Opposition Brief — United States v. Alaska

Cour, V.6,

fom FILLED

Ne. 118 Oete NOV 20 1991

a i

Iu the Supreme Court of the United States

OcToner Term, 1991

UNITED STATES OF AMERICA, PLAINTIFF

v,

STATE OF ALASKA

ON BILL OF COMPLAINT

BRIEF FOR THE UNITED STATES IN OPPOSITION

TO THE MOTION OF THE STATE OF ALASKA

FOR SUMMARY JUDGMENT

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C, 20530

(202) S14-2217

TABLE OF CONTENTS

Argument: Page

A. Alaska incorrectly asserts that Section 10 of

the Rivers and Harbors Appropriation Act of

1899 does not allow the Secretary of the Army

to deny a permit based on the effect of a pro-

posed structure on the location of the federal.

state boundary 2

B, Alaska incorrectly interpreta this Court's deei-

sions reapecting the Secretary's authority 5

C, Alaska errs in contending that the Army Corps

of Engineers improperly applied the Secretary's

regulations in this case 18

Conclusion 19

TABLE OF AUTHORITIES

Canes:

Argentine Republic ¥, Amerada Heaa Shipping

Corp,, 488 U.S, 428 (1989) 8

Jay ¥. Boyd, 351 US. 345 (1956) %

Marah ¥. Oveqon Natural Resources Couneil, 490

U.S, 360 (1989) 19

Minsinsippi Vv. United States, 111 8. Ct, 8R0

(1990) 9

Nollan ¥, California Coastal Comm'n, 483 U.S. 825

(1087) nes 11,12, 13

United States V, Appalachian Power Co, 311 US.

S77 (1940) 4

United States V, California, 381 U.S. 139 (1965) 6, 7,8,

9,10

United States Vv. Cumberland Farma, 826 F.2d

1151 (iat Cir, 1987), cert. denied, 484 U.S. 1061

(1988) 5

United States V, Gawhert, 111.8, Ct, 1267 (1991) 15

United States V, Louisiana, 389 U.S. 155 (1967) 8

United States V, Louisiana, 394 U.S. 1 (1969) 1]

United States Vv. Pennayleania Industrial Chemi.

cal Corp,, 411 U.S, 655 (1978) 8

United States Vv, Republic Steel Corp,, 962 U.S, 482

(1960) 6

(1)

Cases—Continued : Page

United States ex rel, Greathouse V, pom US,

362 (19338) = 6

Constitution, treaty, statutes and regulations:

U.S. Const. Amend, Art. I, ¢8, Cl. 3 (Commerce

Clause) scommeasemapnmsntigentnil 10

Convention on the Territorial fea and the Con-

tiguous Zone, ratified by the United States Apr.

12, 1961, 16 U.S.T. 1607... 6

Administrative Procedure Act, 5 U.S.C, 661 ef

GO nen , 5

5 U.S.C, 552 (a) (1) (8840) (00) 17

5 U.S.C, 663 (8 4) , , : 17

5 U.S.C, 706 (410) - 18

Outer Continental Shelf Lands Act, 43 U.S.C, 1931

ee —_ wins 5

43 U.S.C, 1992 | , 19

48 U.S.C, 1382(1) : 5

43 U.S.C, 1982(5) _ . 6&8

Rivers and Harbors Appropriation Act of 1899,

33 U.S.C, 401 ef neq.:

§ 10, 33 U.S.C, 408 iil | passim

§ 12, 38 U.S.C, 406 il

Submerged Lands Act, 43 U.S.C, 1301 ef #eq,

§ 2(b), 43 U.S.C, 1801 (b) 7,8

33 C.F.R.:

Section 320.2 — io 5

Section 320.4 5,14

Section 320.4(f) 5, 14, 16, 18, 19

Section 320.4 (g) ; 4

Section 320.4(g) (6) simian 4

Section 322.3 4

Section 322.5 2 | 12

Miscellaneous :

38 Fed, Reg. 12,217 (1975) - es 17

89 Fed, Reg, 12,115 (1974) 17

42 Fed, Reg, 37,122 (1977) | 17

51 Fed, Reg. 41,220 (1986) | 17

27 Op. Att'y Gen, 284 (1909) A

Iu the Supreme Court of the Wuited States

OCTOBER TERM, 1991

No. 118, Original

UNITED STATES OF AMERICA, PLAINTIFF

v.

STATE OF ALASKA

ON BILL OF COMPLAINT

BRIEF FOR THE UNITED STATES IN OPPOSITION

TO THE MOTION OF THE STATE OF ALASKA

FOR SUMMARY JUDGMENT

ARGUMENT

The United States and the State of Alaska agree

that the controlling legal issue in this case is whether

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 loca-

tion of the federal-state boundary. They disagree,

however, as to the proper legal analysis. In our

brief supporting the United States’ motion for sum-

mary judgment, we urged that (1) the Secretary

may consider the public interest in determining

whether to issue a permit under Section 10 of the

tivers and Harbors Appropriation Act of 1899, 33

U.S.C. 403; (2) he may evaluate, as part of his

(1)

2

public interest review, a coastal structure’s effect

on the location of the federal-state boundary; and

(3) he properly declined to issue a permit in this

case unless the State agreed to execute a disclaimer

preserving that boundary. The State of Alaska ar-

gues, by contrast, that the relevant statutes, judicial

decisions, and regulations provide no authority for

the Secretary’s actions. As we explain below, Alaska

is mistaken.

A. Alaska Incorrectly Asserts That Section 10 Of The

Rivers And Harbors Appropriation Act Of 1899 Does

Not Allow The Secretary Of The Army To Deny A

Permit Based On The Effect Of A Proposed Structure

On The Location Of The Federal-State Boundary

1. Alaska asserts that the Submerged Lands Act,

43 U.S.C. 1301 et seq., entitles coastal States to an

addition to their submerged lands grants upon con-

struction of a qualifying structure. Alaska Br. 13-

16. Alaska “freely admit[s],” however, that “Con-

gress has constitutional authority necessary to pre-

vent States from changing their coastlines” and that

“Congress clearly could give the Army Corps author-

ity to condition permits on waivers of Submerge:|

Lands Act rights.” /d. at 16. As Alaska recognizes,

the crux of the issue here is whether Congress has

done so. We submit that Congress has given the Sec-

retary of the Army that authority through Section

10 of the Rivers and Harbors Appropriation Act of

1899, 33 U.S.C. 403.

As we explained in our brief supporting the United

States’ motion for summary judgement (at 15-28),

Congress has drafted Section 10 to impose a complete

prohibition on the creation of ‘any obstruction” in

navigable waters. 33 U.S.C. 403. It has then given

the Secretary of the Army, who is charged with

executing that law, the power to allow exceptions

on a case-by-case basis, where a structure or work

is recommended by the Army Corps of Engineers.

33 U.S.C. 403. But Section 10 neither specifies the

factors that the Secretary must consider in deciding

whether to authorize construction in coastal or other

waters nor limits the range of factors that he may

deem relevant. Instead, it gives the Secretary dis-

cretion to identify the relevant considerations. Com-

pare Jay v. Boyd, 351 U.S. 345, 353-354 (1956).

Alaska argues that Section 10 restricts the Secre-

tary’s permitting decision to considerations of ‘“navi-

gation and pollution.” Alaska Br. 17. Section 10,

however, contains no such restriction. Section 10

refers to “navigation” only insofar as it prohibits

the “creation of any obstruction * * * to the naviga-

ble capacity” of United States waters. That provi-

sion confirms that a structure like the Nome cause-

way—which extends 2700 feet seaward into Norton

Sound and would therefore constitute an obstruction

to “navigable capacity”—is prohibited unless the

Secretary authorizes it. But the quoted provision does

not limit the factors that the Secretary may con-

sider in determining whether to authorize such a

structure. See U.S. Br. 18, citing United States v.

Pennsylvania Industrial Chemical Corp., 411 U.S.

655, 662 (1973). And Section 10 does not refer to

“pollution” at all. See 33 U.S.C. 403."

' Alaska notes that Attorney General Wickersham issued

an opinion in 1909 stating that Section 10 did not authorize

the Secretary to consider the injury that a structure might

cause to a “bathing beach.” See 27 Op. Att’y Gen. 284, 288

(1909). The Attorney General reasoned that Congress has

no power over navigable waters within a State “except to

4d

2. Alaska’s acknowledgement that the Secretary

may take “pollution” into account, Br. 17, and the

amici’s acknowledgement that the Secretary may also

consider “human health and welfare,” the “marine

environment,” and “economic potential,” Coastal

States Amici Br. 17, are entirely consistent with—

and actually support—our position. Section 10 makes

no mention of those factors. Alaska and its amici

derive them, instead, from other federal statutes. See

Alaska Br. 18-19; Coastal States Br. 14-17. Thus,

Alaska and the coastal States concede that the Sec-

retary may look to the policies that Congress has

set out in other laws in channeling the permitting dis-

cretion that Section 1 confers on him in unfettered

terms. But their survey of those other federal laws

is incomplete.

As we explained in our brief supporting the

United States’ motion for summary judgment (at

21-24), the Secretary adopted a formal and com-

prehensive process for “public interest review” spe-

cifically to keep pace with the evolution of federal

law and to conform the agency’s exercise of discre-

tion to new legal requirements and policy develop-

ments. The Secretary’s process considers the full

spectrum of relevant statutes and identifies a broad

range of congressional policies in addition to those

preserve or improve the navigability of the stream” and that

the Secretary’s power “can be no broader than the source

from which it is derived.” /d. at 286, 287. As Alaska recog-

nizes (Br. 16), the premise of the Attorney General’s opinion

has proven incorrect. See, e.g., United States v. Appalachian

Power Co., 311 U.S. 377, 424-427 (1940). Attorney General

Wickersham’s opinion, which is also inconsistent with this

Court’s decision in United States v. Pennsylvania Industrial

Chemical Corp., supra, no longer represents the views of the

United States,

5

set out by Alaska and the coastal States. See 33

C.F.R. 320.2, 320.4. Of particular relevance here,

the Secretary takes into account Congress’s declara-

tion in the Outer Continental Shelf Lands Act, 43

U.S.C. 1331 et seq., that the United States has “juris-

diction, control and power of disposition” over the

outer Continental Shelf, which is a “vital national

resource reserve” of enormous commercial value. 43

U.S.C. 1332(1) and (3). The Secretary’s “public

interest review” process explicitly considers that

policy by evaluating, as part of the Section 10 per-

mitting process, “the effects of the proposed work

on the outer continental rights of the United States.”

33 C.F.R. 320.4(f). See U.S. Br. 24-26.

The Secretary’s approach is manifestly reasonable

and conforms to the requirements of rational decision-

making set forth in the Administrative Procedure

Act (APA), 5 U.S.C. 551 et seg. Alaska and the

coastal States agree that the Secretary may consider

statutory environmental policies in the Section 10

permitting process. Alaska Br. 19-21; Coastal States

Amici Br. 15. See United States v. Cumberland

Farms, 826 F.2d 1151, 1158 (1st Cir. 1987), cert.

denied, 484 U.S. 1061 (1988); see also cases cited

at U.S. Br. 21. Yet they offer no reason why the

Secretary should at the same time ignore statutory

policies respecting federal control of the outer Con-

tinental Shelf. The Secretary’s approach gives effect

to the full range of relevant federal law, rather than

singling out a few selected statutes.

B. Alaska Incorrectly Interprets This Court’s Decisions

Respecting The Secretary’s Authority

1. Alaska contends that this Court’s decisions

“»rovide no authority” for the Secretary’s action in

this case. Br. 22. As an initial matter, Alaska over-

6

looks this Court’s decisions in United States v. Penn-

sylvania Industrial Chemical Corp., supra, and

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

352 (1933). As we have explained, Pennsylvania

Industrial Chemical Corp. acknowledges the Secre-

tary’s broad authority under the Rivers and Harbors

Appropriation Act of 1899 to consider factors other

than navigation in determining whether to issue a

permit. U.S. Br. 18. See also United States v. Re-

public Steel Corp., 362 U.S. 482, 486-487, 491

(1960) (discussed at U.S. Br. 7-8, 19). And Great-

house strongly indicates that the Secretary has dis-

cretion to deny a Section 10 permit where its issuance

could impair federal property interests. U.S. Br.

19-21.

2. Alaska also is mistaken in asserting that the

Secretary’s “practice at issue here directly contradicts

and frustrates this Court’s purpose in incorporating

the provisions of the Convention on the Territorial

Sea and the Contiguous Zone [ratified by the United

States Apr. 12, 1961, 15 U.S.T. 1607] into the Sub-

merged Lands Act.” Br. 22. The State relies on the

following passage from United States v. California,

381 U.S. 139 (1965) (California 11):

It is our opinion that we best fulfill our respon-

sibility of giving content to the words which

Congress employed by adopting the best and most

workable definitions available. The Convention

on the Territorial Sea and the Contiguous Zone,

approved by the Senate and ratified by the Pres-

ident, provides such definitions. We adopt them

for purposes of the Submerged Lands Act. This

establishes a single coastline for both the admin-

istration of the Submerged Lands Act and the

conduct of our future international relations

7

(barring an unexpected change in the rules es-

tablished by the Convention ).

381 U.S. at 165 (footnote omitted). Alaska argues

that “[t]he goal of a single coastline is frustrated”

by the Secretary’s insistence upon a disclaimer pre-

serving the federal-state boundary. Br. 23. See also

Coastal States Br. 7, 21.

Alaska’s argument is fundamentally flawed. First,

California IT die st articulate the supposed “goal of

a single coastline.” Alaska Br. 23. As the quoted

passage indicates, the Court adopted the Convention’s

definitions because they provided the “best and most

workable definitions available.” 381 U.S. at 165.

The Court recognized that using the same definitions

for purposes of the Convention and the Submerged

Lands Act “establishes a single coastline.” /bid. But

that was not its overriding “goal.” The Court’s ob-

jective was to give the Submerged Lands Act grant

“definiteness and stability’—not to create perfect

symmetry between the Convention and the Act. See

id. at 165-167. Indeed, the Court recognized that the

international coast line and the Submerged Lands

Act coast line might diverge in the future, and it

expressly rejected California’s assertion that if the

definitions of the Convention were amended, “the

extent of the Submerged Lands Act grant would

automatically shift.” Jd. at 166.

2 The Court’s subsequent interpretation of the extraordinary

grant of submerged lands to Texas—which is based on the

boundaries “as they existed at the time such State became a

member of the Union,” 43 U.S.C. 1301(b)—indicates that the

Court was not pursuing the “goal of a single coastline.” Al-

though the Court had treated harborworks as part of the

coast line when measuring California’s standard 3-mile grant

under the Submerged Lands Act, it refused to include them

Second, there is nothing unusual about divergences

between international and federal-state boundaries.

This Court recognized in California 1/ that a “change

in the rules established by the Convention” might

render the international and federal-state boundaries

non-coincident, 381 U.S, at 165, 166. Moreover, Con-

gress has manifested its willingness to accept vari-

ations between the international and federal-state

boundaries by providing in the Submerged Lands

Act itself that any boundary between the United

States and a State that has been fixed by a decree

of this Court “shall not be ambulatory,” even though

the international boundary may move as a result of

erosion or accretion, 43 U.S.C, 1301(b). Quite apart

_from that provision, the President recently pro-

claimed a 12-mile territorial sea for purposes of in-

ternational law. See U.S. Br. 9 n.1; Argentine Re-

public v. Amerada Hess Shipping Corp., 488 U.S,

428, 441 n.8 (1989). Thus, even where the interna-

tional seaward boundary and the federal-state bound-

ary formerly coincided, the international boundary

now extends 9 miles beyond the 3-mile federal-state

limit.

Finally, the coastal States themselves have created,

allowed, or endorsed variations between the interna-

tional boundary and the federal-state boundaries by

agreeing to compromise boundary disputes with the

United States based on lines that plainly diverge

as part of Texas's coast line when measuring that State's

“historic” S-league grant under the Act. United States v.

Louisiana, 389 U.S. 155, 161 (1967). As a result, in the

instances of Texas and Florida (see id. at 160 n.2), the coast

line for purposes of international law differs from the coast

line for purposes of the Submerged Lands Act.

9

from those that would be established under interna-

tional law. See Mississippi vy. United States, 111

S. Ct. 380 (1990); see also California 1/7, 381 U.S, at

176-177 (endorsing the Special Master's observation

that the United States and a State could enter into

an agreement concerning the location of the coast

line and the federal-state boundary). Hence, even if

there once were some notion of pursuing the “goal

of a single coastline,” Alaska Br, 23, that goal is

now beyond reach.

At bottom, Alaska’s pursuit of a “single coastline”

misdirects the inquiry. The crucial question here is

whether the Secretary may deny a Section 10 permit

based on the effect a proposed structure would have

on the location of the federal-state boundary. A de-

cision to deny a permit on that basis plainly does

not create a “dual” coast line. The issue arises only

because the Secretary offers the State the option of

securing the permit for the State (or for another

applicant within its borders) by agreeing to disclaim

any right to additional submerged lands resulting

from the proposed structure. It is Alaska’s exercise

of that option that creates the situation that Alaska

now finds objectionable. Alaska can avoid the sit-

uation by simply declining to exercise its option.

3. Alaska attempts to discount (Br, 23-25) the

Court’s statements in California 1] that support the

Secretary's interpretation of his Section 10 powers.

As we explained in our brief supporting the United

States’ motion for summary judgment (at 26-28),

the Court endorsed the Special Master's conclusion

“that the United States, through its control over

navigable waters, had power to protect its interests

from encroachment by unwarranted artificial strue-

tures, and that the effect of any future changes could

ae 10

thus be the subject of agreement between the parties.”

381 U.S, at 176; see id. at 177. Alaska argues that

the Court’s reference to the United States’ “power”

alluded to Congress's constitutional power under the

Commerce Clause, rather than the Secretary's power

under Section 10, Alaska Br, 24, That contention,

however, cannot be squared with the context of the

Court's statements.

The Court’s observation that the United States had

power to resolve future disputes by “agreement” can

refer only to the Secretary's powers. Executive

Branch officials—not Congress—negotiate and ex-

ecute “agreements.” The Court's understanding is

particularly clear when its observation is read in the

context of the Special Master’s Report. The Special

Master stated :

I think it may be assumed that in the past the

question of the ownership of the lands, minerals,

and other things underlying these artificial accre-

tions has not been taken into consideration by the

United States in passing judgment upon whether

the accretions 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,

I do not share the view of counsel for the United

States (U.S. 102) that this would be an unde-

sirable situation. On the contrary, I think it

would give opportunity for appropriate negotia-

tions and agreement between the State and the

United States at the time the artificial change

is approved,

California 11, Report of the Special Master (No. 6

Orig., O.T, 1952), at 46. That discussion makes sense

only in relation to the actions of the Secretary in

deciding whether to issue a Section 10 permit. Thus,

there is no genuine room for doubt that the Court's

and the Special Master's observations concerning the

‘

C rT

United States’ powers referred to the Secretary's

already existing powers under Section 10, As we

have explained, the Secretary's regulations implement

the Court's expectations in California 11. See U.S,

Br, 27-28."

4, Alaska and the coastal States also contend that

the Secretary's refusal to issue a Section 10 permit

unless Alaska agreed that the construction would

be deemed not to alter the location of the federal-

state boundary is inconsistent with this Court's de-

cision in Nollan v. California Coastal Comm'n, 48:

U.S. 825 (1987). See Alaska Br, 21, 26-27; Coastal

States Amici Br. 19. That argument misconceives

the Court’s ruling in Nollan,

In Nollan, a state regulatory agency refused to

issue a land owner a permit to build a small bungalow

on his beachfront lot unless the owner deeded an

* This Court's decision in United States v. Louisiana, 394

U.S. 1 (1969), bolsters our interpretation of California //.

In Louisiana, the Court reaffirmed its California //] reasoning,

stating:

The United States contends that the spoil bank should

be ignored because its construction was unauthorized

** * Even assuming that the creation of the bank was

not authorized * * *, it would not follow that it does not

constitute part of the coast. If the United States is

concerned about such extensions of the shore, it has the

means to prevent or remove them, See United States v.

California, 381 U.S. 189, 177.

394 U.S, at 41 n.48, The Court's observation that the United

States could “prevent or remove” unauthorized structures

seems directed to the exercise of existing powers, since Sec-

tion 10 of the 1899 Act already authorized the Secretary to

prevent erection of structures and Section 12 of the 1899

Act, 38 U.S.C, 406, empowered the Attorney General to bring

an injunctive action to compel the removal of unauthorized

structures,

12

easement allowing the public to cross his property

to use the beach, The Court agreed with the agency

that

a permit condition that serves the same legiti-

mate police- r ay oy as a refusal to issue

the permit should not be found to be a taking if

the refusal to issue the permit would not consti-

tute a taking.

483 U.S, at 836. The Court explained;

If a prohibition designed to accomplish that pur-

pose would be a legitimate exercise of the police

power rather than a taking, it would be strange

to conclude that providing the owner an alterna-

tive to that prohibition which accomplishes the

same purpose is not,

Id, at 836-837. The Court concluded, however, that

the agency’s action was improper because the agency's

legitimate reasons for denying a building permit were

completely unrelated to the requirement that the land

owner provide a public easement. /d. at 837, See id,

at 838-842.

Here, by contrast, the opposite is true. The Army

Corps of Engineers (acting pursuant to the Secre-

tary’s delegation of authority, see 33 C.F.R. 322.5)

refused to issue a Section 10 permit after concluding,

in consultation with the Department of the Interior,

that construction of the proposed structure would

alter the federal-state boundary and transfer valuable

mineral-bearing lands from federal to state owner-

ship. See U.S. Br, 28-29. The Corps offered to issue

a permit if the State would agree to execute a cis-

claimer that would preserve the federal-state boun-

dary and prevent the transfer of that property. /d.

at 29-30. Thus, “the permit condition serves the same

governmental purpose as the development ban.”

13

Nollan, 483 U.S. at 837. It simply provides a less

drastic “alternative to that prohibition” that satisfies

the government's regulatory objective, /bid.,

Alaska’s rhetoric that the Secretary is engaged in

“extortion,” Alaska Br. 21, 27, has no substance.

The submerged lands that Alaska claims the See- -

retary is “extorting” are federal lands. As Alaska's

disclaimer expressly states, the agreement simply

“maintains the status quo of the baseline and the

state-federal boundary” and “does not affect property

or claims to which Alaska is now entitled.” J.S. 30a,

What Alaska really seeks is a windfall. Under

Alaska’s approach, the Secretary would be obligated

to approve the construction of a proposed causeway,

without regard to the fact that his approval would

result in the transfer of 730 acres of valuable fed-

eral land (without any formal governmental con-

sideration) from federal to state hands. More gen-

erally, there would be nothing to prevent a State

from constructing coastal structures specifically to

obtain control of valuable outer Continental Shelf

lands, It is unreasonable to believe that Congress—

which gave the Secretary broad powers to control

coastal structures in the national interest, 33 U.S.C.

403, and identified the lands involved here as part of

“a vital national resource reserve,” 43 U.S.C, 1332(3)

—intended that result.

(. Alaska Errs In Contending That The Army Corps of

Engineers Improperly Applied The Secretary's Regu-

lations In This Case

1, Alaska broadly argues that the Secretary's

regulations “provide no authority” for the Corps’

actions in this case. Alaska Br, 27-37. Plainly that

is not so, The Secretary's regulations expressly pro-

14

vide that structures like the Nome port facilities re-

quire a Section 10 permit, See 33 C.F.R. 322.4

regulations also set out in precise terms the consid-

erations that will guide the Corps’ decision whether

to issue a permit, 33 C.F.R. 320.4, The regulations

make clear that the Corps may include in its evalua-

tion the “effects of the proposed work on the outer

continental rights of the United States.” 33 C.F.R.

$20.4(f). Thus, the Secretary’s regulations leave

no doubt that the Corps may decline to issue a Sec-

tion 10 permit based on the effect the proposed project

would have on the location of the federal-state boun-

dary. Alaska does not seriously dispute this inter-

pretation of the regulation."

Alaska argues that the regulations are defective

because they “provide no authority allowing the Army

* Alaska contends that Section 320.4(f) “addresses activi-

ties on submerged lands, not the property interests in the

submerged lands.” Br. 28. See also id. at 29. Alaska does

not explain, however, the source of that supposed distinctic

See 33 C.F.R. 320.4(f) (requiring consideration of the “effects

of the proposed work on the outer continental rights of the

United States”). Alaska later cites a separate regulatory

provision, 38 C.F.R. 320.4(g¢), for the proposition that the

Corps’ review process is not concerned with “property owner-

ship disputes.” Alaska Br. 29, 31-32. Alaska, however, cites

that provision out of context. The regulation states only that

disputes as to whether “the applicant possesses or will pos-

wens the requisite property interest to undertake the activity

proposed in the application * * * will not be a factor in the

Corps public interest decision.” 33 C.F.R. 320.4(¢) (6). It

does not prevent the Corps from considering the impact a

proposed project would have on the conceded property rights

of others (including the State itself). In particular, it does

not negate the express terms of the immediately preced-

ing paragraph (f), which requires consideration of the “ef-

fecta of the proposed work on the outer continental rights of

the United States.” 33 C.F.R. 820.4(f).

15

Corps to require a State to disclaim its rights in sub-

merged lands when shifts in the coastline occur as a

result of a coastal construction project.” Alaska Br.

27-28. See also id. at 29, 31-32, 34-35, 37. Alaska

apparently believes that the regulations must ex-

pressly prescribe the particular curative option that

Alaska ultimately utilized in this case. Alaska fails

to explain, however, why that is so. As we have

explained here and in our brief in support of the

United States’ motion for summary judgment, if the

Corps can legitimately prohibit the construction of

the proposed port facility, it may certainly provide

the City of Nome and the State of Alaska with a less

drastic alternative to that prohibition that satisfies

the government’s regulatory objective. See pp. 9, 13,

supra; U.S. Br. 29-30. The Corps is not required

to communicate that alternative through any par-

ticular medium.

As this Court recently recognized, federal agen-

cies do not communicate every policy and practice

through formal regulations. See United States vy.

Gaubert, 111 S. Ct. 1267, 1274 (1991) (agencies may

“establish policy on a case-by-case basis, whether

through adjudicatory proceedings or through admin-

istration of agency programs”). Indeed, it would be

impossible for an agency to articulate every policy or

practice in its regulations. Here, as in Gaubert,

there is “no prohibition against the use of super-

visory mechanisms not specifically set forth in statute

or regulation.” /d. at 1277. The Corps acted reason-

ably in communicating the disclaimer option directly

to the permit applicant and to the State. See J.S.

24a-25a.°

* Hence, Alaska’s contention that “[i]nteragency coordina-

tion does not authorize the Army Corps to require this dis-

16

Alaska fails to explain why the Corps’ approach is

improper or what specific advantages would result

from identifying the option through a formal regu-

lation. Alaska received fully adequate notice of the

option. The Corps expressly informed Alaska that

the Solicitor of the Department of the Interior had

objected to the issuance of the permit; it specified

the particular curative measure that could be taken;

and it gave the State ample time to consult with the

agency and draft the disclaimer. See J.S. 3, 24a-

25a, 26a. The Corps’ action could not have come as

a surprise. The Corps has requested such disclaimers

on a case-by-case basis since 1970. See Joint Lodging

of the United States and Alaska (providing copies

of various disclaimers). Moreover, Alaska was fa-

Nniliar with the option as a result of similar Section

10 permit proceedings in the past, and it submitted an

agreement in this case that is similar in form to its

previous disclaimers. /bid. In short, Alaska cannot

reasonably attack the government’s legal authority

to offer it the disclaimer option on the ground that

the State is now dissatisfied—after exercising the

option—with the manner by which the government

communicated it.

2. Alaska also makes the surprising contention

that the “rules relied upon by the Army Corps in

reviewing permit[] [applications] were not adopted

in accordance with the Administrative Procedure

claimer” (Br. 28-29) is beside the point. There also is no

merit to Alaska’s related contention (Br. 29-30) that the

Corps has improperly delegated its authority through inter-

agency coordination. The Corps plainly made the permitting

decision in this case. See 33 C.F.R. 320.4(f); J.S. 24a-25a.

See U.S. Br. 29,

17

Act.” Alaska Br. 32. As an initial matter, the State

of Alaska is not aggrieved in any manner by the

“rules relied upon by the Army Corps in reviewing”

permit applications. The issue before this Court

arises from Alaska’s execution of a submerged lands

disclaimer and its reservation, within that disclaimer,

of the right “to file an appropriate action leading

to a determination whether the Corps of Engineers

has the legal authority to require such a disclaimer

before issuing a permit for a project which might

affect the coast line.” J.S. 30a. Alaska’s APA chal-

lenge to the Secretary’s procedures for reviewing

permit application has no bearing on that issue.

In any event, there is no merit to Alaska’s conten-

tions. Alaska argues that the Secretary failed to

give public notice of his regulations and failed to pub-

lish them in the Federal Register in accordance with

Section 4 of the APA, 5 U.S.C. 553. Alaska Br. 32-34,

35-36. Alaska is mistaken. The regulations were

adopted in 1974, in substantially their present form,

through notice and comment rulemaking. See 39 Fed.

Reg. 12,115 (1974) (final rule); 38 Fed. Reg. 12,217

(1973) (proposed rule). The Secretary’s subsequent

recodification and technical amendments were also

published in the Federal Register after notice and

comment. See 51 Fed. Reg. 41,220 (1986); 42 Fed.

Reg. 37,122 (1977).

Alaska further argues that the Secretary violated

Section 3(a)(1) of the APA, 5 U.S.C. 552(a)(1),

by “fail[ing] to promulgate the criteria it employed

in evaluating the permit application of the City of

Nome.” Alaska Br. 35. As we explained, however,

the Secretary’s regulations specifically identify the

criterion that the Corps relied upon in requesting the

disclaimer—‘‘the effects of the proposed work on the

18

outer continental rights of the United States.” 33

C.F.R. 320.4(f). And the Corps specifically informed

the City of Nome and the State of Alaska that

in accordance with the attached letter from the

Office of the Solicitor, dated May 16, 1983 a

[Department of the Army] permit will not be

issued until an agreement has been reached be-

tween the Alaska’ Department of Natural Re-

sources 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; see J.S. 22a (Solicitor’s letter raising ob-

jection based on the “outer Continental Shelf rights

of the United States’). Thus, the Corps’ objection

was based on a regulatory criterion, the City of

Nome and the State of Alaska were fully informed of

that objection, and they received advice regarding an

available curative measure. They were not “forced

to litigate with agencies on the basis of secret laws.”

Alaska Br. 34-35.

3. Finally, Alaska asserts that the Secretary’s

action here should be set aside, under Section 10 of

the APA, 5 U.S.C. 706, as “arbitrary and capricious.”

Alaska Br. 36-37. As we explained here and in our

opening brief, however, just the opposite is true. The

Secretary has adopted a “public interest review” proc-

ess to ensure that his execution of the broad discre-

tion conferred by Section 10 of the Rivers and Har-

bors Appropriation Act is tied to the congressional

policies set out in other federal laws. Consistent with

that approach, the Secretary’s review process gives

express consideration to Congress’s declaration that

the United States has “jurisdiction, control and power

of disposition” over the outer Continental Shelf, 43

U.S.C. 1332, by evaluating “the effects of the pro-

19

posed work on the outer continental rights of the

United States.” 33 C.F.R. 320.4(f). See U.S. Br.

24-26. The Secretary acted reasonably and in full

- accordance with that regulation here in refusing to

grant a permit unless Alaska entered into an agree-

ment protecting the United States’ outer Continental

Shelf rights. By contrast, Alaska’s approach, which

selectively ignores the important congressional policy

in the Outer Continental Shelf Lands Act, would

not allow for the consideration of all relevant factors,

as the APA contemplates. See, e.g., Marsh v. Oregon

Natural Resources Council, 490 U.S. 360, 378 (1989).

CONCLUSION

The motion of the State of Alaska for summary

judgment should be denied, and the motion of the

United States for summary judgment should be

granted.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

NOVEMBER 1991

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