tea RE Oe ec Gag 6

United States v. Fausto, 484 U.S. 439 (1987)... 23

United States v. Joseph G. Moretti, Inc., 478 F.2d

Se SE, TEI ‘wnccticcrhsiciicinsstcckdanemncosiaenuansionmnndinn 21

United States v. Louisiana, 394 U.S. 11 (1969) ..... 6, 27

United States v. Pennsylvania Industrial Chemical

Corp., 411 U.S. 655 (1978) ...........000.eee ee. 18

United States v. Republic Steel Corp., 362 U.S. 482

III vcsinisiinsstencicaiidubdianaiidinismantauntatabinabeblansnibieatize 8,19

United States ex rel. Greathouse v. Dern, 289 U.S.

I il cn 19, 20, 21

United States ex rel. Greathouse Vv. Hurley, 63

f & @: :h. eae 20, 21

Webster v. Doe, 486 U.S. 592 (1988) 17

Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970), cert.

denied, 401 U.S. 910 (1971) —.00 17-18, 21, 23

Treaties, Constitution, statutes and regulations:

ei ee EO OR M.S ear eee 1

Convention on the Territorial Sea and the Contigu-

ous Zone, ratified by the United States, Apr.

* %& Ls | See ee 24-25

v

Statutes and regulation—Continued : Page

Pp" % 12 Sk Reece 25

United Nations Convention on the Law of the Sea,

U.N. Doc. A/CONF. 62/122 (1982) .................... 25

Clean Water Act, 33 U.S.C. 1251 et seq. ......... oe

NT, BD GD occ escctuesiennnintneceremtoorennnewens 18

Coastal Zone Management Act of 1972, 16 U.S.C.

BABE GB BBE, ~.--..onccccnececccceecccrnacncsccsssovvencnvesaronsessances 22

Ex.dangered Species Act of 1973, 16 U.S.C. 1531

CB CIID. cecsenncnsncesinconncnevenececsacecnsesentsnesnsesseseatnsvesmonsowocenes 22

Fish and Wildlife Coordination Act, 16 U.S.C. 661

et seq. a cntsencatemiublicmanteiiageaudmeietmmnnaiibiaieatonevers 22

Marine Mammal Protection Act of 1972, 16 U.S.C.

1361 et seq. ........ a Se aeaetinneupeianhbigesenaets 22

Marine Protection, Research, and Sanctuaries Act

of 1972, 16 U.S.C. 1481 et seq. ..................-...-------- 22

National Environmental Policy Act, 42 U. S.C. 4321

CB CBG. ..ccrccererencnnrensonavenennnscescsccesenenscsseansscsnssensosaseosenss 22

Outer Continental Shelf Lands Act, 43 U. S.C. 1331

OE CI hacasesececcncsnnsecstcttnrwececsevenees Re Se eS — +

43 U.S.C. 1331 (a) ........ ieee eC EMD 5

I ois enssasesaenabahaneneetie 5

43 U.S.C. 1332 (1) si i Sie a Fe ae ane 5

43 U.S.C. 1332 (3) ......... PAM eR ee 5, 25

43 U.S.C. 1333 (a) _... AE ; 5

a cecenleeieneieniaes 5

Rivers and Harbors Appropriation Act of 1899,

33 U.S.C. 401 et seq.:

§ 10, 33 U.S.C. 408 ...... peacantadtsedideenninesunaiteentshd _.... passim

§ 13, 33 U.S.C. 407 .. os Breer 18

Submerged Lands Act, 43 U. s. C. 1301 et SY scaesnsd 3, 4, 22

I on crac mpeneeianincedinnnes 5, 6

I ssn mactiecoviesinanendnenbbianmnennnetel ita 4,6

I cc vcicasocsnnesctmensebesewes ‘isicapecpanamasdensiah 4,9

I oi sss cseushaenevruiieostencdcenmmmeniabeneseet 6

IED 1 .csiesscusnstecenstcctncsnnnsbuann Aer 12

I a saenliddetieremnianienpbaeneenes nA 18

33 C.F.R.:

Section 209.120(d) (4) (1969) 0.0000... 24

Section 320.1... Aah \ OEE AARON Re ac aati = 22

VI

Statutes and regulations—Continued: Page

AS 2 18

SESE SN ea Eo St 22

Isamu 3, 8, 24

AT A aS a 13

I 8

EL AR EET A NO, Be 24

Section 320.4(b)-(r) .000-. 9

Section 320.4(c) 000000000... atin cagitadaadt amare 24

I a 24

Section 820.4 (@) ..................-ccccccccceccceceeeceeceeeeceeee 24

Section 320.4(f) 0000000. 9, 10, 13, 16, 24, 25, 26, 28

I 24

Section 320.4(h) ......... BLED ORE MeN tn aS NS 24

Section 320.4(i) 0.00000... Sane AR AA ID Sets 24

EE | ‘atiahiosh) 24

Bestion SH0.4(k) ...................................-.....-. Sanus 24

SURE AAG eA I a RAE 24

Section 320.4(m) A eee POP) Ee 24

SE EAN, ea asaciedaia 24

ES nn er Serene 24

ETP ER TSI SmI 24

Res ee 24

SEER RRREREES eee. Se eee 24

, Fee See Naahennieadatuns akan one dedaaeaniol ae ; 10

Pt. 325... LEE ee SURAT ise ewan ote ee NEOs 10

Section 325.3 dudeaibenaiacadaslele 10, 28

cc ee ne OIE Se 9

Miscellaneous:

33 Fed. Reg. (1968) :

EE a ee ae eee eee CERT 22, 27

RI or aE SOY ae eR Sa 27

39 Fed. Reg. 12,115 (1974) _.......- 22, 27

42 Fed. Reg. 37,122 (1977)... SRE ate 22

eee 12, 28

56 Fed. Reg. 28,656 (1991) 0. 13, 28

H.R. Rep. No. 917, 91st Cong., 2d Sess. (1970) _.. 22

Presidential Proclamation No. 5928, 54 Fed. Reg.

Rito EAs A PRR A ls ee 9

Iu the Suprenw Court of the United States

OCTOBER TERM, 1991

No. 118, Original

UNITED STATES OF AMERICA, PLAINTIFF

Vv.

STATE OF ALASKA

ON BILL OF COMPLAINT

MOTION OF THE

UNITED STATES FOR SUMMARY JUDGMENT

The United States of America, by its Solicitor Gen-

eral, moves for entry of summary judgment in its

favor in this case. The United States initiated this

action to quiet title to certain offshore submerged

lands beneath Norton Sound, near Nome, Alaska.

The State of Alaska has asserted a claim to those

lands under the Submerged Lands Act, 43 U.S.C.

1301 et seq., on the basis that the City of Nome has

constructed port facilities projecting into Norton

Sound that extend the coast line and alter the fed-

eral-state boundary. The United States submits that

Alaska has waived all such claims through a dis-

claimer that it executed in connection with the Sec-

retary of the Army’s issuance of a federal permit,

under Section 10 of the Rivers and Harbors Appro-

priation Act of 1899, 33 U.S.C. 403, for construction

eo

(i)

ii

of the Nome port facilities. Alaska answers that the

disclaimer is invalid as a matter of law.

The United States and the State of Alaska have

filed a joint stipulation of facts with this Court, and

there is no disputed issue as to any material fact.

The controlling legal issue is whether the Depart-

ment of the Army had legal authority to decline to

issue the Section 10 permit unless Alaska executed

the disclaimer. For the reasons set forth in the ac-

companying brief, the United States submits that the

Department of the Army may refuse to issue a Sec-

tion 10 permit on account of the effects of the pro-

posed construction on the location of the federal-state

boundary and that the Department lawfully declined

to issue the permit for the Nome facilities until

Alaska executed a disclaimer preserving that bound-

ary. The disclaimer, accordingly, is valid, and the

United States is entitled to judgment as a matter of

law. - .

The United States therefore requests that this

Court enter a judgment declaring that the City of

Nome’s construction of its port facilities did not alter

the State of Alaska’s entitlement to submerged lands

in Norton Sound.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

OCTOBER 1991

SS ee a

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 118, Original

UNITED STATES OF AMERICA, PLAINTIFF

vz.

STATE OF ALASKA

ON BILL OF COMPLAINT

BRIEF OF THE UNITED STATES

IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

JURISDICTION

On January 7, 1991, the United States requested

leave to commence this original action. On April 1,

1991, the Court granted the United States’ motion

for leave to file a bill of complaint. On May 31, 1991,

the State of Alaska filed its answer. On September

6, 1991, the United States and the State of Alaska

filed a joint stipulation of facts. The jurisdiction of

this Court rests on Article II, Section 2, Clause 2 of

the Constitution of the United States, and 28 U.S.C.

1251(b) (2).

STATUTE AND REGULATIONS INVOLVED

Section 10 of the Rivers and Harbors Appropria-

tion Act of 1899 provides in pertinent part as follows:

(1)

2

The creation of any obstruction not affirma-

tively authorized by Congress, to the navigable

capacity of any of the waters of the United

States is prohibited; and it shall not be lawful to

build or commence the building of any * * *

structures in any * * * water of the United

States * * * except on plans recommended by the

Chief of Engineers and authorized by the Secre-

tary of the Army; and it shall not be lawful to

excavate or fill, or in any manner to alter or

modify the course, location, condition, or capac-

ity of, any port, roadstead, haven, harbor, canal,

lake, harbor or refuge * * * unless the work has

been recommended by the Chief of Engineers

and authorized by the Secretary of the Army

prior to beginning the same.

33 U.S.C. 403.

The Department of the Army’s regulations gov-

erning the issuance of Section 10 permits provide in

pertinent part as follows:

(a) Public Interest Review. (1) The decision

whether to issue a permit will be based on an

evaluation of the probable impacts, including

cumulative impacts, of the proposed activity and

its intended use on the public interest. * * * All

» factors which may be relevant to the proposal

~ must be considered including the cumulative ef-

fects thereof: among those are conservation, eco-

nomics, aesthetics, general environmental con-

cerns, wetlands, historic properties, fish and

wildlife values, flood hazards, floodplain values,

land use, navigation, shore erosion and accretion,

recreation, water supply and conservation, water

quality, energy needs, safety, food and fiber pro-

duction, mineral needs, considerations of prop-

erty ownership and, in general, the needs and

welfare of the people. * * *

ere

3

(f) Effects on limits of the territorial sea.

Structures or work affecting coastal waters mod-

ify the coast line or base line from which the

territorial sea is measured for purposes of the

Submerged Lands Act and international law.

* * * Applications for structures or work affect-

ing coastal waters will therefore be reviewed

specifically to determine whether the coast line

or base line might be altered. If it is determined

that such a change might occur, coordination

with the Attorney General and the Solicitor of

the Department of the Interior is required be-

fore final action is taken. The district engineer

will * * * request [the Solicitor’s] comments

concerning the effects of the proposed work on

the outer continental rights of the United States.

* * * The decision on the application will be

made by the Secretary of the Army after coor-

dination with the Attorney General.

33 C.F.R. 320.4.

STATEMENT

The United States seeks to quiet title to certain

submerged lands beneath Norton Sound, near Nome,

Alaska. The State of Alaska has asserted a claim to

those lands under the Submerged Lands Act, 43

U.S.C. 1301 et seg., which grants to the States owner-

ship of submerged lands from the coast line to a

point, in most cases, three geographical miles sea-

ward thereof. Alaska bases its claim on the fact that

the disputed lands are within three geographical miles

of the ordinary low-water mark of certain port fa-

cilities that the City of Nome kas constructed. The

United States submits that Alaska has waived all

such claims through a disclaimer that it executed in

connection with the Secretary of the Army’s issuance

. 4

of a federal permit, under Section 10 of the Rivers

and Harbors Appropriation Act of 1899, 33 U.S.C.

403, for construction of the Nome port facilities.

Alaska contends that the Secretary of the Army

lacked authority to insist that Alaska execute the dis-

claimer and that the disclaimer accordingly is in-

valid as a matter of law.

A. Federal/State Ownership of Submerged Lands

1. The discovery of offshore petroleum and min-

eral deposits at the turn of this century led to liti-

gation between the United States and the coastal

States over ownership of offshore submerged lands.

The State of California asserted that it owned all

submerged lands, and the related mineral resources,

, Within three miles of its coast. This Court rejected

that contention in the landmark case of United States

v. California, 332 U.S. 19 (1947) (California 1).

The Court ruled that “the Federal Government rather

than the state has paramount rights in and power

over that belt, an incident to which is full dominion

over the resources of the soil under that water area,

including oil.” Jd. at 38-39. See 332 U.S. at 805

(Order and Decree).

2. Following this Court’s decision in California I,

Congress comprehensively addressed the question of

\ resource development of offshore submerged lands.

\ In 1953, Congress enacted the Submerged Lands Act,

\43 U.S.C. 1301 et seq., which, as a general matter,

grants the States “title to and ownership of the lands

beneath navigable waters within the boundaries of

the respective States.” 43 U.S.C. 1311. The Act gen-

erally defines the “seaward boundary” of each State

“as a line three geographical miles distant from its

coast line.” 43 U.S.C. 1312. It defines the “coast

Ye

5

line” as “the line of ordinary low water along that

portion of the coast which is in direct contact with

the open sea and the line marking the seaward limit

of inland waters.” 43 U.S.C. 1301(c).

Also in 1953, Congress enacted the Outer Conti-

nental Shelf Lands Act, 43 U.S.C. 1331 et seq., which

confirms the United States’ authority to exercise ju-

risdiction and control over all submerged lands lying

seaward of the lands granted to the States under the

Submerged Lands Act. 43 U.S.C. 1331(a), 13382.

Congress described those lands as the ‘outer Conti-

nental Shelf,” 43 U.S.C. 1331(a), and declared that

it is “the policy of the United States that”—

the subsoil and seabed of the outer Continen-

tal Shelf appertain to the United States and are

subject to its jurisdiction, control, and power of

disposition as provided in this subchapter.

| 4 «U.S.C. 1332(1). Congress has further declared

thatthe outer Continental Shelf

is a vital national resource reserve held by the

Federal Government for the public, which should

be made available for expeditious and orderly

development, subject to environmental safe-

guards, in a manner which is consistent with the

maintenance of competition and other national

needs.

43 U.S.C. 1332(3). Congress also has prescribed vari-

ous policies and requirements for coordinating activi-

ties on the outer Continental Shelf and sharing re-

source revenues with the States. See, e.g., 43 U.S.C.

1332, 1333(a), 1337(g).

3. The United States and the State of California

subsequently invoked the principles set forth in the

Submerged Lands Act and the Outer Continental Shelf

6

Lands Act in addressing California’s offshore owner-

ship interests. The ensuing litigation involved various

disputes over the application of the Submerged Lands

Act, including the question whether man-made struc-

tures, such as jetties and harborworks, alter the

“coast line” for purposes of the Submerged Lands

Act. See 43 U.S.C. 1301(c). This Court subsequently

concluded, upon recommendation of the Special

Master, that man-made additions are to be treated

as part of the coast line. United States v. California,

381 U.S. 139, 176-177 (1965) (California II). In

doing so, however, the Court cited the Special Master’s

conclusion that “the United States, through its con-

trol over navigable waters, had power to protect its

interests from encroachment by unwarranted artificial

structures, and that the effect of any future changes

could thus be the subject of agreement between the

parties.” /d. at 176. Accord United States v. Louis-

iana, 394 U.S. 11, 40 n.48 (1969); compare United

States vy. California, 447 U.S. 1 (1980) (California

I/I) (structures, such as open piers, that lack a low

water mark, do not extend the “coast line’).

B. The Secretary of the Army’s Authority to Regulate the

Placement of Structures in Navigable Waters

1, The Submerged Lands Act generally “relin-

quished” the United States’ ownership interests in

submerged lands that are within three miles seaward

of the coast line, 43 U.S.C. 1311, but it expressly

retained “all [of the United States’] navigational

servitude and rights in and powers of regulation and

control of said lands and navigable waters for the

constitutional purposes of commerce, navigation, na-

tional defense, and international affairs.” 43 U.S.C.

1314. As one aspect of its powers of “regulation and

7

control,” the United States strictly supervises the

placement of artificial structures in navigable waters.

Section 10 of the Rivers and Harbors Appropria-

tion Act of 1899, 33 U.S.C. 403, restricts such struc-

tures in three ways. First, Section 10 imposes a

complete prohibition on the placement of “any ob-

struction” in the waters of the United States, except

as authorized by Congress:

The creation of any obstruction not affirma-

tively authorized by Congress, to the navigable

capacity of any of the waters of the United

States is prohibited; * * *.

Second, Section 10 prohibits the erection of “any struc-

tures” in the waters of the United States except as

the Secretary of the Army allows:

fAjnd it shall not be lawfu) to Huild or com-

mence the building of any * *s * structures in

any * * * water of the United States * * * ex-

cept on plans recommended by the Chief of

Engineers and authorized by the Secretary of

the Army; * * *.

Third, Section 10 prohibits the commencement of

“work” altering conditions of any harbor, canal, lake,

or like waters unless the Secretary of the Army

consents :

[A]jnd it shall not be lawful to excavate or fill,

or in any manner to alter or modify the course,

location, condition, or capacity of, any port,

roadstead, haven, harbor, canal, lake, harbor or

refuge * * * unless the work has been recom-

mended by the Chief of Engineers and author-

ized by the Secretary of the Army prior to be-

ginning the same.

Thus, Section 10 amounts to a general prohibition on

the placement of any obstruction in coastal waters,

8

but empowers the Secretary of the Army to make

exceptions for the building of structures and under-

taking of work affecting those waters. See United

States v. Republic Steel Corp, 362 U.S. 482, 486-487

(1960).

2. Section 10 does not specify what factors the

Secretary of the Army should take into account in

determining whether to authorize the placement of

a structure or undertaking of work in the waters of

the United States. In these circumstances, the Sec-

retary has determined that the Department of the

Army should consider all factors relevant to the

public interest in determining whether such construc-

tion or work should go forward. He has therefore

adopted, by regulation, a permitting process based on

a “public interest review.” See 33 C.F.R. 320.4. The

Army’s regulations state at the outset:

The decision whether to issue a permit will be

based on an evalution of the probable impacts,

including cumulative impacts, of the proposed ac-

tivity and its intended use on the public interest.

33 C.F.R. 320.4(a)(1). The regulations further

provide:

All factors which may be relevant to the pro-

posal must be considered including the cumula-

tive effects thereof: among those are conserva-

tion, economics, aesthetics, general environmen-

tal concerns, wetlands, historic properties, fish

and wildlife values, flood hazards, floodplain

values, land use, navigation, shore erosion and

accretion, recreation, water supply and conserva-

tion, water quality, energy needs, safety, food

and fiber production, mineral needs, considera-

tions of property ownership and, in general, the

needs and welfare of the people.

33 C.F.R. 320.4(a) (1).

9

The Army’s regulations address in greater detail

a number of those factors, 33 C.F.R. 320.4(b)-(r),

including, of particular relevance here, the “Effects

on limits of the territorial sea,” 33 C.F.R. 320.4(f).

The latter provision begins by observing that under

California IT:

Structures or work affecting coastal waters

may modify the coast line or base line from

which the territorial sea is measured for pur-

poses of the Submerged Lands Act and inter-

national law.

Thus, the regulation recognizes the central role that

the coast line plays in determining the location of the

Nation’s international and federal-state boundaries.'

The regulation then provides:

Applications for structures or work affecting

coastal waters will therefore be reviewed spe-

cifically to determine whether the coast line or

base line might be altered. If it is determined

that such a change might occur, coordination

with the Attorney General and the Solicitor of

' At the time the Secretary adopted the regulation, the “ter-

ritorial sea” described the area three miles seaward of the

coast line. 33 C.F.R. 329.12. See Argentine Republic v.

Amerada Hess Shipping Corp., 488 U.S. 428, 441 n.8 (1989).

Since that time, the President has proclaimed that the United

States claims a territorial sea extending 12 nautical miles

seaward of the coast line for purposes of international

law. See ibid.; Presidential Proclamation No. 5928, 54 Fed.

Reg. 777 (1989). That Proclamation, however, does not affect

the location of the federal-state boundary, which remains de-

fined by the Submerged Lands Act as a line three miles sea-

ward of the coast line, 43 U.S.C. 1312. See 54 Fed. Reg. 777

(stating that nothing in the Proclamation “extends or other-

wise alters existing Federal or State law or any jurisdiction,

rights, legal interests, or obligations derived therefrom’’).

10

the Department of the Interior is required be-

fore final action is taken.

33 C.F.R. 320.4(f). Accordingly, the regulation re-

quires the Army Corps of Engineers to request com-

ments from the Solicitor “concerning the effects of

the proposed work on the outer continental rights of

the United States,” although the final decision on

the application is made “by the Secretary of the Army

after coordination with the Attorney General.” 33

C.F.R. 320.4(f). See also 33 C.F.R. Pt. 322 (pre-

scribing additional requirements for Section 10 per-

mits); 33 C.F.R. Pt. 325 (setting forth procedures

for processing permits).

C. The Present Dispute

The facts surounding the present dispute are set

forth in the joint stipulation (J.S.) filed by the

United States and the State of Alaska in this case.

The contents of the joint stipulation can be sum-

marized as follows:

1. In 1982, the City of Nome, Alaska, filed an ap-

plication with the Department of the Army, Alaska

District Corps of Engineers (the Corps), for a per-

mit to construct port facilities, including a causeway

extending into Norton Sound. J.S. 2, la-10a. The

Corps issued a public notice and invited comments, see

33 C.F.R. 325.3, in accordance with the Army’s pub-

lic interest review procedures. J.S. 2, lla-l6a. The

Alaska Office of the Department of the Interior’s

Minerals Management Service filed an objection to

the issuance of a permit on the ground that the port

facilities would constitute an artificial accretion to

the legal coast line. J.S. 2, 17a-19a.

The Corps requested comments from the Solicitor,

in acordance with 33 C.F.R. 320.4(f), quoted above.

11

J.S. 2, 20a-2la. The Solicitor responded that con-

struction of the Nome facility would “move Alaska’s

coastline or baseline seaward of its present loca-

tion” and that “[f]ederal mineral leasing off-shore

Alaska would be affected because the state-federal

boundary, as well as internationa! boundaries, are

measured from the coastline or baseline.” J.S. 2-3,

22a. The Solicitor therefcre recommended that “ap-

proval of the permit application be conditioned upon

Alaska executing an agreement or a quit claim deed

preserving the coastline and the state-federal boun-

dary.” J.S. 3, 22a.

The Corps transmitted the Solicitor’s letter to the

Alaska Department of Natural Resources and stated

that a Department of the Army permit would not be

issued to the City of Nome unless Alaska executed a

waiver or quit claim deed preserving the coast line

and the state-federal boundary. J.S. 3, 24a. The

Alaska Department of Natural Resources submitted

a conditional disclaimer stating in pertinent part:

Subject to paragraph 4 below, the State of

Alaska agrees that the coast line and the bound-

aries of the State of Alaska are not to be deemed

to be in any way affected by the construction,

maintenance, or operations of the Nome port fa-

cility. This document should be construed as a

binding disclaimer by the State of Alaska to the

effect that the state does not, and will not, treat

the Nome port development as extending its

coast line for purposes of the Submerged Lands

Act, again subject to paragraph 4 below.

J.S. 3, 30a. Paragraph 4 provided that the dis-

claimer “becomes ineffective and without force and

effect” if a court determines that “the Corps of

Engineers does not have the legal authority to re-

a

12

quire such a disclaimer before issuing a permit for a

project which might affect the coast line.” J.S. 4,

30a-3la. The Department of Justice informed the

Corps that Alaska’s disclaimer satisfied any objec-

tions that the Departments of Justice and the In-

terior might have to the issuance of the permit. J.S.

4, 32a.

The Corps issued a statement of findings support-

ing the issuance of the permit pursuant to the De-

partment of the Army’s public interest review cri-

teria, and it issued a validated permit on July 25,

1984. J.S. 4-5. 33a-37a, 39a-49a. The City of Nome

subsequently constructed the port facility, which in-

cludes a causeway extending approximately 2700 feet

from the coast line into Norton Sound. J.S. 5, 62a.

2. In 1988, the Minerals Management Service pub-

lished a request for comments and nominations for a

proposed lease sale for hard-rock minerals, including

gold, in the Norton Sound area. 53 Fed. Reg. 8134.

The State of Alaska submitted comments stating,

among other things, that the proposed sale involved

submerged lands subject to the Nome project dis-

claimer and that the State intended to file a legal

action, in accordance with paragraph 4 of the dis-

claimer, challenging the Corps’ authority to require a

waiver of rights to submerged lands. J.S. 5, 52a-54a.

Alaska subsequently provided notice, pursuant to 28

U.S.C. 2409a(m), of its intention to file a suit to

quiet title to the submerged lands in Norton Sound

that are more than three miles from the natural

shoreline but within three miles of the low water line

of the constructed, solid-fill Nome causeway. J.S. 6,

55a-59a. Although the Nome causeway is only &5

feet wide and 2700 feet long (occupying about 5

acres), it has placed in dispute approximately 730

13

acres of submerged lands. J.S. 5, 6, 60a-61la. See

J.S. 62a (map showing disputed acreage).

The United States thereafter requested and was

granted leave by this Court to commence this original

action. The Minerals Management Service published

a final leasing notice soliciting bids, 56 Fed. Reg.

28,656 (1991), and the United States and Alaska

entered into an agreement directing the revenues

from leasing of the disputed acreage into an escrow

account for payment to the United States or Alaska

depending on the outcome of this action.’

SUMMARY OF ARGUMENT

Section 10 of the Rivers and Harbors Appropria-

tion Act of 1899, 33 U.S.C. 403, confers broad au-

thority on the Secretary of the Army to regulate the

placement of structures and the commencement of

related work in coastal waters. The Secretary has

properly concluded that the decision whether to allow

such structures or work should be based on a “public

interest review,” 33 C.F.R. 320.4(a), which takes

into account a range of factors, including the effect

of the structure on the “limits of the territorial sea,”

33 C.F.R. 320.4(f). In this case, he determined that

the Nome port facilities would have such an effect,

and he lawfully declined to issue a Section’ 10 permit

until the State of Alaska executed a disclaimer pre-

serving the existing federal-state boundary.

yA. The Secretary may properly conduct a “public

interest review” to determine whether to issue a Sec-

The bidding process closed and no bids were received.

The United States and Alaska agree, however, that a live con-

troversy remains, in light of their continuing disagreement

as to the location of the federal-state boundary and the pros-

pect of future lease sales in the area. J.S. 6-7.

14

tion 10 permit. Section 10 does not specify what fac-

tors the Secretary should consider in issuing such a

~ permit. It is therefore reasonable for the Secretary

to consider all factors relevant to the pubiic interest

in order to ensure a sound and fully informed exer-

cise of his discretion. The Secretary has considered

such factors for more than half a century. His adop-

tion of a formal process for public interest review

ensures that Section 10 permits are issued consis-

tently with the policies that Congress has set forth in

other laws.

B. The Secretary may properly consider, as part

of his public interest review, the effects of a coastal

structure on the “limits of the territorial sea.” A

structure that alters the coast line may substantially

alter the Nation’s international and federal-state

boundaries, affecting the United States’ vital national

interests in the outer Continental Shelf. There is no

reason to believe that Congress, sub silentio, required

the Secretary to ignore those important federal inter-

ests when deciding whether to issue a Section 10

permit. Indeed, the Secretary’s consideration of those

interests in the permitting process is consistent with

this Court’s decisions, which contemplate that such

matters will be considered before a federal permit is

issued.

C. The Secretary lawfully declined to issue a Sec-

tion 10 permit in this case until the State of Alaska

issued a disclaimer preserving the existing federal-

state boundary. The Secretary’s public interest re-

view revealed that the Nome port facilities would

alter the coast line and impair the United States’

interests in the outer Continental Shelf. The Secre-

tary was entitled, on that basis, to deny a Section 10

permit. He therefore could lawfully insist that the

15

State of Alaska execute a disclaimer, preserving

existing rights, as a less drastic alternative to an out-

right denial of the permit.

ARGUMENT

THE SECRETARY OF THE ARMY MAY DECLINE

TO ISSUE A PERMIT FOR CONSTRUCTION OF AN

ARTIFICIAL ADDITION TO THE COAST LINE UN-

LESS THE COASTAL STATE AGREES THAT THE

CONSTRUCTION WILL BE DEEMED NOT TO

ALTER THE LOCATION OF THE FEDERAL-STATE

BOUNDARY

The Secretary of the Army has long considered the

“public interest” in determining whether to issue a

permit under Section 10 of the Rivers and Harbors

Appropriation Act of 1899. As one aspect of the in-

quiry, the Secretary may consider whether the place-

ment of a structure in coastal waters wil] affect the

location of the federal-state boundary. The Secretary

properly concluded, after consultation with the Solici-

tor or the Department of the Interior, that the Nome

port facilities would have such an effect, and he law-

fully declined to issue the Section 10 permit unless

the State of Alaska executed a disclaimer preserving

the existing federal-state boundary.

A. The Secretary may consider the public interest in

determining whether to issue a permit under Section

10 of the Rivers and Harbors Appropriation Act of

1899

1. When a court reviews an agency’s construction

of a statute that the agency administers, the court

must first inquire “whether Congress has directly

spoken to the precise question at issue.” Chevron

U.S.A. Ince. vy. Natural Resources Defense Council,

Inc., 467 U.S. 837, 842 (1984). If the statute “is

16

silent or ambiguous with respect to the specific issue,

the question for the court is whether the agency’s an-

swer is based on a permissible construction of the

statute.” Id. at 843.

In this case, Section 10 plainly prohibits ‘“[t]he

creation of any obstruction not affirmatively author-

ized by Congress” to the navigable capacity of the

United States’ coastal waters. 33 U.S.C. 403. Just

as plainly, Section 10 empowers the Secretary of the

Army to authorize the placement of “structures” in-

cluding port facilities, and the undertaking of exca-

vation, fill and other work, in such waters. 33 U.S.C.

403. Section 10 is silent, however, as to what factors

the Secretary should consider in determining whether

to authorize such structures or work. Thus, the ini-

tial question for this Court is whether the Secretary’s

use of a “public interest review,” 33 C.F.R. 320.4(f),

“is based on a permissible construction of the stat-

ute.” Chevron U.S.A. Inc., 467 U.S. at 843. Clearly

it is.

Congress has elected to impose a complete prohibi-

tion on the creation of “any obstruction” in navigable

waters. 33 U.S.C. 403. It has then given the Secre-

tary of the Army, who is charged with executing the

law, the power to allow exceptions on a case-by-case

basis, where the structure or work is recommended

by the Corps of Engineers. 33 U.S.C. 403. But Sec-

tion 10 neither specifies the factors the Secretary

must consider in deciding whether to authorize con-

struction in coastal or other waters nor limits the

range of factors he may deem relevant. Section 10,

on its face, therefore commits the identification of

relevant factors to the discretion of the Secretary of

the Army. Compare Jay v. Boyd, 351 U.S. 345, 353-

354 (1956).

v*

17

In particular, nothing in Section 10 confines the

Secretary to considering only those factors that bear

on the navigable capacity of the waters involved.

Nor should any such limitation be implied. Section

10 does not confer a right to obtain a permit for con-

struction or fill in covered waters, such that the Sec-

retary may deny a permit only if he finds an adverse

impact on navigation or other specified factors to be

present. Rather, as noted above, Section 10 states a

flat prohibition ageimsSt obstructions not “affirma-

tively authorized” by Congress itself, and provides

for exceptions to that prohibition only where affirma-

tively authorized by the Secretary.

Because Congress itself obviously could consider all

matters bearing on the public interest in deciding

whether to authorize a project in the manner re-

ferred to in the first clause of Section 10, the logical

inference is that the Secretary, too, may consider

various factors he deems relevant to the public inter-

est in exercising his delegated power under the second

and third clauses to create exceptions to the ;rohibi-

tion in the first clause. This inference is reinforced

by the specification that the Secretary’s determination

under the latter two clauses is to be based upon the

“recommendation” of the Chief of Engineers, which

strongly suggests that authorization need not be

granted unless the Secretary affirmatively finds that

the proposed project is, on balance, meritorious and

commends itself to approval. Cf. Webster v. Doe, 486

U.S. 592, 600 (1988). Thus, as the Fifth Circuit

observed, when it appears that a proposed project in

covered waters would be contrary to the public inter-

est, “nothing in the statutory structure compels the

Secretary to close his eyes to all that others see or

think they see.” Zabel v. Tabb, 430 F.2d 199, 201

a

18

(5th Cir. 1970), cert. denied, 401 U.S. 910 (1971).

See id. at 207-208. Compare Udall v. FPC, 387 U.S.

428, 450 (1967) (applying a ‘public interest” stand-

ard to hydropower licensing decisions).

A comparison with Section 13 of the 1899 Act, 33

U.S.C. 407, further reinforces the conclusion that the

Secretary is not narrowly confined under Section 10 of

the same Act to considering only factors bearing on

navigation. Section 13 provides that the Secretary

‘may permit” the discharge of “refuse” whenever “in

the judgment of the Chief of Engineers anchorage

and navigation will not be injured thereby.” 33

U.S.C. 407. As this Court explained in United States

v. Pennsylvania Industrial Chemical Corp., 411 U.S.

655 (1973), “even in a situation where the Chief of

Engineers concedes that a certain deposit will not in-

jure anchorage and navigation, the Secretary need

not necessarily permit the deposit, for the proviso

makes the Secretary’s authority discretionary—‘.e.,

it provides that the Secretary ‘may permit’ the de-

posit.” Jd. at 662. The Court further pointed out

that Section 13 “contains no criteria to be followed

by the Secretary in issuing such permits.” /d. at

668. The Court’s reasoning in Pennsylvania Indus-

trial Chemical Corp. applies equally to the contem-

poraneously enacted Section 10, which commits the

authorization of a structure or other work in covered

waters to the Secretary’s discretion, and does not spe-

cify criteria (such as those pertaining only to naviga-

tion or anchorage) that must be followed by the Sec-

retary in exercising that discretion.’

3 The Secretary no longer issues Section 13 permits, in light

of the superseding permit program established under the

Clean Water Act, 33 U.S.C. 1251 et seq. See 33 U.S.C.

1342 (a) (5); 33 C.F.R. 320.2(d).

19

If there could be any remaining doubt about the

permissibility of the Secretary’s interpretation and

implementation of Section 10, it is eliminated by the

rule of construction adopted by this Court in United

States v. Republic Steel Corp., 362 U.S. at 491.

There, the Court concluded that “[t]he philosophy of

the statement of Mr. Justice Holmes in New Jersey v.

New York, 283 U.S. 336, 342, that ‘A river is more

than an amenity, it is a treasure,’ forbids a narrow,

cramped reading either of $13 or of § 10” of the

1899 Act. The Secretary’s public interest review,

which he has applied to all Section 10 permit $y plica-

tions for more than two decades, furthers that “inder-

standing of Section 10.

2. The breadth of the Secretary’s authority that is

indicated by the statutory text Congress enacted in

1899 is confirmed by subsequent developments. This

Court suggested, more than 50 years ago, that the

Secretary has diseretin® to consider public interest

criteria when issuing a Section 10 permit. The issue

arose in United States ex rel. Greathouse v. Dern, 289

U.S. 352 (1933). The relators in that case sought

permission from the Secretary to build a wharf pro-

jecting from the Virginia shore into the Potomac

River. The Secretary refused to authorize the con-

struction solely on the ground that it would be inim-

ical to the establishment of the proposed George

Washington Parkway. /d. at 353-355.

The relators petitioned for a writ of mandamus to

compel the Secretary to authorize the wharf, arguing

that the Secretary had a mandatory duty to issue a

Section 10 permit unless the proposed structure in-

terfered with navigation. The lower courts denied

the petition, concluding that the Secretary had discre-

tion to deny a Section 10 permit for reasons other

alain

20

than navigational concerns. The court of appeals

stated:

[T]he act confers discretion in the Secretary to

grant or refuse permits where the structure will

not interfere with navigation, and the Secretary

in the exercise of that discretion may take into

consideration the character of the structure

sought to be built * * *, and in the determina-

tion of this matter the Secretary must take into

consideration the “location” and the “condition”

of the structure and its effect upon other struc-

tures or upon the “channel,” or the normal flow

of the stream.

United States ex vel. Greathouse v. Hurley, 63 F.2d

137, 141 (D.C. Cir. 1933).

This Court affirmed. It took note of the Secretary’s

arguments that

petitioners’ riparian ownership and the right to

build the wharf which they claim to be derived

from it are doubtful; and in any event that the

duty of the Secretary under the statute is not

plain and certain, since the words forbidding all

structures in any navigable water “except on

plans recommended by the Chief of Engineers

and authorized by the Secretary of War,” are

only permissive, not mandatory, and there is no

plain implication of a duty on the part of the

Secretary to authorize a structure * * * to which

there is substantial objection that it infringes

the rights or obstructs the public policy of the

United States as owner and sovereign of the

river bed.

289 U.S. at 358-359. The Court, however, found no

need to “say what effect should be given to these ob-

jections alone, whether considered each separately or

21

together.” Jd. at 359. It observed that the allowance

of mandamus “is controlled by equitable principles,”

and that “the relief sought by mandamus should be

denied here, even if petitioners’ title to the upland ad-

jacent to the river and their right to build the wharf

were less doubtful than they are.” Jd. at 359-360.

Although this Court’s decision in Greathouse did

not conclusively resolve the issue presented here, it

correctly observed that the petitioners’ right to a per-

mit was, at best, “doubtful.” Indeed, as the D.C. Cir-

cuit recognized, 63 F.3d at 141, and the Fifth Circuit

has since stated:

[T]he Corps of Engineers does not have te wear

navigational blinders when it considers a permit

request. That there must be a reason [for deny-

ing a permit] does not mean that the reason has

to be navigability.

Zabel, 430 F.2d at 208. See also Deltona Corp. v.

United States, 657 F.2d 1184, 1187-1188 (Ct. Cl.

1981), cert. denied, 455 U.S. 1017 (1982); Bankers

Life & Casualty Co. vy. Callaway, 530 F.2d 625, 633-

634 (5th Cir. 1976); United States vy. Joseph G.

Moretti, Inc., 478 F.2d 418, 423 (5th Cir. 1973);

Citizens Committee for Hudson Valley v. Volpe, 425

F.2d 97, 104-105 (2d Cir.), cert. denied, 400 U.S.

949 (1970).

3. As the dispute in Greathouse indicates, the

Secretary of the Army has long considered non-

navigational interests in determining whether to is-

sue a Section 10 permit. Those interests have become

far more numerous and important in the latter half

of this century. The Secretary must now act in the

face of an extensive body of federal law establishing,

among other things, national policies concerning en-

22

vironmental matters and natural resource develop-

ment.

The Secretary has responded by adopting the ‘“‘pub-

lic interest review” process to keep pace with the

evolution of the law. As the Department of the

Army’s regulations explain:

Until 1968, the primary thrust of the Corps’

regulatory program was the protection of navi-

gation. As a result of several new laws and ju-

dicial decisions, the program has evolved to one

involving the consideration of the full public in-

terest by balancing the favorable impacts against

the detrimental impacts. * * * The program is

one which reflects the national concerns for both

the protection and utilization of the important

resources.

33 C.F.R. 320.1. See 42 Fed. Reg. 37,122 (1977);

39 Fed. Reg. 12,115 (1974); 33 Fed. Reg. 18,670

(1968). See also H.R. Rep. No. 917, 91st Cong. 2d

Sess. 5 (1970) (praising the Army’s use of public in-

terest review factors).

The Secretary of the Army’s adoption of a process

for “public interest review” reflects a.commitment to

faithful execution of the law. An administrative

agency, like a court, has a duty to reconcile “laws

enacted over time” and to “get[] them to ‘make

4 See, e.g., Fish and Wildlife Coordination Act, 16 U.S.C.

661 et seqg.; Marine Mammal Protection Act of 1972, 16 U.S.C.

1361 et seq.; Marine Protection, Research, and Sanctuaries

Act of 1972, 16 U.S.C. 1431 et seq.; Coastal Zone Management

Act of 1972, 16 U.S.C. 1451 et seq.; Endangered Species Act

of 1973, 16 U.S.C. 1531 et seq.; Clean Water Act, 33 U.S.C.

1251 et seq.; National Environmental Policy Act, 42 U.S.C.

4321 et seq.; Submerged Lands Act, 43 U.S.C. 1301 et seq.;

Outer Continental Shelf Lands Act, 43 U.S.C. 1331 et seq.

See also 33 C.F.R. 320.3 (describing other related laws).

23

sense’ in combination,” United States v. Fausto, 484

U.S. 439, 453 (1987), and to implement its statu-

tory authority in a manner that takes account of

changed circumstances and its accumulated experi-

ence and expertise. See, e.g., American Hosp. Ass’n

v. NLRB, 111 S. Ct. 1539, 1546-1547 (1991); NLRB

v. Curtin Matheson Scientific, Inc., 110 S. Ct. 1542,

1549 (1990).

That is what the Secretary of the Army has at-

tempted to do here. See Zabel, 430 F.2d at 209. The

Secretary has appropriately chosen to codify by regu-

lation a process that conforms the agency’s exercise

of discretion to new legal requirements. That process

also takes into account evolving evidence and aware-

ness of matters affecting—and affected by—activities

in navigable waters. It thus ensures that the De-

partment’s issuance of a Section 10 permit is con-

sistent with the policies that Congress has set forth

in other laws and with the inherently evolutionary

nature of a regulatory program. Cf. Shepard v.

NLRB, 459 U.S. 344, 351 (1983).

Moreover, the Secretary of the Army has found

that the “public interest review” process is, in prac-

tice, an effective method for fulfilling its Section 10

responsibilities. It allows federal and state agencies,

as well as the general public, to raise important legal

and policy issues bearing on the issuance of a Section

10 permit. In this case, for example, the public

interest review revealed important considerations

bearing on the protection of fish and wildlife re-

sources, shoreline erosion, historic preservation, and

other matters, and it allowed the Secretary of the

Army to tailor his authorization of the proposed

project to meet those concerns. See J.S. 33a-37a. It

has served that salutary purpose in a host of other

24

projects in the course of the Secretary’s review of

thousands of permits annually. In short, the Secre-

tary’s public interest review is a useful, sensible and

lawful approach to issuance of Section 10 permits and

improves the overall regulatory effort.

B. The Secretary may refuse to issue a Section 10 permit

for a coastal structure based on the effects of the

structure on the location of the federal-state boundary

1. The Secretary of the Army’s public interest

review regulations expressly provide for consideration

of a wide variety of factors.’ This case arises from

the consideration of one particular factor—the effects

of the proposed construction on the “limits of the

territorial sea.” 33 C.F.R. 320.4(f). Since 1969,

the Secretary’s regulations have provided that Sec-

tion 10 permit applications for structures or work

affecting coastal waters will be reviewed specifically

to determine whether the coast line or base line might

be altered. 33 C.F.R. 320.4; see 33 C.F.R. 209.120

(d)(4) (1969). That consideration is a proper sub-

ject of the Secretary’s public interest review.

As the Secretary’s regulation recognizes, the loca-

tion of the coast line has great significance. The Con-

vention on the Territorial Sea and the Contiguous

5 See 33 C.F.R. 320.4(b) (wetlands); 33 C.F.R. 320.4(c)

(fish and wildlife) ; 33 C.F.R. 320.4(d) (water quality) ; 33

C.F.R. 320.4(e) (historic, cultura!, scenic, and recreational

values) ; 33 C.F.R. 320.4(g) (property ownership) ; 33 C.F.R.

320.4(h) (coastal zones); 33 C.F.R. 320.4(i) (marine sanc-

tuaries); 33 C.F.R. 320.4(j) (other federal, state, or local

requirements) ; 33 C.F.R. 320.4(k) (safety of impoundment

structures); 33 C.F.R. 320.4(/) (floodplain management) ;

33 C.F.R. 320.4(m) (water supply and conservation); 33

C.F.R. 320.4(n) (energy conservation and development) ; 33

C.F.R. 320.4(0) (navigation) ; 33 C.F.R. 320.4(p) (environ-

mental benefits) ; 33 C.F.R. 320.4(q) (economics) ; 33 C.F.R.

320.4(r) (mitigation).

25

Zone, ratified by the United States on April 12, 1961,

15 U.S.T. 1608, establishes international boundaries

by reference to the coast line (or base line).*° In

addition—and especially pertinent here—the Outer

Continental Shelf Lands Act and the Submerged

Lands Act provide that the offshore boundary for

purposes of federal and state interests shall be de-

termined by reference to the coast line. See pp. 4-

5, supra. This Court’s 1965 decision in California

II established that man-made additions to the coast

line, which are treated as part of the coast line for

the purposes of the Convention (Art. 8, 15 U.S.T. at

1609), should be treated as such for purposes of those

Acts. Thus, it is entirely appropriate for the Secre-

tary to consider the effect a coastal structure would

have on the location of the coast line as part of the

Section 10 public interest review.

Completely apart from any issue that might arise

with respect to foreign relations, see California 1,

332 U.S. at 29, such review is necessary to protect

an important federal interest—‘the outer continental

rights of the United States.” 33 C.F.R. 320.4(f).

Congress has expressly declared that “the outer Con-

tinental Shelf is a vital national resource reserve held

by the Federal Government for the public.” 43 U.S.C.

1332(3) (emphasis added). If the Secretary is for-

bidden from taking into account the effect that coastal

structures may have on the coast line, portions of

that “vital national resource reserve” would be trans-

ferred—without public comment or any formal gov-

ernmental consideration—from national to state

hands. That transfer would prejudice the rights of

® See also United Nations Convention on the Law of the Sea,

U.N. Doc. A/CONF.62/122 (1982). The United States has

not ratified that Convention, but has recognized that its base-

line provisions reflect customary international law.

26

the national citizenry, in violation of the express

policy of the Outer Continental Shelf Lands Act, in

favor of citizens of a single coastal State. Section 10

of the 1899 Act should not be construed to require a

result so at odds with its overriding purpose of pro-

tecting important national interests. Accordingly, the

Secretary of the Army, in consultation with the Solici-

tor of Interior and the Attorney General, may refuse

to issue a permit that would have such an effect. 33

C.F.R. 320.4(f).

2. The Secretary’s consideration of the effect of

a coastal structure on the coast line also conforms to

and implements this Court’s decision in California 11.

As we have explained, the Court agreed with the

Special Master in California II that coastal struc-

tures may be treated as part of the “coast line” for

purposes of the Submerged Lands Act. See 381 U.S.

at 176-177. See pp. 5-6, supra. A central element

of Court’s ratio decidendi was that

the United States, through its control over nav-

igable waters, had power to protect its interests

from encroachment by unwarranted artificial

structures, and that the effect of any future

changes could thus be the subject of agreement

between the parties.

381 U.S. at 176. The Special Master had specifically

observed that

it may be assumed that in the past the question

of the ownership of the lands, minerals and other

things underlying these artificial accretions has

not been taken into consideration by the United

States in passing judgment upon whether the ac-

eretions will be permitted; but it seems clear

that in the future that aspect of the matter can

be, and probably will be, taken into account.

27

California II, Report of the Special Master, at 46.

The Court agreed, stating:

Arguments based on the inequity to the United

States of allowing California to effect changes

in the boundary between federal and state sub-

merged lands by making future artificial

changes in the coastline are met, as the Special

Master pointed out, by the ability of the United

States to protect itself through its power over

navigable waters.

381 U.S. at 177. Thus, the Court effectively endorsed

the Special Master’s view that the United States could

protect the paramount national interests at stake by

revising its Section 10 permitting process, which is

the means by which the United States “pass[es] judg-

ment upon whether the accretions will be permitted.”

Report of the Special Master, at 46. See also United

States v. Louisiana, 394 U.S. at 40 n.48.

The Department of the Army promptly amended

its permitting process to implement the solution of-

fered by the California II decision. The Department

formally revised its Section 10 regulations in 1968

to require consideration of “the impact on the base

line from which to measure the width of the three-

mile belt of submerged land given to the States by

the Submerged Lands Act.” 33 Fed. Reg. 18,670,

18,671 (1968). Since that time, the Department has

further refined those regulations. See 39 Fed. Reg.

12,115 (1974). And since as early as 1970, it has

entered into numerous agreements, like the one in-

volved here, to resolve or pretermit questions regard-

ing the effect of a coastal structure on the location

of the coast line and the federal-state boundary. J.S.

7.’ There is no basis in Section 10 for the Court, at

*See Joint Lodging of the United States and the State of

Alaska (providing copies of various disclaimers).

28

this late date, to reject this established method for

ensuring protection of the United States’ vital na-

tional interests in the outer Continental Shelf, as part

of the Secretary’s broader public interest review.

C. The Secretary lawfully declined to issue a Section 10

permit in this case unless the State of Alaska executed

a disclaimer preserving the federal-state boundary

1. The Department of the Army properly exercised

its regulatory authority in this case. When the City

of Nome applied for a Section 10 permit, the Alaska

District of the Department of the Army’s Corps of

Engineers sought public comment in accordance with

33 C.F.R. 325.3. The Alaska Office of the Depart-

ment of the Interior’s Minerals Management Service

objected to the issuance of the permit on the ground

that it would affect the coast line and, consequently,

the United States’ offshore interests. The Corps

therefore consulted with the Solicitor of Interior in

accordance with 33 C.F.R. 320.4(f). J.S. 2, 20a-21a.

Such consultation is, of course, entirely permissible

and, in fact, desirable.

2. The Solicitor objected to Nome’s application for

a Section 10 permit based on a valid federal concern:

The proposed construction would move Alaska’s

coastline or baseline seaward of its present loca-

tion. Federal mineral leasing offshore Alaska

would be affected because the state-federal

boundary, as well as international boundaries,

are measured from the coastline or baseline.

J.S. 22a. As subsequent events have shown, the So-

licitor’s concerns were well founded. The Minerals

Management Service has determined that the affected

offshore acreage may contain valuable mineral de-

posits. J.S. 5, 6; 53 Fed. Reg. 8134 (1988); 56 Fed.

Reg. 28,656 (1991). The Solicitor correctly antici-

29

pated that Alaska might raise a claim to those lands

as a result of construction of the Nome port facility.

See J.S. 5-6, 52a-54a, 55a-61a.

3. The Solicitor recommended that “approval of

the permit application be conditioned upon Alaska

executing an agreement or a quit claim deed preserv-

ing the coastline and the state-federal boundary,”

noting that “[s]uch agreements have been encour-

aged by the Supreme Court, and have been entered

into by other states as well as Alaska.” J.S, 22a-23a.

The Solicitor was entitled, like any participant in

the Corps’ process, to make such a suggestion, and

the Corps was entitled to weigh his recommendation

in its permitting decision.

4. The Corps informed the City of Nome and the

State of Alaska of the Solicitor’s objection, and it

reasonably insisted, in light of the Solicitor’s recom-

mendation, that a permit would not be issued

until an agreement has been reached between the

Alaska Department of Natural Resources and

the City of Nome, and a waiver or quit claim

deed has been issued preserving the coastline and

the State-Federal boundary.

J.S. 24a. The Corps acted lawfully in insisting on

such a disclaimer. As we have explained, Section 10

of the Rivers and Harbors Appropriation Act of 1899

does not require the Secretary of the Army to issue

a permit for coastal construction that is inimical to

the public interest—including the United States’ in-

terest in the outer Continental Shelf. See pp. 15-28,

supra. If the Secretary of the Army can legitimately

prohibit the construction of the proposed port facili-

ties, he can certainly provide the City of Nome and

the State of Alaska with a less drastic “alternative

to that prohibition” that satisfies the government’s

30

regulatory objective. Nollan v. California Coastal

Comm'n, 483 U.S. 825, 836-837 (1987).

5. In this case, the State of Alaska elected to ex-

ecute a binding disclaimer stating that ‘“‘the state does

not, and will not, treat the Nome port development as

extending its coast line for purposes of the Sub-

merged Lands Act.” J.S. 30a. Alaska reserved, as

the sole condition to the disclaimer, its right to chal-

lenge the Secretary’s “legal authority to require such

a disclaimer before issuing a permit for a project

which might affect the coast line.” J.S. 30a-3la. As

we have shown, the Secretary of the Army has such

legal authority. The disclaimer is therefore valid,

and the United States is entitled to judgment as a

matter of law.

CONCLUSION

The motion for summary judgment in favor of the

United States should be granted.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

BARRY H. HARTMAN

Acting Assistant Attorney General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor General

MICHAEL W. REED

Attorney

OCTOBER 1991

wy ov. S. GOVERNMENT PRINTING orrice;, 1991 312324 45123