Opposition Brief — Cuban American Bar Ass'n v. Christopher
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In the Supreme Court of the United States
OCTOBER TERM, 1996
UNITED STATES OF AMERICA, PLAINTIFF
.
STATE OF ALASKA
ON EXCEPTIONS TO THE REPORT
OF THE SPECIAL MASTER
BRIEF FOR THE UNITED STATES IN OPPOSITION
TO THE EXCEPTIONS OF THE STATE OF ALASKA
WALTER DELLINGER
Acting Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
MICHAEL W. REED
CHARLES W. FINDLAY, III
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 514-2217
QUESTIONS PRESENTED
The exceptions of the State of Alaska to the Report of
the Special Master pose the following three questions:
1. Whether the coastline of the United States and the
State of Alaska in the area of the Arctic Ocean should be
determined by Alaska’s proposed “ten-mile” rule.
2. Whether an offshore feature known as Dinkum
Sands, which is frequently submerged by mean high
water, is an island for purposes of locating the coastline.
3. Whether the United States has retained title to
coastal submerged lands within the National Petroleum
Reserve in Alaska.
(I)
TABLE OF CONTENTS
Introduction and summary of argument .......................
Argument:
I. Alaska’s entitlement to lands beneath coastal
II.
inland waters should be determined by the
principles set out in the Convention on the
Territorial Sea and the Contiguous Zone,
rather than by Alaska’s proposed ten- nule“
A. This Court has ruled that a State’s entitle-
ment to land beneath coastal inland waters
shall be determined on the basis of the
r ! e
B. Under the Convention, the United States’
past policies and practices remain relevant
te historic inland waters claims, but Alaska
has not made an historic inland waters claim
ee ee
C. Even if Alaska could base a claim to inland
waters on principles other than those set out
in the Convention, it has not done so here
Dinkum Sands is not an island
A. The Master correctly determined that Arti-
cle 10(1) of the Convention includes as islands
only features that are normally above mean
B. The Master correctly found that the evi-
dence showed Dinkum Sands to be frequent-
ly below mean high water
C. The Master properly determined that Dink-
um Sands should not be treated as alternat-
ing between an island and a non-island
8 — ——
(II
Argument—Continued: Page
Ill. The United States has retained title to sub-
0 —————7çꝙ— 50
B. Contrary to Alaska's assertions, Congress
intended to reserve the submerged lands
and defeat Alaska’s claim to title. ... 57
TABLE OF AUTHORITIES
Cases:
Alabama v. Texas, 347 U.S. 272 (1954)
Alaska v. United States, No. A87-0450-CV (HRH)
(D. Alaska Mar. 29, 1998) ..... . ...
Alaska Pacific Fisheries v. United States, 248 US.
1. ——ůů—ů 60,
Amoco Production Co. v. Village of Gambell,
480 U.S. 531 (1987) .. 59,
Block v. North Dakota, 461 U.S. 273 (1983) .
Borax Consolidated, Ltd. v. City of Los Angeles,
296 U.S. 10 (1985) ....—.—.—..—.—.—.—.——.—..
Brewer-Elliott Oil & Gas Co. v. United States,
260 U.S. 77 (1922) 4
California ex rel. State Lands Comm'n v. United
States, 457 U.S. 273 (1982) ...... 53,
Choctaw Nation v. Oklahoma, 397 U.S. 620
4700 . .
Collins v. Yosemite Park & Curry Co., 304 US. 518
(1988) . . . ..
Cases Continued:
8 2
22 8 8 8 8 88 8
Page
Franklin v. Massachusetts, 505 U.S. 788 (1992) .... 67
Hynes v. Grimes Packing Co., 337 U.S. 86
SE SE ee 59, 60, 65
James v. Dravo Contracting Co., 302 U.S. 134
—ͤ—T—T—dũꝗà3ỹ6ꝝ — 69
Kleppe v. New Mezico, 426 U.S. 529 (1976) 73
Kohl v. United States, 91 U.S. 367 (1876) 54
Louisiana v. Mississippi, 202 U.S. 1 (1906) ............ 14
Mann v. Tacoma Land Co., 153 U.S. 273 (1894) ..... 59
Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367
—ͤ ÄÄTA— W Boe LE Se 51
Montana v. United States, 450 U.S. 544 (1981) 64, 65
Oregon ex rel. State Land Board v. Corvallis Sand
& Gravel Co., 429 U.S. 363 (1977) . 56
Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212
ee TS ae oe ee 51
Railroad Comm'n v. Rowan & Nichols Oil Co.,
| EES SE een 63
Sale v. Haitian Centers Council, Inc., 509 U.S. 155
17 eee ee ee 35
Shively v. Bowlby, 152 U.S. 1 (1894) 53, 59, 64
Silas Mason Co. v. Tax Comm iu, 302 U.S. 186
— ̃ ͤ—UůL— —08 63, 70
The Anna, 165 Eng. Rep. 809 (1805) 4, 36, 37
United States v. Alaska:
W r 12, 17
423 F.2d 764 (9th Cir.), cert. denied, 400 U.S. 967
—%ͤ ˙ꝗ—AA 0 60
United States v. California: :
W 5, 9, 51, 52, 53, 56, 73
r passim
4 31
e We 1 ee 12
United States v. Cherokee Nation, 480 U.S. 700
——ͤͤ ——————— ¶ ¶ oe 63
VI
Cases—Continued: Page
United States v. 50 Acres of Land, 469 U.S. 24 5
5%
United States v. Gratiot, 39 U.S. (14 Pet.) 526 5
7— 2
United States v. Louisiana: 1
399 U.S. 699 (1950) . . —
BBS U.S. 1 (19GO) .
394 U.S. 11 (1969) 4, 12, 17, 18, 34, 35, 37, 47
420 U.S. 529 (1975) . . - 17-18, 37
470 U.S. 98 (1985) ( 2. 3, 12, 13, 14, 17, 20, 21, 23
United States v. Maine:
420 U.S. 515 (1975) . 52, 53, —
409 U.S. 504 (1985) . . .. .
475 U.S. 88 (16600) ———————.———— 11-12, 15, 17
United States v. Mendoza, 464 U.S. 154 (1984) ....... 21
United States v. Midwest Oil Co., 236 U.S. 459 5
650
United States v. Texas, 339 U.S. 707 (1950) 5³
Utah Div. of State Lands v. United States, .
482 U.S. 198 (1987) .......ccecereereeerneeesnnnsnerensnneens passim
Watt ». Western Nuclear, Inc., 462 U.S. 36 (1983) 53
Wisconsin v. Baker, 698 F.2d 1323 (7th Cir.),
cert. denied, 463 U.S. 1207 (1983) .. . . 59
80...
Cl. 17 (Enelave Clause . . .
Cl. 18 (Necessary and Proper Clause) CNT 5
Art. IV, § 3, Cl. 2 (Property Clause) , 54,
Convention on the Territorial Sea and the Contiguous 1
Zone, Apr. 29, 1958, 15 U.S. T. 1606 .....
7
Art. 3, 15 U.S. T. 1608. . be- 8
VII
Treaty and statutes—Continued: Page
22 RS ee ae eee 8, 10, 16
27571 8, 10
.. ĩ % 12-13
Art. 7(4), 15 U.S. T. 1600 .. . . . . . 12-13, 37
e passim
Art. 10, 15 U.S. T. 1609-1610. . . . . 31
Art. 1001), 15 U.S. T. 1609 . .. .. . . . .. passim
„ „ 4, 34, 38
Act of June 25, 1910, ch. 421, 36 Stat. 847 (Pickett
RD GIN eet 6, 57
. 58, 60, 68
JJ... ee as 62
JJ... r. 67
Act of May 1, 1936, ch. 254, § 2, 49 Stat. 1250 60
Act of Sept. 7, 1957, Pub. L. No. 85-308, 71 Stat.
— dcadeichacnctinhbinasnmeishineiatetiinliidaibibncsitienitiumeeres 71
Act of July 3, 1958, Pub. L. No. 85-505, 72 Stat. 322 .. 71
Alaska Right-of-Way Act of May 14, 1898, ch. 299,
— ———ĩ W Oe ee TOL
ee ES ae ee
re 6, 66, 68, 69, 70,
J... „
e .
Federal Land Poliey and Mangement Act of 1976,
Pub. L. No. 94-579, § 704(a), 90 Stat. 2792 ...............
Outer Continental Shelf Lands Act Amendments of
1985, Pub. L. No. 99-272, Tit. VIII, § 8005, 100 Stat.
58
58
72
68
68
Op .. 50
6
71
69
69
58
—. — K 48
Submerged Lands Act, ch. 65, 67 Stat. 29, 43 U.S.C.
1 ( —————— 7
Lee 5, 48
Lee eee 8, 10
Vill
Statutes—Continued: Page
52
§ Bla), 43 U.S.C. 1B11(a) . ...... . . .
§ 5(a), 43 U.S.C. rr 52, 56, 68
pprop ct of 1888, ch. ö
T — 2
Miscellaneous:
of the Conference for the Codification of Inter-
‘ sha * ne of the Second Committee:
Territorial Waters, ~ 1 Ai 2 Doc. 5
Ib. M. 1450b). 1930. V (1930) . . . ..... . .
ses ©. Bol Petroleum Withdrawals and Restora-
tions Affecting the Public Domain (U.S. Geological *
Survey Bull. 623) (1916) . . . . bed.
2 for the Codification of International Law,
2 Bases of Discussion: Territorial Waters, League
of Nations Doc. C.74.M.39.1929.V (1929) . .. 29
45 Cong. Rec. (1910): *
p. 621 ...... ...... .. ...e. —
2 of the Continental Shelf (U.K. v. Fra).
18 R. Int'l Arb. Awards 3 (1977) . .. .... . 34
Exec. Order No. 3797-A (1923) ... . ... .. 57, 65, 66, 67
Gerald Fitzmaurice, Some Results of the Geneva
Conference on the Law of the Sea, 8 Int'l & Comp.
106... 33
P. A. Francois:
n Territorial Sea, (1952)
2 Y.B. Int'l L. Comm’n 25, U.N. Doc. A/CN.4/58 .. 30
Second Report on the Regime of the Territorial Sea,
1953] 2 V. B. Int’l L. Comm'n 57, U.N. Doc.
ACN. 61. . ... eeeeeeeseeeeeeeeee 30
Third Report on the Regime of the Territorial Sea,
1954] 2 Y.B. Int'l L. Comm'n 1, U. N. Doc,
ACN. 77 . . . . . . . . . .... . . . . . 30
8 Gilbert Gidel, Le Droit International de la Mer
(19B4) . . ese 37
Miscellaneous —Continued:
League of Nations Conference for the Codification
of International Law [1930] (ed. Shabtai Rosenne
1975):
— PPP
Ernest de K. Leffingwell, The Canning River Region,
Northern Alaska (U.S. Geological Paper 109)
PTT
Oil land Withdrawals and the Protection of Locators
of Oil Lands: Hearings on H.R. 24070 Before the
House Comm. on the Public Lands, 61st Cong.,
t Y
Public Land Order 82, 8 Fed. Reg. 1599 (1943)
Public Land Order 128, 8 Fed. Reg. 8557 (1943)
Michael W. Reed, G. Thomas Koester & John Briscoe,
The Report of the Special Masters of the United
States Supreme Court in the Submerged Lands
e I I 20, 26, 37
Report of the International Law Commission to the
General Assembly, 11 U.N. GAOR Supp. (No. 9),
U.N. Doe. A/3159 (1956), reprinted in 1956] 2 V. B.
e el a Sa
S. Doe. No. 187, 78th Cong., 2d Sess. (1944)
SJ. Res. 54, 68th Cong., Ist Sess., 43 Stat. 5 (1924) ....
2A Norman Singer, Sutherland’s Statutory Con-
r
Summary Recurds of the 260th Meeting, [1954] 1 V. B.
RRR TSA ED I
Robert W. Swenson, Legal Aspects of Mineral
Resources Exploitation, in Paul W. Gates,
History of Public Land Law Development
—ͤͤ
Clive Symmons, The Maritime Zones of Islands
in International Law (1979) . . . . . .
85
85
Miscellaneous—Continued:
U.N. Conference on the Law of the Sea, Ist Comm.
(1958):
19th plen. mtg., 2 Official Records 61...
52d mtg., 3 Official Records 160 .. . ....
Summary records of meetings, 3 Official Records
242, U.N. Doc. A/CONF.13/C./L. 112 .
In the Supreme Court of the United States
OCTOBER TERM, 1996
No. 84, Original
UNITED STATES OF AMERICA, PLAINTIFF
v.
STATE OF ALASKA
ON EXCEPTIONS TO THE REPORT
OF THE SPECIAL MASTER
BRIEF FOR THE UNITED STATES IN OPPOSITION
TO THE EXCEPTIONS OF THE STATE OF ALASKA
INTRODUCTION AND SUMMARY OF ARGUMENT
This original action presents a dispute between the
United States and the State of Alaska over the ownership
of lands beneath the tidal waters along the Arctic coast of
Alaska. The Special Master has prepared a comprehensive
report setting out his analysis and recommended resolu-
tion of the matter. The United States has filed one
exception to his recommendations. The Brief for the
United States in Support of Exception (U.S. Except. Br.)
summarizes the Special Master’s Report and explains the
basis for that exception. The State of Alaska has filed
three exceptions to the recommendations of the Special
Master. This brief responds to those exceptions.
(1)
2
I. The Special Master has properly recommended that
the Court reject Alaska’s contention that the State’s
entitlement to submerged lands along the Arctic coast
should be determined on the basis of a “ten-mile” rule,
which Alaska contends represented the official policy of
the United States at the time of Alaska’s admission to the
Union. See Report 19-175. .
This Court concluded in United States v. California,
381 U.S. 139 (1965) (California II), that the Convention on
the Territorial Sea and the Contiguous Zone, done, Apr.
29, 1958, 15 U.S.T. 1606, provides the controlling legal
principles for determining the limits of a State's coastal
inland waters. 381 U.S. at 165. The Court specifically re-
jected the argument, virtually identical to Alaska’s con-
tention here, that a State’s coastal inland waters should be
determined on the basis of the State’s historical under-
standings at the time of statehood. See id. at 150-151,
157-160, 161-165. Since that time, the Court has consis-
tently relied on the Convention to determine the limits of
coastal inland waters, and it should not depart from that
practice in this case. E
Under the Convention, the United States’ historic de-
limitation policies and praciices remain relevant, but in
a more specific sense than Alaska urges. The Convention
allows a State to claim “historic” inland waters, Art. 7(6),
15 U.S.T. 1609, but the State must show that they com-
prise an area “over which a coastal nation has tradition-
ally asserted and maintained dominion with the acquies-
cence of foreign nations.” United States v. Louisiana
(Alabama and Mississippi Boundary Case), 470 U.S. 98,
101 (1985). Alaska has conceded that it cannot show that
the areas in question constitute historic inland waters.
See Report 44 n.13, 51. Hence, Alaska cannot claim any
entitlement to the associated submerged lands. Because
Alaska’s assertions respecting the United States’ historic
3
practices are not sufficient to establish a claim of historic:
inland waters under Article 7(6), they are also insufficient
to show that the United States’ adherence to the Conven-
tion’s principles has impermissibly contracted Alaska’s
recognized territory. See Alabama and Mississippi
Boundary Case, 470 U.S. at 111-112.
In this case, the Special Master assumed for purposes of
argument that Alaska could claim a contraction of its
recognized territory without showing its entitlement to
that property under Article 7(6)’s historic inland waters
test. See Report 52. He concluded, however, that Alaska
must show that the United States had a “well-established
and well-defined rule for inland water delimitation to imply
such aclaim.” Ibid. The Master exhaustively evaluated
the statements and positions of various United States
officials over time, id. at 52-175, and he concluded that
“(t]he evidence plainly shows that, as of Alaska’s state-
hood, the United States had not developed a general policy
of claiming as inland waters any waters behind islands
that satisfied a ten-mile rule,” id. at 127. See also id. at
141. Hence, even if this Court were to depart from its use
of the Convention to determine the limits of coastal inland
waters, Alaska has not made a satisfactory showing in this
case.
IL The Special Master has also properly recommended
that an offshore feature known as Dinkum Sands, which is
regularly submerged by high tide, is not an island for
purposes of locating the coastline. See Report 227-310.
The parties agree that the status of Dinkum Sands
should be based on Article 10(1) of the Convention, which
defines an island as “a naturally-formed area of land,
surrounded by water, which is above water at high-tide.”
15 U.S.T. 1609. After carefully examining the text and
drafting history of the Convention, the Master properly
concluded that Article 10(1) “requires an island to be
4
‘above water at high tide’ at least ‘generally,’ ‘normally,’ or
‘usually.’” Report 309. His interpretive approach is con-
sistent with that of the Court in United States v. Loui-
siana (Louisiana Boundary Case), 394 U.S. 11, 40-47
(1969), where the Court construed Article 11’s treatment
of low-tide elevations. Alaska is mistaken in its argument
that Dinkum Sands is analogous to “mudlumps” in the
Mississippi River Delta, which Alaska asserts are islands.
The Master found that there is no evidence that the mud-
lumps exhibit behavior analogous to Dinkum Sands, which
regularly oscillates above and below mean high water.
Report 291-293 & n.49. Alaska’s reliance on The Anna,
165 Eng. Rep. 809 (1805), and other old cases is misplaced;
they shed ne light on the meaning of the 1958 Convention.
The Master is also correct in his factual findings
respecting Dinkum Sands. Dinkum Sands is not mere-
ly “sometimes” or “occasionally” submerged. Alaska
Except. Br. 45, 51. Based on the evidence, the Master
concluded that Dinkum Sands is “frequently below mean
high water and therefore does not meet the standard for an
island.” Report 309. Alaska’s contrary characterization
relies on a 1949-1950 survey. Subsequent observations
beginning in 1955 have shown that the survey cannot be
relied upon to characterize Dinkum Sands as an island.
See id. at 240-244. Alaska makes no mention of the parties’
$2.8 million joint monitoring project, which was specifi-
cally designed to provide factual data to assess Dinkum
Sands’ elevation with respect to mean high water. The
Master correctly concluded, based on the joint monitor-
ing study and other voluminous evidence, that Dinkum
Sands “frequently slumps below the high water datum”
and is therefore not an island under Article 10(1) of the
Convention. Id. at 309.
The Special Master also properly recommended against
adopting the suggestion that Dinkum Sands be deemed an
5
island when it is above mean high water but not when it is
below. There is no clear precedent in international law for
“occasional” islands. Treatment of Dinkum Sands as a
temporary island, which would result in unpredictable
extensions and contractions of the territorial sea on a
weekly or monthly basis, would pose numerous practical
problems. Furthermore, that approach is not required
under domestic law. Congress has specifically provided
that this Court may fix federal-state boundaries through
its decrees. See 43 U.S.C. 1301(b). The treatment of
Dinkum Sands as a temporary island would require a
costly and timely monitoring program that would likely be
subject to continuing disputes over the scientific method-
ology and results. This case demonstrates the undesir-
ability of requiring permanent monitoring of a capricious
coastal feature in an inclement Arctic region.
III. The Special Master correctly recommended that
the United States has lawfully retained title to coastal
submerged lands within the National Petroleum Reserve
in Alaska through a 1923 land withdrawal that express-
ly included the submerged lands within its seaward
boundary. Report 343-446.
Alaska’s contention that it owns the submerged lands
within the National Petroleum Reserve is a complete re-
versal of its position at the outset of the litigation. See
Report 346. As the Master explained, the United States
owns those lands because it expressly retained them
through an Executive Order withdrawal, which Congress
specifically recognized and ratified in the Alaska State-
hood Act. As the Master further explained, there is a
strong presumption that the United States retained the
submerged lands beneath the territorial sea, where its
power is “paramount” (United States v. California, 332
U.S. 19, 36 (1947) (California 1). See Report 394. But
even if the withdrawal is construed under the “equal
6
footing” presumptions that this Court has applied to non-
coastal inland waters, see Utah Div. of State Lands v.
United States, 482 U.S. 193, 200-202 (1987), the United
States clearly retained title. See Report 445.
Alaska is wrong at the outset in contending that the
Pickett Act, ch. 421, 36 Stat. 847, did not authorize the
President to withdraw the submerged lands. The Master
rejected that argument, explaining that Alaska’s con-
struction is inconsistent with both the language and the
object of the Act. See Report 404-416. It is particularly
significant that the Pickett Act authorized the President
to set aside lands for the purpose of creating petroleum
reserves for the Navy’s use. Such oil reserves exist in
underground deposits that extend indiscriminately be
neath uplands and submerged lands and cannot be pre-
served through reservation of the uplands alone. The
Act’s objectives would have been thwarted if it had allowed
withdrawal of only the uplands. See id. at 410-416.
Alaska is also wrong in suggesting that there was no
“public exigency” justifying the retention of submerged
lands. The United States’ national security needs provide
an ample basis for the United States to reserve submerged
lands. See Report 417-430. Alaska is additionally mis-
taken in its assertion that Section 11(b) of the Alaska
Statehood Act, Pub. L. No. 85-508, 72 Stat. 347, is not
affirmative evidence that Congress intended to defeat
Alaska’s title. Section 11(b), which expressly states that
the United States owns and retains exclusive jurisdiction
over the National Petroleum Reserve, unambiguously ex-
presses Congress’s intention to withhold from Alaska all
lands to the limit of the Reserve’s seaward boundary. See
Report 430-440.
There is no merit to Alaska’s assertion that the Equal
Footing Doctrine prohibits the United States from retain-
ing title to submerged lands through a statehood act.
7
Alaska does not contest that Congress can retain sub-
merged lands for appropriate public purposes. If that is so,
then Congress can exercise that power through the legis-
lation of its choice. Indeed, a statehood act is a particu-
larly appropriate vehicle for Congress to manifest its in-
tention to retain submerged lands rather than let them
pass to the new State. There is also no merit to Alaska’s
contention that the United States is entitled to something
less than fee title to the submerged lands. The decision
whether to retain the full fee is a matter for Congress,
which indicated its intention to retain full ownership of all
of the lands within the National Petroleum Reserve. See
Report 440-445.
ARGUMENT
I. ALASKA'S ENTITLEMENT TO LANDS BENEATH
COASTAL INLAND WATERS SHOULD BE DETER-
MINED BY THE PRINCIPLES SET OUT IN THE
CONVENTION ON THE TERRITORIAL SEA AND
THE CONTIGUOUS ZONE, RATHER THAN BY
ALASKA'S PROPOSED “TEN-MILE” RULE
The Special Master carefully considered Alaska’s en-
titlement to submerged lands in the vicinity of a series of
barrier islands in the Arctic Ocean that lie at distances
ranging from less than one mile to more than seven miles
from the mainland and each other. See Report 3, Fig. 1.1
(map). He concluded that Alaska’s right to submerged
lands in such areas should be determined on the basis of
the Submerged Lands Act of 1953 (SLA), 43 U.S.C. 1301 et
seq., and the mandatory provisions of the Convention on
the Territorial Sea and the Contiguous Zone, done, Apr.
29, 1958, 15 U.S.T. 1606. Under those provisions, Alaska is
entitled to submerged lands extending three miles sea-
ward from the low-water line of the mainland and each of
8
the islands, 43 U.S.C. 1301(c); Art. 3, 15 U.S.T. 1608, and
from the limits of inland waters, which are determined
under the Convention’s provisions governing the closing
of bays, Art. 7, 15 U.S.T. 1609. See Report 19-175; U.S.
Except. Br. 5-9 (summarizing the Master's findings).
Alaska contends (Alaska Except. Br. 7-43) that the Spe-
cial Master erred in determining the extent of the State’s
inland waters in the vicinity of the barrier islands. Alaska
argued before the Master that all of the waters between
the islands and the mainland are inland waters and that
Alaska is therefore entitled to all of the underlying sub
merged lands. Alaska offered two separate theories in
support of that claim. First, Alaska asserted that its en-
titlement should be determined by the optional method of
“straight baselines” set forth in Article 4 of the Conven-
tion, 15 U.S.T. 1608. See Report 25-28 (Questions 2 and
12). In the alternative, Alaska asserted that its entitle-
ment should be determined by a rule, which it character-
ized as the United States’ historic policy, that areas
enclosed by barrier islands less than ten miles apart are
inland waters. See id. at 29-30 (Questions 3 and 13). The
Master has recommended that this Court reject both
theories, id. at 174-175, 503, and Alaska excepts only
from his recommendation against adopting the “ten-mile”
rule, Alaska Except. Br. 7.”
As we explain below, Alaska’s exception should be over-
ruled. This Court has held that the Convention provides
1 See also Report 24, Fig. 3.2 (map depicting the United States’
position in the Leased Area); id. at 28, Fig. 3.4 (map depicting Alaska’s
position in the Leased Area).
2 Alaska raised a third theory, one of “assimilation,” which ap-
plied to only some of the submerged lands in question. Report 30-32
(Question 4). The Special Master has recommended that the Court
reject that theory, see id. at 174-175, 503, and Alaska has not excepted
from that recommendation.
the controlling principles for determining the seaward
limits of inland waters for purposes of the Submerged
Lands Act. See pages 912, infra. The United States’
United States in support of the “ten-mile” rule of the sort
that could justify a departure from the Convention’s re-
quirements. See pages 18-27, infra.*
A. This Court Has Ruled That A State's Entitlement
To Land Beneath Coastal Inland Waters Shall Be
Determined On The Basis Of The Convention
This Court held in a landmark case, United States v.
California, 332 U.S. 19 (1947) (California 1), that the
United States, rather than any individual State, has para-
hich granted the States title to a specified measure of
the submerged land seaward of the coastline. That Act
defined the “coast line” as “the line of ordinary low water
Alaska's characterization of the United States’ current practice
as “strictly applying the arcs-of-circles method” (Alaska Except. Br. 4
5) is inaccurate if the State means to suggest that the United States
determines the limit of the State’s Submerged Lands Act grant strictly
from the actual low-water mark of the mainland and islands. The
United States also draws the boundary from the limits of inland
waters. But, unlike Alaska, the United States relies on the Convention
to determine those limits.
10
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.” SLA § Ae), 48 U.S.C. 1301(c). But that
Act did not establish principles for drawing the closing
lines separating coastal inland waters (such as bays and
inlets) from the territorial sea. See Report 15-16.
This Court addressed the question of inland waters in
United States v. California, 381 U.S. 139 (1965) (Califor-
nia II). The Court ruled that the Convention on the
Territorial Sea and the Contiguous Zone supplies the
principles for determining the extent of inland waters
under the Submerged Lands Act. Id. at 161-167. Under
the Convention’s principles, a coastal feature qualifies
as inland waters if (a) it satisfies the requirements of
a juridical bay, including a 24-mile closing rule and a
“semi-circle” test; or (b) it qualifies as “historic” inland
waters. Art. 7,15 U.S. T. 1609. See California II, 381 US.
at 169-175. The Convention also gives a nation the option
of using “straight baselines” for determining seaward
boundaries if its “coast line is deeply indented and cut into,
or if there is a fringe of islands along the coast in its
immediate vicinity.” Art. 4, 15 U.S.T. 1608. But the
United States has elected not to use the optional straight-
baselines method, and hence a State cannot rely on that
methodology to extend the scope of its inland waters.
California “II, 381 U.S. at 167-169. See Report 17-18, 44-45.
The Court adopted its Convention-based approach over
the objections of both California and the United States.
California had argued that inland water determinations
should be made on the basis of each State’s understanding
of its inland waters at the time of the State’s admission to
the Union. See California II, 381 U.S. at 149. The United
States, by contrast, had argued that the determinations
should be made on the basis of an assessment of inland
water principles as of 1953, when Congress enacted the
11
Submerged Lands Act. See id. at 149, 164. The Court
concluded, however, that Congress had not intended either
of those results, id. at 150-165, but, instead, had “left the
responsibility for defining inland waters to this Court,”
id. at 164. The Court accordingly announced a controlling
principle:
It is our opinion that we best fill our responsibility 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 President, provides such definitions.
We adopt them for purposes of the Submerged Lands
Act.
Id. at 165 (footnote omitted). The Court determined that
fixing the meaning of inland waters in terms of the Con-
vention for purposes of the Submerged Lands Act would
“fulfill the requirements of definiteness and stability
which should attend any congressional grant of prope: y
rights belonging to the United States.” Id. at 167. See
Report 17-18.
Alaska is accordingly wrong in its fundamental premise
that Alaska’s boundaries “were fixed by the United States’
policy in 1959 of enclosing as inland waters areas between
the mainland and fringing islands less than ten miles
apart.” Alaska Except. Br. 10. The Court’s decision in
California II categorically holds that the extent of each
State’s inland waters shall be determined by the rules set
forth in the Convention, and not by any perceived policies
at the time of an individual State’s admission to the Union.
Since the California II decision, the Court has consis-
tently followed the Convention’s principles in coastal
inland water disputes, including a previous dispute be-
tween the United States and Alaska. See United States
12
v. Maine, 475 U.S. 89, 938-94 (1986); United States v.
Louisiana (Alabama and Mississippi Boundary Case),
470 U.S. 98, 98 (1985); United States v. Maine (Rhode
Island and New York Boundary Case), 469 U.S. 504, 513
(1985); United States v. California, 447 U.S. 1, 5, 9 (1980)
(California IV ), United States v. Alaska, 422 U.S. 184,
188-189 (1975); United States v. Louisiana (Louisiana
Boundary Case), 394 U.S. 11, 35 (1969). There is no rea-
son to depart from that settled practice now.
B. Under The Convention, The United States’ Past
Policies And Practices Remain Relevant To Historic
Inland Waters Claims, But Alaska Has Not Made An
Historic Inland Waters Claim In This Case
The Court’s decision in California II requires a State
to base its inland waters claim on the principles set forth
in the Convention. As the Court recognized, the Con-
vention takes into account historic policies and practices
in a specific, but limited way. Under the Convention, a
State may establish that an enclosed coastal area is inland
waters by proving that it satisfies the requirements of a
juridical bay: (1) the feature must be a well-marked inden-
tation into the mainland whose area is as large as, or
larger than, that of a semi-circle whose diameter is drawn
across the mouth of the indentation; and (2) the closing
line between the low-water marks of the natural entrance
points may not exceed 24 miles. Art. 7(2) and (4), 15 U.S.T.
Experience has established the wisdom of the Court's de on
in California IJ. The Convention has provided authoritative rules for
resolving inland waters disputes and “many of the lesser problems re-
lated to coastlines.” 381 U.S. at 165. Furthermore, as we show below,
use of the Convention will limit the occasion for litigation over whether
and what historic delimitation policies were in place when each of
the coastal States entered the Union to those situations in which a
State has a claim to “historic” inland waters under Article 7(6) of the
Convention.
13
1609. See California II, 381 U.S. at 169-172; see also, e. g.,
Report 176-226; U.S. Except. Br. 9-11. Alternatively, a
State may establish that the area constitutes “historic”
inland waters. Art. 7(6), 15 U.S.T. 1609. See California
II. 381 U.S. at 172-175; see also, e.g., Alabama and
Mississippi Boundary Case, 470 U.S. at 99-101 & n.2.°
The Convention does not define what features con-
stitute “historic” inland waters, but this Court stated in
the Alabama and Mississippi Boundary Case that they
comprise an area “over which a coastal nation has tradi-
tionally asserted and maintained dominion with the
acquiescence of foreign nations.” 470 U.S. at 101. The
Court additionally stated that “at least three factors are
to be taken into consideration in determining whether a
body of water is a historic bay: (1) the exercise of author-
ity over the area by the claiming nation; (2) the continuity
of this exercise of authority; and (3) the acquiescence of
foreign nations.” Id. at 101-102. The Court looked to a
variety of evidence bearing on those factors in that case,
see id. at 102-111, and concluded that the evidence, “con-
sidered in its entirety, is sufficient to establish that
Mississippi Sound constitutes a historic bay,” id. at 115.
Alaska cites the Alabama and Mississippi Boundary
Case as showing that the United States had a past policy
that controls the outcome in this case. Alaska Except.
Br.7. Alaska relies specifically on the Court’s statement
that, between 1903 and 1961 (when the United States rati-
fied the Convention), “the United States had adopted a
policy of enclosing as inland waters those areas between
the mainland and off-lying islands that were so closely
As the Court noted, Article 706% provisions respecting “historic
bays” apply to areas that strictly speaking are not “bays.” 470 U.S. at
101 n.2. The Court left open “how unlike a juridical bay a body of
water can be and still qualify as a historic bay.” Ibid.
i
grouped that no entrance exceeded 10 geographical miles.”
470 U.S. at 106. Alaska argues that the Court’s observa-
tion “resolved” the issue here and establishes that the
State is entitled to submerged lands in the Arctic Ocean
fitting that description. Alaska Except. Br. 7. Alaska
overlooks, however, the context in which that observation
was made.
The Court discussed the United States’ past policy in
the specific and limited context of whether Mississippi
Sound qualified as an historic bay under Article 7(6) of the
Convention. See 470 U.S. at 100-101. It considered the
United States’ past expressions and practices as only one
of numerous sources of evidence bearing on the three-
factor test for historic bays. See id. at 102-111.° Indeed,
the Court appeared to agree with the United States that
what the Court described as a general policy would not, by
itself, establish “a sufficiently specific claim to the Sound
as inland waters to establish it as a historic bay.” Id. at
107. The Court concluded, however, that the policy was
relevant in “the present case” because “the general prin-
ciples in fact were coupled with specific assertions of the
status of the Sound as inland waters.” Ibid.’
In this case, by contrast, Alaska has specifically dis-
claimed that Stefansson Sound and the other disputed
6 The Court also considered, for example, the commercial and stra-
tegie importance of the Sound (470 U.S. at 102), the depth and geo-
graphie configuration of the Sound (id. at 102-103), historic use of the
Sound as an inland waterway (id. at 103), and federal navigational im-
provements and military defense of the Sound (id. at 103-105).
7 The Court specifically pointed to its own past description of the
Sound as inland waters in Louisiana v. Mississippi, 202 U.S. 1, 48
(1906), and the United States’ concessions in earlier phases of the liti-
gation, which together “represent(ed] a public acknowledgement of the
official view that Mississippi Sound constitutes inland waters of the
Nation.” 470 U.S. at 110.
15
areas qualify as historic inland waters under Article 7(6)
of the Convention. Report 44 n.13, 51. As the Master
stated:
Alaska points out that it is not attempting to show
that the waters inside the barrier islands qualify as
historic bays under Article 7(6) of the Convention.
Rather, it seeks to show that these waters were inland
by virtue of a general delimitation system that the
United States employed at the times significant to the
development of Alaska’s rights.
Id. at 51. In other words, Alaska eschews the Convention’s
test for historic inland waters and offers a different meth-
odology. Alaska’s position is squarely inconsistent with
this Court’s decision in California II, which held that the
Convention shall provide the rules for establishing inland
waters. 381 U.S. at 165.
Under California II, if Alaska wishes to demonstrate
that an area constitutes inland waters based on the United
States’ past practices, then it must come forward with suf-
ficient additional proof that the area satisfies the test for
“historic” inland waters under Article 7(6) of the Conven-
tion. If Alaska were correct that a State may rely on his-
toric practices alone, divorced from the Convention’s re-
quirements, then this Court would have to discard the
approach that it adopted in California II and has followed
in all subsequent inland waters delimitation cases, which
insist on adherence to the Convention’s requirements.
See, e.g., Maine, 475 U.S. at 95, 105 (recognizing that, if a
State can claim inland waters on the basis of “ancient
title,” the claim must be predicated on Article 7(6) of the
Convention).
Alaska argues that there are dicta in California II that
leave open an avenue for circumventing the Convention’s
requirements. As noted above, the Court observed that
16
the Convention allows, but does not require, a nation to
use “straight basélines” to delimit inland waters if the
mainland is “deeply indented” or surrounded by “a fringe
of islands,” Art. 4, 15 U.S.T. 1608. See California II, 381
U.S. at 167-168. The Court concluded that the choice
whether to use straight baselines rests with the United
States, but additionally observed as follows:
The national responsibility for conducting our inter-
national relations obviously must be accommodated
with the legitimate interests of the States in the
territory over which they are sovereign. Thus a con-
traction of a State’s recognized territory imposed by
the Federal Government in the name of foreign policy
would be highly questionable.
Id. at 168. Relying on the dicta, Alaska argues that it is
entitled to demonstrate, entirely apart from Article 7(6) of
the Convention, that the United States’ failure to adhere
to its purported historic delimitation policy has result-
ed in a contraction of Alaska’s “recognized territory.”
Alaska Except. Br. 10-13.
Alaska’s suggested approach is unwarranted, because
this Court has fully addressed its concern over the po
tential “contraction of a State’s recognized territory”
through the framework of the Convention. Under Califor-
nia II, the Convention establishes the controlling stan-
dards for determining what coastal areas are in fact inland
waters and therefore a part of a State’s “recognized terri-
tory.” If a State cannot establish that an area qualifies as
historic inland waters under Article 7(6) of the Conven-
tion, then the State cannot justifiably claim that the area
is part of its “recognized territory.” But if a State does
demonstrate that an area qualifies as historic inland
waters, then the United States cannot divest the State
17
of the associated submerged lands. See Alabama and
Mississippi Boundary Case, 470 U.S. at 111-112.°
In this case, Alaska has never suggested that Stef-
ansson Sound and the other disputed areas qualify as
historic inland waters under Article 7(6) of the Con-
vention. See Report 44 n.13, 51. Cf. United States v.
Alaska, 422 U.S. 184 (1975) (rejecting Alaska’s claim that
Cook Inlet, near Anchorage, is an historic bay). Thus,
Alaska has failed to establish that the lands in question
are “recognized territory,” and Alaska has no basis for
arguing that the United States’ adherence to the normal
baseline provisions of the Convention has impermissibly
contracted Alaska’s recognized territory.“
8 The Court specifically held in the Alabama and Mississippi
Boundary Case that the United States’ international disclaimer of
territory was insufficient to divest the State of Mississippi of its claim
of “historic title” that “had ripened prior to the United States’ ratifica-
tion of the Convention in 1961 and prior to its disclaimer of the inland
water status of the Sound in 1971.” 470 U.S. at 112. Accord Louisiana
Boundary Case, 394 U.S. at 77 n.104 (United States cannot “pre-
vent recognition of a historic title [under Article 7(6)] which may have
already ripened because of past events”); compare California II, 381
U.S. at 175 (accepting a federal disclaimer where the State had failed
to demonstrate historic title under the Convention).
As noted above, the Court expressed its concern over a con-
traction of recognized territory in the specific context of the United
States’ decision against using the optional method of straight baselines
in an area where that method would be permissible. See California II.
381 U.S. at 168. In this case, Alaska has pressed its argument before
this Court on the basis of the “ten-mile” rule. But the same result
would follow if Alaska were contending (as it did before the Special
Master, Report 25-28) that the United States is obligated to draw
recognized (id. at 45, 48 n.14), the United States has followed a con-
sistent practice of refusing to adopt straight baselines. See Maine, 475
U.S. at 94; Alabama and Mississippi Boundary Case, 470 U.S. at 99;
United States v. Louisiana (Louisiana Boundary Case), 420 U.S, 529
18
C. Even If Alaska Could Base A Claim To Inland
Waters On Principles Other Than Those Set Out In
The Convention, It Has Not Done So Here
In this case, the Special Master generously “assume[d]
arguendo that something less than the disclaimer of a
historic bay might amount to an impermissible contrac-
tion of a state’s territory.” Report 52. He nevertheless
concluded that Alaska had failed to demonstrate such a
contraction in this case. Id. at 52-175. For the reasons
stated above, the Court does not need to decide that issue:
Alaska cannot claim a contraction of its “recognized terri-
tory” unless it first demonstrates under the Convention
that the area in question qualifies as historic inland
waters. But if the Court decides to consider the issue, it
will find that the Master’s decision is correct. Alaska
cannot claim that the United States’ adherence to the
Convention resulted in a contraction of Alaska’s recog-
nized territory, because the United States did not have a
sufficiently “well-established and well-defined rule for
inland water delimitation to imply such a claim.” Id. at 52.
The Master conducted a scholarly and exhaustive ex-
amination into the history of the United States’ state-
ments and practices respecting the delimitation of inland
waters. His examination shows that, during the Nation’s
(1975) (accepting the Report of the Special Master); see also Louisiana
Boundary Case, 394 U.S. at 72-78; California II. 381 U.S. 167-169.
Alaska and the United States stipulated before trial that the United
States has not drawn straight baselines in the area in question.
Report 45 (citing Joint Statement 7). The United States’ adherence
to that practice has not contracted Alaska’s “recognized territory”
because, as explained above, Alaska has not proved an historic inland
waters claim under Article 7(6) of the Convention. Alaska cannot ah 8
that result by attempting to piece together past statements or ons
2 — Ok Oh Gavin a ae
dards of Article 7(6).
19
history, various United States officials have occasionally
alluded to variants of a “ten-mile” rule, as well as other
methods, for delimiting coastlines, but that those episodic
references did not amount to a consistent or sufficiently
well-defined policy for Alaska to assert a claim to “recog-
nized territory” for the areas at issue along the Arctic
coast. See Report 56-70 (experience before 1929); id. at 71-
83 (1929 to 1949); id. at 83-109 (1950 to 1952); id. at 109-141
(1953 to Alaska’s statehood); id. at 141-172 (post-statehood
developments).
Alaska’s contrary depiction of history (Alaska Except.
Br. 16-39) is not persuasive when viewed against the Mas-
ter’s detailed analysis, which we commend to the Court’s
careful review. We highlight several specific points to
demonstrate the shortcomings of Alaska’s arguments.
1. Alaska insists that the Court’s general observations
in the Alabama and Mississippi Boundary Case respect-
ing the United States’ past views and practices establish
that the United States had a “ten-mile” policy that is
binding in this case. The Master explained why that is not
so. Report 52-55. The Court’s observations in that case
respecting United States policy were made in the specific
context of an historic inland waters determination under
Article 7(6) of the Convention. The question of the exact
nature of the United States’ past practices “was not
strictly necessary to the decision” and “was not fully
briefed.” Report 54. Indeed, the Special Master in the
Alabama and Mississippi Boundary Case had “quoted
numerous statements of the pre-Convention policy”; there
“is considerable variation among the statements”; and “he
did not select any particular statement of policy as being
more accurate or more authoritative than the others.”
20
Ibid. (citing Report of Special Master Walter P. Arm-
strong, Jr., at 39-42, 48-53 (1984) (No. 9, Orig. )).“
The Special Master in this case examined the materials
and arguments that were placed before the Court in the
Alabama and Mississippi Boundary Case. He concluded:
Given this history, I do not believe that the Court in
[that case] intended to pass upon what statement of the
rule most accurately reflected United States policy
regarding near-shore islands.
Report 55. The Court’s decision in the Alabama and
Mississippi Boundary Case confirms the Master’s con-
clusion. As we noted above, the Court appeared to agree
with the United States that the past delimitation prac-
tices of the United States, by themselves, did not provide
a “sufficiently specific’ basis for claiming Mississippi
Sound as inland waters. 470 U.S. at 107. The Court
indicated, instead, that the United States’ past practices
were a relevant consideration because “the general prin-
ciples in fact were coupled with specific assertions of the
status of the Sound as inland waters.” Ibid.
In the Alabama and Mississippi Boundary Case, the
question of historic delimitation practice was merely one
of many considerations in the Article 7(6) inquiry, and the
Court had no need to look beyond statements of “genera!
principles.” The same cannot be said here." Moreover, if
10 Special Master Armstrong’s Report in the Alabama and Missis-
sippi Boundary Case and all of the other Master’s Reports respecting
coastal boundaries have been collected and reproduced in Michael W.
Reed, G. Thomas Koester & John Briscoe, The Reports of the Special
Masters of the United States Supreme Court in the Submerged Lands
Cases 949-1987 (1991) (Submerged Lands Cases).
As the Master noted, “(flor Mississippi Sound, the differences
among statements apparently made no difference in resul’ For the
northern coast of Alaska, that may not be the case.” Report 55.
21
the Court decides to depart from its past decisions and to
recognize historic inland waters claims based on consid-
erations outside of the Convention framework, it should
at least require that the State demonstrate that its claim
is based on a “well-established and well-defined rule for
inland water delimitation.” Report 52. As the Special
Master explained, “the exact nature of the United States’
historie practice is a matter of some intricacy.” Id. at 55.
Hence, the Master was justified in conducting “a more
detailed examination of the practice than might otherwise
have seemed necessary.“ /bid.”
2. The Master determined that, “before the Conven-
tion, the United States did sometimes enclose waters
behind coastal islands as inland waters.” Report 138.
That determination is consistent with the Court’s ulti-
mate ruling in the Alabama and Mississippi Boundary
Case, 470 U.S. at 115. But as the Master explained in his
@ There is no merit in Alaska's argument (Alaska Except. Br. 8)
that collateral estoppel bars that inquiry. As an initial matter, Alaska
acknowledged before the Master that the United States is generally
not subject to non-mutual collateral estoppel. See Report 30 (noting
Alaska’s acknowledgment of United States v. Mendoza, 464 U.S. 154,
1163 (1984)). As a result, “Alaska dlid] not seek to invoke collateral
estoppel against the United States,” and instead “introduced evidence
aimed at proving the ten-mile rule independently.” Report 30, 53-54.
In any event, as we have explained above, the Court's characteriza-
tions in the Alabama and Mississippi Boundary Case were made in the
specific context of an historie“ inland waters dispute. The Court's
observations concerning “general principles” do not have controlling
legal significance in the situation presented here, where Alaska's novel
claim could succeed only upon demonstrating the existence in the
past of a “well-established and well-defined rule for inland water
delimitation.” Id. at 52.
Report, the United States’ underlying policy was not con-
sistent or well defined:
The evidence plainly shows that, as of Alaska’s
statehood, the United States had not developed a
general policy of claiming as inland waters any waters
behind islands tht u tisfied a ten- mile rule. At Janu-
ary 3, 1959, no such general rule had ever been
announced as American policy, unless perhaps in the
Alaska Boundary Arbitration of 1903. The rule that
had been recently stated, in various forms, was a rule
for straits to an inland sea. The latter was clearly not
equivalent to a simple ten-mile rule for islands.
Report 127.
Contrary to Alaska’s fundamental contention (Alaska
Except. Br. 19), the Arbitration did not “crystallize” the
United States’ policy into “an explicit 10-mile rule for
inland waters enclosed by islands.” For example, the
United States formally proposed principles to the League
of Nations Conference for the Codification of International
Law, held at the Hague in 1930, that did not include a ten-
mile rule for inland waters. The United States instead
proposed that individual islands would have their own
three-mile belt of territorial sea and that any pockets or
indentations of high sea created by that method would be
assimilated to a nation’s territorial waters, not its inland
waters. See Report 71-75. The other materials cited by
the Master further underscore that the United States
never formally adopted, as an official and enduring
for the Nation, the ten-mile rule that Alaska urges.
3 The 1903 Alaska Boundary Arbitration involved a dispute be-
tween the United States and Great Britain over the international
boundary in southeastern Alaska. In the course of the arbitration,
counsel for the United States had accepted the use of a ten-mile rule for
closing bays. See Report 64-65. But the arbitration tribunal did not
The Master examined the consequences of that finding
for Alaska’s claims in this case. He stated:
I cannot regard it as established that the United
States would have treated the disputed areas as inland
waters at the time of Alaska’s statehood. No occasion
had arisen that required the United States to take a
position on their status. No actual determination had
been made. The principles that would govern the de-
termination were vague and, as I shall discuss below,
perhaps discretionary.
Report 140-141. That conclusion points up the distinction
between this case and the Alabama and Mississippi
Boundary Case, where “the general principles in fact
were coupled with specific assertions of the status of the
Sound as inland waters.” 470 U.S. at 107.
decide the issue. See id. at 65. From that time until Alaska’s state-
hood, United States officials regularly made statements that departed
from or did not mention the ten-mile rule. See, e.g., id. at 68-70 (United
States international commentary in 1929 that made no mention of ten-
mile rule); id. at 71-75 (United States international proposals in 1930
supporting delimitation methodology that was inconsistent with the
ten-mile rule); id. at 76-80 (United States domestic and international
statements in 1949 supporting the 1930 proposals); id. at 98-103 (State
Department letter in 1951 that set forth delimitation policies but made
no mention of the ten-mile rule); id. at 105-107 (State Department letter
in 1952 that stated delimitation policies inconsistent with the ten-mile
rule); id. at 122-125 (State Department memorandum in 1957 that
discussed delimitation policies but made no mention of the ten-mile
rule). Indeed Alaska’s own expert witness, Professor Jonathan Char-
ney, acknowledged that there is no evidence that the United States
closed either inland waters or territorial sea behind fringing islands
even from 1903 to 1930. Tr. 3083. In fact, Professor Charney conceded
that “it could not be shown that there was any formal, regularized
decision by the United States as a whole as to what exactly its foreign-
policy position was with respect to how to fix the baselines for mea-
suring the territorial sea.” Tr. 3095.
24
More fundamentally, the Master’s conclusion is con-
sistent with this Court’s decision in California II. The
Court concluded in that case that, when Congress enacted
the Submerged Lands Act in 1953, “there was no inter-
national accord on any definition of inland waters, and
the best evidence (although strenuously contested by
California) of the position of the United States was the
letters of the State Department which the Special Master
refused to treat as conclusive.” 381 U.S. at 164. The
Court adopted the Convention’s approach to resolve that
very uncertainty. Id. at 164-165. The Court observed:
Before today’s decision no one could say with assur-
ance where lay the line of inland waters as contem-
plated by the Act; hence there could have been no
tenable reliance on any particular line. After today
that situation will have changed.
Id. at 166. The Special Master’s exhaustive study of past
positions and statements by various United States offi-
cials confirms the Court’s observations and the soundness
of its Convention-based approach to delimiting inland
waters. Indeed, in the end, his analysis simply under-
scores that Alaska should not be able to claim an historic
right to inland waters as “recognized territory” unless it
can show under Article 7(6) of the Convention that they
are historic inland waters.
3. Alaska contends that the United States “followed
the 10-mile rule even after the Court adopted the Con-
vention for Submerged Lands Act purposes” (Alaska
Except. Br. 36-39) and “changed its position in 1971 for
reasons unrelated to international relations” (id. at 39-40).
Those contentions are without merit.
As we have explained above, in California II, the United
States and California had argued against using the Con-
vention to delimit inland waters, but the Court rejected
those arguments. See 381 U.S. at 161-165. Since the
Court’s decision in California II, the United States has
adopted and followed the normal baseline provisions of the
Convention to resolve inland water disputes. The United
States has done so precisely because the Court concluded
in California II that the Convention—and not any pre-
Convention methodology—established the i
rules. The only exception arises from the United States’
decision, shortly after California II, to honor a previous
concession made in pending litigation.
At the time of the California II decision in 165, the
United States was engaged in continuing litigation with
Louisiana respecting ownership of submerged lands in the
Gulf of Mexico. See United States v. Louisiana, 363 U.S.
1 (1960). In 1961, the United States had proposed a closing
line that, while not strictly based on a ten-mile rule,
enclosed water bodies formed by fringing islands with
openings of ten miles or less in the area of Chandeleur
Sound. See Report 142-152. The United States had
adhered to that line in 1961, notwithstanding the ratifi-
cation of the Convention, as an “adherence to an earlier
commitment.” Id. at 150. In 1965, after the Court’s deci-
sion in California II, the United States decided against
withdrawing that particular concession. See id. at 155-
157. As the Master recognized, the United States simply
elected to treat the long-standing dispute over Chandeleur
Sound as settled by a previous concession. Contrary to
Alaska’s assertions (Alaska Except. Br. 39), the United
States was not following the ten-mile rule, much less
committing the United States to such a rule in all cir-
cumstances in the future.“
4 The United States made clear in the formal stipulation
con-
cerning Chandeleur Sound that it made the concession Af Jor the sole
purpose of expediting the ultimate resolution of this case, and without
There is also no merit to Alaska’s separate contention
(Alaska Except. Br. 39-40) that the United States has
improperly declined to use the Convention’s optional
method of straight baselines. As noted above, the United
States indeed has not elected to use that method. See page
10, supra. But as this Court has repeatedly recognized,
that decision rests within the discretion of the United
States. The United States has consistently followed a
policy against the use of straight baselines. See note 9,
supra. Alaska’s speculation about the United States’
motivations are beside the point. “This is not a situation
in which the United States has created a contraction of
Alaska’s recognized territory in the Arctic; it is not a case
in which the United States in effect used straight base-
lines but ‘abandon[ed] that stance solely to gain advantage
in a lawsuit. ...’ Louisiana Boundary Case, 394 US. at
73 n.97.“ Report 169.
Although Alaska complains of a contraction of its rec-
ognized territory, it is Alaska that seeks to expand its
boundaries beyond what the Convention contemplates and
place itself in a favored position vis-a-vis other States.
Alaska urges application of a ten-mile closing rule based
on the United States’ purported pre-Convention policy at
the time of Alaska’s statehood (Alaska Except. Br. 10-13),
even though similar geographic areas in other States have
been held not to be inland waters. See Report 173. Fur-
thermore, at the same time that Alaska has argued that its
deciding whether Chandeleur or Breton Sounds are inland waters.”
See Report of Special Master Walter P. Armstrong, Jr., at 63 (1974)
(App. A-2 Stip.), United States v. Louisiana (No. 9, Orig.) (reproduced
in Submerged Lands Cases 249). The United States also indicated that
the agreement “is not based on the belief that these are historic inland
waters or described by a system of straight baselines.” Id. at 66
(reproduced in Submerged Lands Cases 252).
27
boundaries “were fixed by the United States’ policy in
1959” (Alaska Except. Br. 10), Alaska has not hesitated to
argue that it is entitled to the Convention’s more inclusive
24-mile closing rule for juridical bays, such as Harrison
Bay. Harrison Bay and other similar coastal features
would not qualify as inland waters if they were subject to a
pre-Convention policy of drawing ten-mile closing lines for
bays and inlets. See Report 63-65."
At bottom, there is no consistency to Alaska’s position
save the principle of maximizing the State’s submerged
lands grant.
Il. DINKUM SANDS IS NOT AN ISLAND
The Submerged Lands Act grants to the coastal States
submerged lands within three miles of the coastline of the
mainland and offshore islands. See Report 15-18. Dinkum
Sands is a small gravel and ice formation located between
Cross and Narwahl Islands, about four to five miles from
each and about eight miles from the mainland. See id. at 2,
Fig. 1.1. The United States and Alaska disagree over
whether Dinkum Sands is an island for purposes of deter-
mining Alaska’s Submerged Lands Act grant. They agree,
however, that the question is governed by Article 10(1) of
the Convention on the Territorial Sea and the Contiguous
Zone, which defines an island as “a naturally-formed area
of land, surrounded by water, which is above water at high-
The use of a pre-Convention policy of drawing ten-mile closing
‘ines would also affect the inland waters status of numerous other bays
in Alaska, not at issue in this case, that are currently closed under
the Convention's 24-mile rule. An inspection of offical nautical charts
would reveal that the following bays and inlets are subject to greater
than ten-mile closing lines: Norton Bay; Kotzebue Sound; Nushagak
Bay; Kvichak Bay; Stepovak Bay; Cold Bay; Uyak Bay; Uganik/
Viekoda Bay; Chiniak Bay; Kachemak Bay; Kamishak Bay; Upper
Cook Inlet; Resurrection Bay; and Prince William Sound.
28
tide.” Art. 10(1), 15 U.S.T. 1609. See California II, 381
U.S. at 165; see also Report 227-230; U.S. Except. Br. 11-
12.
Alaska objects (Alaska Except. Br. 43-56) to the Mas-
ter’s recommendation that Dinkum Sands is not an island
under Article 10(1) of the Convention. See Report 230-310;
id. at 503-504 (Question 5); U.S. Except. Br. 11-12 (sum-
marizing the Master’s findings). Alaska challenges the
Master’s legal conclusion that Article 10(1) “requires an
island to be ‘above water at high tide’ at least ‘generally,’
‘normally,’ or ‘usually’” (Report 309). Alaska Except. Br.
45-51. Alaska also disputes his factual findings respecting
Dinkum Sands, including his finding that it “is frequently
below mean high water and therefore does not meet the
standard for an island” (Report 309). Alaska Except. Br.
51-54. Finally, Alaska argues that Dinkum Sands should
be treated as a temporary island in the unusual instances
when it is not submerged. Id. at 54-56.
A. The Master Correctly Determined That Article
1001) Of The Convention Includes As Islands
Only Features That Are Normally Above Mean
High Water
Article 10(1) of the Convention provides a definition of
an island, but it does not explicitly address how that
definition should be applied to a feature like Dinkum
Sands, which Alaska concedes is at times completely
submerged below mean high water. The Master therefore
undertook an examination of how Article 10(1) should be
applied in such a situation. He interpreted Article 10(1)
in light of a detailed examination of the history of develop-
ment of the Article. Further, he applied the same rules of
construction that this Court has applied when interpret-
ing the Convention.
29
1. The Master reviewed the origins of Article 10(1),
beginning with the Conference for the Codification of
International Law at the Hague in 1930. See Report 294-
297. As he recounted, the committee preparing for the
Conference circulated a questionnaire to solicit views on
issues, including the definition of an island. Based on the
responses, the committee proposed discussion of a stan-
dard that would require permanent elevation above high
tide:
BASIS OF DISCUSSION No. 14
In order that an island may have its own territorial
waters, it is necessary that it should be permanently
above the level of high tide.
Id. at 295. At the Conference, a subcommittee that was
assigned the issue produced a definition incorporating a
prerequisite of permanence:
ISLANDS
Every island has its own territorial sea. An island
is an area of land, surrounded by water, which is
permanently above high-water mark.
Id. at 296." The 1930 Conference took no action on
the subcommittee report, and the Conference ultimately
16 See Conference for the Codification of International Law, 2
Bases of Discussion: Territorial Waters, League -of Nations Doc.
C.74.M.39.1929.V (1929), reprinted in 2 League of Nations Conference
for the Codification of International Law [1930] 54 (ed. Shabtai
Rosenne 1975).
7 See 3 Acts of the Conference for the Codification of International
Law, Minutes of the Second Committee: Territorial Waters, League of
Nations Doc. C.351(b).M.145(b).1930.V (1930), reprinted in 4 League of
Nations Conference for the Codification of International Law [1930] 219
(ed. Shabtai Rosenne 1975).
30
terminated for lack of agreement on the width of the terri-
torial sea. See id. at 296-297.
In 1951, the International Law Commission of the
United Nations carried on the work of the 1930 Confer-
ence. See Report 297-299. Mr. J.P.A. Francois, the special
rapporteur, initially proposed the definition of an island
suggested by the subcommittee of the 1930 Conference:
“an area of land surrounded by water, which is perma-
nently above high-water mark.” Id. at 297." During the
1954 session, at the recommendation of Sir Hersch
Lauterpacht of the United Kingdom, the Commission add-
ed the words “in normal circumstances” to allow for “ex-
ceptional cases.” Ibid.” The Commission’s final report
included that one change:
Every island has its own territorial sea. An island
is an area of land, surrounded by water, which in nor-
mal circumstances is permanently above high-water
mark.
Id. at 298.”
The United States Department of State prepared an
internal memorandum in 1957 evaluating the work of the
International Law Commission. See Report 298-299. On
18 See J.P.A. Francois, Report on the Regime of the Territorial Sea,
[1952] 2 Y.B. Int’l L. Comm’n 25, 36, U.N. Doc. A/CN.4/53 (in French,
translation from Alaska Exh. 84A-21, at 41); J.P.A. Francois, Second
Report on the Regime of the Terr torial Sea, [1953] 2 Y.B. Int'l L.
Comm'n 57, 68, U.N. Doc. A/CN.4/61 (in French); J.P.A. Francois,
Third Report on the Regime of the Territorial Sea, (1954) 2 V. B. Int’! L.
Comm'n 1, 5, U.N. Doe A/CN.4/77 (in French).
9 See Summary Records of the 260th Meeting, (1954) 1 Y.B. Int'l
L. Comm'n 90, 92, 94.
2 Report of the International Law Commission to the General
Assembly, 11 U.N. GAOR Supp. (No. 9) at 16, U.N. Doc. A/3159 (1956),
reprinted in [1956] 2 V. B. Int'l L. Comm’n 253, 270.
31
the subject of islands, Mr. Benjamin Read suggested that
the words “permanently” and “in normal circumstances”
appeared inconsistent and could be omitted:
The Commission’s definition is the same as that
adopted by the Second Sub-Committee at the 1930
Hague Conference, except that the words “in normal
circumstances” were added... in order to “cover
exceptional cases.” The added words seem incompati-
ble with the succeeding word “permanently” in the
definition. Both terms might well be omitted, since
current international law does not purport to solve
such minor problems.. as how to treat land which is
above sea level at neap high tides Ii. e., twice monthly
lowest high tides) but not spring high tide [i.e., twice
monthly highest high tides} or only at high tides
during certain seasons of the year.
Ibid. (quoting Alaska Exh. 84A-021, at 11) (emphasis
added). The memorandum made three significant points:
(a) the qualifier “in normal circumstances” was intended
to allow for “exceptional cases”; (b) those cases were un-
derstood to mean inundation at unusually high states of
high tide; and (c) those events were considered to present
only “minor problems.” Those minor problems are solved
today by recognition of a “high water datum.” See Report
234-236.
Accordingly, as the Master explained, the United States
recommended deletion of the words “permanently” and “in
21 The parties agree that, under established practice, “high tide”
under Article 10 is construed to mean “mean high water,” a datum
developed based on 19 years of observations by the National Ocean
Service. Report 234-236; see United States v. California, 382 U.S. 448,
449-450 (1966) (per curiam) (California III).
32
normal circumstances,” at the 1958 United Nations Con-
ference on the Law of the Sea:
The requirements in the International Law Commis-
sion’s definition of an island that it shall be above the
high-water mark “in normal circumstances” and
“permanently” are conflicting, and since there is no
established state practice regarding the effect of-
subnormal or abnormal or seasonal tidal action on the
status of islands, these terms should be omitted.
Report 299-300. The 1958 Conference accepted the
United States’ proposed changes. Id. at 300.” The final
Convention text is reflected in Article 10(1), which defines
an island as “a naturally-formed area of land, surrounded
by water, which is above water at high-tide.” Ibid.
The Master reasoned from the history of the Conven-
tion that the “1958 deletion of ‘permanently’ must be read
together with the deletion of ‘in normal circumstances.’ ”
Report 301. He determined that the drafters intended to
allow for only “temporary inundation,” stating:
The two phrases were viewed as conflicting, but in fact
any conflict seems to be limited to the case where
abnormal circumstances lead to the temporary inunda-
tion of a feature that would otherwise qualify as an
island.
Ibid. His reconciliation of the two phrases, anc his ex-
planation of their deletion, are consistent with the ob-
servations of two of the most influential members of the
2 U.N. Conference on the Law of the Sea, Ist Comm., Sum-
mary records of meetings, 3 Official Records 242, U.N. Doc.
A/CONF.13/C.1/L.112 (1958).
2% U.N. Conference on the Law of the Sea, Ist Comm., 52d mtg., 3
Official Records 160, 161-163 (1958); id., 19th plen. mtg., 2 Official
Records 61, 64.
!
33
International Law Commission. In 1954, Mr. Spiropoulos
and Mr. Francois, the Rapporteur, commented that Mr.
Lauterpacht’s addition of the phrase “in normal circum-
stances” was unnecessary because it was implied in the
original draft. See Clive Symmons, The Maritime Zones
of Islands in International Law 42 (1979).
Thus, the Master construed Article 10(1) to define an
island as a feature “generally”, “normally,” or “usually”
above mean high water. Report 302. Contrary to Alaska’s
argument, the Master did not fashion a new standard
(Alaska Except. Br. 6, 44); he interpreted Article 10(1) in
light of the drafters’ deletions with the express intention
of avoiding any new standard:
I do not believe the drafters intended, in eliminating
supposedly conflicting standards, to adopt yet another
standard less demanding than either of the first two.
That the drafters declined to say an island must be
“permanently above water at high tide” or “normally
above water at high tide” does not mean they intended
to insert some weaker qualifier such as “sometimes”
or “occasionally.”
Report 301.”
* Sir Gerald Fitzmaurice, the primary British delegate to the
1958 Conference, and later a Judge on the International Court of
Justice, commented on the definition immediately after the Conference,
stating: ;
Un the absence of any special agreement to the contrary, any
natural formation (even a mere rock), permanently (even if only
just) visible at all states of the tide, generates a territorial sea.
Gerald Fitzmaurice, Some Results of the Geneva Conference on the
Law of the Sea, 8 Int'l & Comp. L. Q. 73, 85 (1959).
* The Master noted that “an arguably relevant international
case supports a rather demanding standard” of vertical permanence.
Report 301. Following the ratification of the Convention, England and
34
Indeed, Alaska once agreed with that interpretation, for
the Master observed when he issued his Report: “Even
Alaska contends only that Article 10 permits a feature
‘to slump on occasion’ below the tidal datum and still to
qualify as an island. AB [Alaksa Brief] 64.” Report 301.
Thus, it is Alaska that now seeks to graft a new standard
on the Convention definition. By rejecting “normally,”
Alaska apparently demands a weaker, more forgiving cri-
terion that ignores both “permanently” and “in normal
circumstances.” Under Alaska’s view, a feature need ap-
pear only episodically above mean high tide.
2. The Master’s reliance on the history of the devel-
opment of Article 10(1) is consistent with this Court’s
method of interpreting the Convention. In the Louisiana
Boundary Case, the Court examined the International
Law Commission’s addition to Article 11, which governs
the treatment of low-tide elevations for purposes of deter-
mining the baseline of the territorial sea. 394 U.S. at 40-
47." The United States argued that the addition was not
intended merely for clarification, but instead to effect a
change in Article 11’s meaning.” The Court disagreed,
France disputed whether Eddystone Rock off the coast of Cornwall was
an island. See ibid. (citing Delimitation of the Continental Shelf (U.K.
v. Fr), 18 R. Int'l Arb. Awards 3. 65-74 (1977)). The Rock was covered
only at “high water equinoctial springs.” Report 301 (quoting 18 R.
Int'l Arb. Awards at 66). Although the case was resolved on the ground
that France had already accepted the Rock as a basepoint, the Master
observed that “the parties did argue the case as if a formation, to be
4 ˙ RNR, ait
% The addition specified that low-tide elev could be used only
once to extend a baseline, so that a country could not unduly extend its
baselines seaward by leapfrogging from one low-tide elevation to the
next. 394 U.S. at 45.
2 The United States argued that the change was intended to pre-
clude extensions of the territorial sea that might otherwise be at-
stating that “any change in the basic meaning of the
Article” would have to be apparent in the history of its
development. Id. at 46. The Court explained:
Precisely the opposite conclusion, however, flows from
an inspection of the history of the Convention. The
amendment was advanced by the United States; yet its
explanation for the proposal contained not the slight-
est indication that any change in the basic meaning of
the Article was intended. Surely there would have
been some discussion of the reference to the territo-
rial sea as a measure of distance rather than as a situs
had it been the purpose of the United States or the
Conference to alter o significantly the meaning of
prior drafts and the existing international consensus.
Ibid. (emphasis added, footnote omitted). The Master
applied similar reasoning here. He examined the two dele-
tions in Article 10(1) and looked for any sign of departure
from the basic meaning of prior drafts. He found no such
sign. Compare Sale v. Haitian Centers Council, Inc., 509
U.S. 155, 186-187 (1998)
3. Alaska cites numerous sources (Alaska Except. Br.
45-51) to support its contention that Article 10(1)’s defi-
nition of an island encompasses “ephemeral” features.
Those sources are of little value because they are either
tempted by extending baselines from bay and river closings
to low-tide elevations. 394 U.S. at 41-43. —
Sometimes no significance at all should be attributed to the
choices of drafters, because they may have been simply searching for
the best way to describe a concept. See, ¢.g., 394 U.S. at 45 n.58; see
also 2A Norman Singer, Sutherland's Statutory Construction § 48.18
at 369 (5th ed. 1992) (“An amendment may have been adopted, ealy
because it better expressed a provision already embodied in the
original bill or because the provision in the original bill was unneces-
sary as unwritten law would produce the same result without it.”).
inconclusive or they predate the Convention and suffer
from the weight of countervailing authorities. Alaska
places particular reliance on its claim that Dinkum Sands
is “far more stable” than mudlumps at the mouth of the
Mississippi River, which Alaska contends are islands.
Alaska Except. Br. 45-46, 51. The Master appropriately
discounted the mudlumps as a precedent for Dinkum Sands
because of the absence of evidence concerning their be
havior. See Report 291-293 & n.49. Alaska put forward no
evidence that the mudlumps behave like Dinkum Sands,
which lacks vertical permanence and can rise above and
fall below mean high water over the span of days, weeks,
or months. As the Master stated, It he record contains
no evidence * * * of the behavior of these features in
general.” Id. at 293 n.49.
Alaska contends that the mudlumps are “temporary”
features based on The Anna, 165 Eng. Rep. 809 (1805). The
English court in that case found that a British privateer
had illegally captured an American cargo ship inside
United States territory because of the proximity of the
consistency of the mudlumps for purposes of
United States territory. The captive described them as
“small islands, which are always dry,” while the cap-
tor described them as “temporary deposits of logs and
out, the
2 Furthermore, the English court’s 1805 decision in The Anna is of
no value in interpreting Article 10(1) of the 1958 Convention. Indeed,
that case did not discuss the legal definition of an island. Instead, the
court described the mudlumps as forming “a kind of portico to the
mainland,” identified the issue as whether they are “to be deemed the
shore,” and ruled that “they are the natural appendages of the coast on
which they border, and from which indeed they are formed.” 165 Eng.
permit the stable residence of organized human
1106, 1108, 1161. groups”). See also Tr.
accretion and avulsion, sheds no light on the meaning of
Article 10(1) of the Convention.
In short, Alaska’s objection to the Master’s construc-
tion of Article 10(1) should be rejected. The Master’s
interpretation is rooted in his examination of the language
of Article 10(1) and the history of its development. His
method of examination is the same as that the Court
employed in interpreting Article 11 of the Convention, and
his conclusion is reasonable.
B. The Master Correctly Found That The Evidence
Showed Dinkum Sands To Be Frequently Below
Mean High Water
Alaska concedes that Dinkum Sands is “sometimes sub-
merged,” but nevertheless argues that it has the appear-
ance of an island. Alaska Except. Br. 51. That argument
is founded on a 1949-1950 United States survey, which
measured Dinkum Sands as above mean high tide. The
other sources to which Alaska points (charts, Baseline
Committee designations, and leasing maps) all rely on the
1949-1950 survey rather than independent observations.
The countervailing evidence before and after that
survey is extensive. Early cartography, including the
work of respected explorer and geologist Ernest de K.
Leffingwell, repeatedly shows only a low-tide elevation in
the area of Dinkum Sands. Observers saw no island at
that location during a 1947 photographic survey. Searches
for Dinkum Sands by ship in 1955 and by helicopter in 1976
concluded that it was “not there.” Later visits likewise
usually found it under water. Furthermore, Alaska ig-
nores the parties’ 1981 joint monitoring project, during
which the feature was surveyed in March, June, and
August and found to be below mean high water. In short,
the totality of the evidence shows that Dinkum Sands is
usually below water, and in any event it fails to establish
that Dinkum Sands is normally above mean hi as
Article 10(1) requires. It ——
Article 1001).
1. The Special Master reviewed voluminous carto-
graphic evidence put forward by the parties. See Report
240-242. Maps from the 19th century, if they marked any
feature at all, showed only a shoal in the area of Dinkum
Sands. Id. at 240. In the early 20th century, Ernest de K.
Leffingwell, a geologist and explorer, conducted the first
detailed mapping of the Alaska north coast, making ten
trips by ship and 31 trips by small boat and sled. Ernest de
K. Leffingwell, The Canning River Region, Northern
Alaska (U.S. Geological Paper 109) (1919) (U.S. Exh. 84A-
135). Historical geographer Dr. De Vorsey testified that
Leffingwell had an incentive to locate a feature between
Cross and Narwhal Islands to facilitate his surveying.
Report 241. However, Leffingwell’s map of the Dinkum
Sands area shows only a shoal submerged beneath a
minimum depth of 2.25 fathoms (13.5 feet). Ibid. Leffing-
well’s report served as a basis for United States Coast and
Geodetic Survey charts, which, throug 1950, marked
gar mat eaten pe Id. at 241-242.
> Coast and Geodetic Surve began prepara-
tions for the 1949-1950 hydrographic — The prepara-
tions included flights to photograph the beach and all
* * * islands.” U.S. Exh. 84A-227, at 2-3. A participant in
that survey, Harley Nygren (who was an ensign at the
time of the survey and a retired admiral at the time of this
trial), acknowledged that the photographs showed no evi-
dence of Dinkum Sands. Tr. 1336, 1356-1357; see also
Hydrographie Descriptive Report H-7761, U.S. Exh. 84A
225. In view of the cartography and photography, it is no
wonder that the members of the survey group, including
local natives, were surprised when they discovered “a new
gravel bar baring about three feet.” Report 231 (quoting
40
U.S. Exh. 84A-225, at 3). See Tr. 1361, 1378. As Nygren
later testified, Iwle had no indication whatsoever that
there was any such body in the area.” Tr. 1325-1326. The
group erected a survey target and photographed the fea-
ture. Based on the survey of 1949-1950, the Coast and Geo-
detic Survey charts showed Dinkum Sands as an island
until 1955. Report 231-232, 242.
2. In 1955, the Navy vessel U.S.S. Merrick conducted
an Arctic resupply operation. Report 232, 242-243. As part
of its mission, the Merrick was inspecting aids to naviga-
tion, both artificial and natural. Tr. 517. After attempting
to find Dinkum Sands, the commanding officer reported
“Survey Target and island not there.” U.S. Exh. 84A-241,
at 9. Alaska dismisses the report as “cryptic,” Alaska
Except. Br. 52, but that label ignores the full import of the
observation. The Merrick report explained that comments
were made about aids “only when the aid was definitely
sighted or definitely absent. When visibility or the dis-
tance of the ship from shore prevented certain knowledge
of the conditions of the aid, no comment was made.”
Report 242-243. While in the area, the Merrick also dis-
patched two small boats to assist the grounded U.S.S.
Archer T. Gammon. The boats came within two miles of
the location of Dinkum Sands when visibility was reported
as seven miles with no waves. Id. at 243; Tr. 1699-1700.
Based on the 1955 Merrick report, the Coast and Geo-
detic Survey resumed charting Dinkum Sands as a low-
tide elevation beginning with its 1956 edition. Report 232,
243. That designation reflected a standard practice that
was intended to warn mariners of possible navigation haz-
ards. Ibid.; Tr. 637, 641. In 1976, the Coast Guard and
the National Ocean Survey (NOS), successor to the Coast
and Geodetic Survey, conducted a project to “ ‘investigate
all charted landmarks’ along the Alaskan Arctic coast.”
Report 243 (quoting U.S. Exh. 84A-246, at 4). The agen-
41
cies conducted the survey by helicopter at 300 feet, and
NOS commander Ned Austin reported on Dinkum Sands:
Couldn't find island,” “Island Not There—Survey Target
Destroyed.” Ibid.; see U.S. Exh. 84A-246, at 19. Based on
the 1955 Merrick report and Commander Austin’s 1976
report, NOS continued to chart Dinkum Sands, for pur-
poses of navigation safety, as a low-tide elevation. Report
243.
Alaska makes much of 1971 baseline charts and a 1979
leasing map that treated Dinkum Sands as an island,
even though it was treated by the charting agency as a
low-tide elevation. Alaska Except. Br. 43-44, 53. The
Master appropriately considered neither of them to be of
significance, because they both stemmed from the 1949-
1950 survey alone and were contrary to later observations.
Report 232-233, 244. Indeed, the discrepancy is easily
explained. As noted above, Harley Nygren was an ensign
in the survey group that had personally observed Dinkum
Sands during the 1949-1950 survey. Twenty years later, in
1970, Nygren was an admiral and a member of the inter-
agency Baseline Committee, which was charged with de-
limiting the United States’ coastline and territorial sea.
Based on his personal experience, Nygren persuaded the
Committee that Dinkum Sands was an island, even though
the current charts showed it to be a low-tide elevation.
See Tr. 1639-1672. In the proceedings before the Master,
Nygren acknowledged that he did not examine, either be-
fore or after the Committee meeting, the reason why the
official charting agency had changed Dinkum Sands to a
low-tide elevation. Tr. 1373-1374. The 1979 leasing map
was merely another generation of the Nygren-influenced
Baseline Committee charts. Report 232-233, 244.
3. Alaska’s brief makes no mention of the joint moni-
toring project that the parties developed in the course of
the litigation to measure the elevation of Dinkum Sands
42
in relation to mean high water. That jointly funded,
$2.8 million project was conducted under a consensual pro-
tocol worked out in advance of the actual measurements.
Report 233, 248; U.S. Exhs. 84A-392, 84A-400. Under the
project, the feature was measured in March, June, and
August 1981, and each time it was found to be below mean
high water. Report 248. Alaska challenged those results,
but the Master rejected Alaska’s objections.
The joint project was conducted in two parts. First, the
parties contracted with NOS to compute a mean high wa-
ter datum for Dinkum Sands. As agreed, NOS trained an
independent contractor to collect the data, monitored the
collection process for accuracy, and then computed the
datum using standard NOS procedures. U.S. Exh. 84A-
400, at 1; Tr. 758, 788, 889. NOS made the computation
based on a year of tidal data from nearby Cross Island and
three months from Dinkum Sands. Ordinarily, 19 years of
continuous readings would be used, but readings of that
duration are not available in desolate Arctic regions.
Therefore, as agreed, NOS calculated an error band. U.S.
Exh. 84A-403. It showed that there was a 95% chance that
the tidal datum was accurate within plus or minus .206 feet
(2.47 inches) of the value that would have been calculated
using 19 years of readings. Report 249-252.
Second, the parties contracted with an engineering firm
to measure, under the parties’ oversight, the height of
Dinkum Sands. U.S. Exh. 84A-302. Elevations of the high
points of the formation were measured three times in
1981. In March, the top of the formation was determined
by augering through the ice cover until gravel was
encountered. In June, when the ice pack had begun to
break up, the top was determined by selecting the high
points of gravel that appeared above the ice. In August,
during open water, the surveyors measured the apparent
43
high point of the feature, which was submerged. Report
253-255.
After the measurements were made, Alaska prepared
the final report tying the two parts together. U.S. Exh.
84A-302. As had been agreed, the final report superim-
poses the separately determined mean high water datum
over the elevation measurements. Not until that time did
the parties know the results of the joint project. The
results showed Dinkum Sands to have been .28 feet below
mean high water in March; .02, 04 and 28 feet below mean
high water from the three highest points in June; and 2.27
feet below mean high water in August. The March mea-
surement is the only ice-locked, winter measurement ever
made of Dinkum Sands. While the two highest points in
the June survey were within the error band, the Master
found them to be of “little or no weight” because, as the
testimony showed, the gravel high points likely were piles
left from the augering during the March survey. Report
253-255.
The Master found Alaske’s objections to the joint pro-
ject to be unpersuasive. Report 255-269. Alaska argued
that the mean high water datum should be lowered by a
total of .26 feet by making two adjustments. As the Master
observed, the adjustments would still place all measured
elevations, exclusive of the two dubious June measure-
ments, below mean high water. Id. at 257. However, be-
cause the March and other June measurements would be in
the error band, he examined the two adjustments. Ibid.
The Master rejected Alaska’s argument to lower the
datum by .20 feet to account for alleged long-term tidal
trends, relying primarily on “the evidence that the trend
may vary locally not only in magnitude but in direction,
and in view of the lack of evidence of trend specific to
Dinkum Sands.” Report 262. He found it unnecessary to
rule on Alaska’s second downward adjustment of .06 feet to
4
account for barometric pressure effects on sea level, be-
cause it would not place Dinkum Sands above mean high
water at any of the times it was surveyed. Id. at 264. He
also noted his doubts about the reliability of the baromet-
ric pressure data and the appropriateness of singling out
only one of several sea-level influences. /bid.™
The Master also dismissed Alaska’s argument for a
wider error band. He found that the State’s argument had
“not been fully spelled out” and that, in any event, it was
not necessary to resolve because “(t]he controlling point
is the estimate of mean high water,” whatever the width
of the error band. Report 268-269. Furthermore, while
Alaska questioned the degree of possible variance from a
datum based on 19 years of tidal data, the figure computed
from one year of data is “the best estimate now available.”
Id. at 269. By agreeing to the one-year joint project, the
parties “consciously gave up some precision of result for
the sake of reasonable time and expense.” Id. at 269 n. 34.
4. The Master also considered numerous observations
of Dinkum Sands in years before and after the 1981 on
monitoring project. From 1970 to 1978, Dr. Reimnitz, t
United States’ expert geologist, observed Dinkum Sands
below water on all of several visits except one. Report 245-
246. In 1979, he observed Dinkum Sands both above and
31 It is also significant that NOS computed the mean high water
datum according to standard NOS procedures, as the parties had
agreed before embarking on the joint project, and that Alaska has
subsequently relied on it for mapping. Tr. 758, 788, 839, 1758.
* In fact, the error band is very close to the estimate provided to
the parties before the joint project, and the official responsible for
calculating the error band did not know the estimate before complet-
ing his work. Tr. 876-877. Although Alaska argued for those adjust-
ments, its primary source of evidence—the 1949-1950 survey—did not
have the benefit of an error band, nor were there trend and weather
adjustments. Tr. 1367.
45
below water. On July 25, 1979, Dr. Reimnitz photographed
Dinkum Sands as it usually appears during the open water
season—submerged. See Fig. 1, infra, U.S. Exh. 84A-
507a. Based on the closest data source, a tide gauge
approximately 15 miles away, he calculated the feature to
be .33 to .66 feet below mean high water. Report 247. In
1980, sightings ranged from one foot above water to a
meter below. Id. at 248. On July 31 and August 1, 1981, the
Master, counsel, Dr. Reimnitz, and others visited the fea-
ture and found it submerged. Id. at 228, 247.248.
After the joint survey, the feature was again observed
above and below water. On July 7, 1982, an Alaska witness
visited Dinkum Sands: By using Cross Island tidal data
and a 1981 joint project benchmark, apparently without
releveling it, he calculated the feature to be above mean
high water. Report 278. On Septe aber 19 and 29, 1982, Dr.
Reimnitz observed the feature below water. The Master
estimated that on those visits it was below mean high
water, using Alaska’s evidence on seasonal sea levels and
other assumptions favoring Alaska. Id. at 280-282.
During five visits by state witnesses from May through
July in 1983, Dinkum Sands was measured above mean
high water. See Report 278-280. The Special Master gave
special weight to the June 22 visit, because NOS had as-
sisted the State witnesses by recommending releveling of
the Cross Island benchmarks and collecting tidal data at
both Dinkum Sands and Cross Island. Id. at 278-279.
Alaska’s witness also made observations in late 1983. He
Alaska derisively refers to Dr. Reimnitz as “an Interior Depart-
ment staffer” who “erroneously claimed that the 1949 survey was off by
three feet.” Alaska Except. Br. 53. Reimnitz was not a mere “staffer,”
but was a preeminent expert on the Arctic coastal region who had
extensively studied Dinkum Sands during field work be‘ ween 1970 and
1980. Tr. 909-919. The Master found his work highly credible and
properly relied on his observations. See Report 244-248.
46
estimated that Dinkum Sands was above mean high water
on August 26 and below mean high water on September 11.
Dinkum Sands was submerged on October 12, but ice
movement had destroyed the tidal measuring rod and pre-
vented a tidal observation. Id. at 282-283.
The Master summarized the evidence on Dinkum Sands
and placed primary emphasis on actual observations from
1981 through 1983. Report 307-310. He concluded:
The preponderance of the evidence is that, in one year
of the three (1981), Dinkum Sands was consistently
below mean high water and, in two years of the three
(1981 and 1982), it was below mean high water by the
end of the open-water season.
Id. at 308-309. He also explained that the evidence showed
Dinkum Sands to exhibit a regular pattern of slumping as
the summer progresses, and thus that it may have been
below mean high water in 1979 and 1980 as well. Jd. at 309
n.66. Indeed, the evidence suggests the same for late 1983.
Id. at 282-283, 288. On the basis of all the evidence, the
Master found “that Dinkum Sands is frequently below
mean high water and therefore does not meet the standard
for an island.” Id. at 309. That recommendation is sound
and should be accepted by this Court.
C. The Master Properly Determined That Dinkum Sands
Should Not Be Treated As Alternating Between An
Island And A Non-Island Formation
Alaska has watched its position on the status of Dinkum
Sands erode over the course of the proceedings. See
Report 307 (noting that Alaska originally argued that
* The explanation for slumping is that ice in the upper part of
Dinkum Sands melts during the summer, causing “ice collapse” and
reducing the feature’s elevation by approximately 50 centimeters (1.6
feet). Report 270, 281-282.
47
Dinkum Sands is “always above high water”). In response,
Alaska now favors a compromise resolution under which
Dinkum Sands would be deemed an island when above mean
high water but not when it is below mean high water. The
parties identified the alternative in the Joint Statement
and closing arguments, but did not brief the question.
Id. at 305. The Master has appropriately recommended
against that approach. Id. at 305-307.
As the Master explained, neither party has identified a
precedent for treating as an island a feature that oscillates
above and below mean high tide. United States expert
Clive Symmons explained that “occasional islands” are not
legally recognized, stating that
in international law, there is no such phenomenon as a
“seasonal” or “occasional” island merely on the basis
of periodic appearances above mean high-tide.
U.S. Exh. 84A-602, at 67. Moreover, a notion of temporary
islands would pose the problem of sovereign enclaves, with
their own territorial seas, constantly appearing and dis-
appearing at the whim of nature. That unpredictability
would frustrate the policy of freedom of the seas and place
mariners at risk of inadvertent breaches of sovereignty.
Id. at 59; see also Report 304.
Furthermore, there is no compulsion under United
States law to accept a theory of temporary islands. As the
Master explained, “Article 10 does not demand an inter-
pretation under which islands may frequently come and
go.” Report 305. Alaska suggests (Alaska Except. Br. 55-
56) that this Court has found itself bound by the Sub-
merged Lands Act to recognize ambulatory boundaries.
See Louisiana Boundary Case, 394 U.S. at 32-34. But
since that time, Congress has recognized the value of
fixing the federal-state coastal boundary to provide great-
er certainty respecting ownership rights, and it has
48
expressly granted the Court the power to take that step.
See Outer Continental Shelf Lands Act Amendments of
1985, Pub. L. No. 99-272, Tit. VIII, § 8005, 100 Stat. 151
(1986) (amending the Submerged Lands Act, 43 U.S.C.
1301(b), to provide that a boundary between the United
States and a State may be fixed by a Supreme Court
Decree). See Report 306 n.64.
Moreover, what Alaska proposes is not the typical
“ambulatory” boundary that moves in a particular direc-
tion through a gradual process of accretion or erosion, but
rather a boundary that would oscillate suddenly and
unpredictably between two distinct locations, depending
on whether Dinkum Sands happened to be above or be-
low water. That is a novel and unhelpful concept of a
“boundary,” and not one that this Court should establish
to govern future relations between sovereigns.
Finally, as the Master pointed out, a theory of tem-
porary islands would likely lead to costly and time-
consuming monitoring efforts and continuing disputes
over the scientific methodology and results. Report 305.
This case provides a lesson in the difficulty and expense of
monitoring a capricious coastal feature in an inclement
Arctic region. Even after the parties agreed to a joint
monitoring protocol and spent 8 2.8 million for one year of
data, they continued to dispute the accuracy and signifi-
cance of the results. See id. at 248-269. Furthermore, it
is not possible to collect evidence now on the vagaries of
Dinkum Sands for lease revenues received many years
ago.
In sum, the Master properly concluded that “Dinkum
Sands should be treated as a single, continuing feature,
whose legal status will change only on the basis of a
sustained change in its characteristics.” Report 307. He
properly interpreted the definition of an island under
Article 10(1), including the history of the drafters’ dele-
49
tion of the terms “permanently” and “in normal circum-
stances,” to mean a naturally formed area of land “gener-
ally,” “normally” or “usually” surrounded by water at
mean high water. Id. at 309. He likewise correctly found
from the vast array of cartographic, monitoring, visual,
and other evidence that “Dinkum Sands is not an island
constituting part of Alaska’s coastline for purposes of
delimiting Alaska’s offshore submerged lands.” Id. at 310.
The Court should accept that recommendation.
III. THE UNITED STATES HAS RETAINED TITLE TO
SUBMERGED LANDS WITHIN THE NATIONAL
PETROLEUM RESERVE IN ALASKA
Alaska excepts to the Special Master’s determination
that, when Alaska was admitted to the Union, the United
States retained the coastal submerged lands within the
National Petroleum Reserve in Alaska. See Report 343-
446; U.S. Except. Br. 14-21 (summarizing Report). Alaska
contends, first, that Congress did not clearly intend to
retain ownership of those lands (Alaska Except. Br. 58-62),
and second, that retention of those lands through the
Alaska Statehood Act would violate the Equal Footing
Doctrine (id. at 66-71).
Alaska’s exception reflects a complete reversal of the
position that Alaska took in the initial stages of this liti-
gation. In the original Joint Statement of Questions Pre-
sented, the parties had agreed as follows:
The only question before this Court is the location of
the seaward boundary of the Reserve, which conced-
edly includes some submerged lands. It is agreed that
whatever submerged lands are within the Reservation
do not belong to Alaska, having been effectively with-
held from the grant to the State at the time of its
50
admission to the Union under both the Pollard doc-
trine and the Submerged Lands Act.
Report 346 (quoting Joint Statement 17). The Master
relieved Alaska of its concession, but he rejected Alaska’s
arguments on the merits. Report 381-445.”
A. The United States Owns Submerged Lands Within
The Boundaries Of The National Petroleum Reserve
Because It “Expressly Retained” Those Lands
The Special Master’s Report and our opening brief set
out the basic legal principles that govern the ownership of
coastal submerged lands. Report 15-18, 381-404, 455-457;
U.S. Except. Br. 5-7, 31-37. Alaska appears to dispute
those principles. In particular, Alaska does not acknowl-
edge this Court’s decisions in past submerged lands cases,
which draw a fundamental distinction between land be-
neath territorial sea and land beneath inland waters. We
accordingly review those rulings, which provide the foun-
dation for the Master's recommendations in this case.”
Alaska does not except to the Master's recommendations concern-
ing the location of the boundary of the National Petroleum Reserve,
which was the only question originally at issue. Report 380-381; see id.
at 349-380 (discussion); id. at 348, Figs. 8.1-8.3 (maps).
% The Master correctly concluded that the principles that we
articulate here apply equally to the United States’ claim to submerged
lands within the Arctic National Wildlife Refuge. See Report 456-457.
The Master rejected our claim to those lands, however, based on an
additional consideration. He concluded that the United States had not
expressly retained those lands under Section 6(e) of the Alaska State-
hood Act, even though the United States had “set apart” those lands
for a wildlife refuge, because the United States had not completed the
formal process for establishing the refuge at the time of Alaska’s
admission to the Union. We have excepted from that recommendation.
See U.S. Except. Br. 31-53.
51
1. This Court has consistently recognized that the
United States holds title under the Property Clause,
U.S. Const. Art. IV, §3, Cl. 2, to submerged lands in pre-
statehood territories. The United States has complete
and paramount constitutional power over all lands seaward
of the coastline (the line of ordinary low tide), which in-
cludes the area known as the territorial sea. See, e. g.,
United States v. California, 332 U.S. 19 (1947) (California
I). However, in a territory, the United States holds title
to inland navigable waters, including tidelands (viz., the
area between ordinary low and high tides), in trust for
future States. See, e. g., Pollard’s Lessee v. Hagan, 44 U.S.
(3 How.) 212 (1845).
The constitutional distinction between the territorial
sea and inland waters arises from both history and princi-
ples of federalism. The Court recognized that the original
thirteen States possessed title to lands beneath inland
navigable waters, see Martin v. Waddell’s Lessee, 41 U.S.
(16 Pet.) 367 (1842), and it concluded that new States,
which are admitted on an “equal footing” with the original
States, are likewise entitled to those lands. Pollard’s
Lessee, 44 U.S. (8 How.) at 228-229. But the original
thirteen States had no rightful claim to lands beneath the
territorial sea, and accordingly newly admitted States had
no “equal footing” claim to those lands. California I, 332
U.S. at 30-33. Moreover, the Court was “not persuaded to
transplant the Pollard rule of ownership as an incident of
state sovereignty in relation to inland waters out into the
soil beneath the ocean, so much more a matter of national
concern.” Id. at 36. The Court emphasized that the ra-
tionale of the Pollard case” actually supports “the con-
clusion that national interests, responsibilities, and there-
fore national rights are paramount in waters lying to the
seaward in the three - mile belt.” Ibid. See U.S. Except.
Br. 31-33.
52
2. Congress has applied those constitutional principles
in the Submerged Lands Act, which “embraced” the
Court’s holding that “paramount rights to the offshore
seabed inhere in the Federal Government as an incident
of national sovereignty.” United States v. Maine, 420
U.S. 515, 524 (1975). As a general matter, Section 3(a) of
the Act confirms the States’ rights under the Equal Foot-
ing Doctrine to submerged lands beneath inland waters. It
also grants the States title to submerged lands beneath a
three-mile belt of the territorial sea. 43 U.S.C. 1311(a).
The Act, however, includes important exceptions. Of par-
ticular relevance here, Section 5(a) of the Submerged
Lands Act withholds from the States “all lands expressly
retained by or ceded to the United States when the State
entered the Union.” 43 U.S.C. 1313(a). See U.S. Except.
Br. 34-36.
The Submerged Lands Act expresses Congress’s under-
standing that the United States may retain submerged
lands and thereby prevent them from passing to a new
State upon its admission to the Union. That under-
standing is consistent with this Court’s decisions, which
hold that the United States has paramount power over
lands beneath the territorial sea, California I, supra, and
which suggest (without deciding) that the United States
may reserve for appropriate public purposes lands beneath
inland waters, see Utah Div. of State Lands v. United
States, 482 U.S. 193, 200-202 (1987). In either instance, the
basic statutory question is the same: Has the United
States “expressly retained” the lands at issue? But as the
Special Master recognized, the courts apply different
rules of construction in determining the effect of a federal
withdrawal, depending on whether the lands are located be-
neath territorial sea or inland waters. See Report 390-394.
This Court’s decision in California I squarely holds
that the United States has paramount constitutional
power over lands beneath the territorial sea and that the
States have no rights under the Equal Footing Doctrine
to those lands. See 332 U.S. at 30-36; accord Maine, 420
U.S. at 520-522; United States v. Texas, 389 U.S. 707, 719
(1950); United States v. Louisiana, 339 U.S. 699, 704
(1950). The United States therefore has plenary power
and authority to retain or divest those lands as it sees fit.
Its determinations whether to retain or divest those lands
are judged according to the Court’s established rule of
decision that the “federal grants are to be construed
strictly in favor of the United States.” E., California ex
rel. State Lands Comm n v. United States, 457 U.S. 278,
287 (1982). The Submerged Lands Act’s grant of lands
beneath the territorial sea is an “exercise of Congress's
power to dispose of federal property,” id. at 285, and,
accordingly, if there are doubts whether the United States
has retained submerged lands beneath the territorial sea,
“they are resolved for the Government, not against it.”
E.., Watt v. Western Nuclear, Inc., 462 U.S. 36, 59 (1983).
See Report 393-394; U.S. Except. Br. 33-34, 36, 47-48.
The Court has not definitively declared that the United
States may retain submerged lands beneath inland wa-
ters, but its decisions strongly suggest—and Alaska
does not contest (see Alaska Except. Br. 56-58)—that the
United States may do so for an appropriate public purpose.
See Utah, 482 U.S. at 200-202. The Court has recognized
that Congress had the power to make pre-statehood con-
veyances of submerged lands, Shively v. Bowlby, 152 U.S.
1, 48 (1894), and it stated in Utah that “arguably there is
nothing in the Constitution to prevent the Federal Gov-
ernment from defeating a State’s title to land under navi-
gable waters by its own reservation for a particular use,”
Utah, 482 U.S. at 201. Indeed, as Justice White noted, one
should “more readily find a reservation constitutionally
permissible than a conveyance,” because reserved sub-
54
merged lands “retain their sovereign status,” and “if Con-
gress later determines that the lands are no longer needed
by the Federal Government for a public purpose, it can at
that time transfer title to the State.” Id. at 210 (White, J.,
dissenting on other grounds).”
The Property Clause of the Constitution provides that
“(t]he Congress shall have Power to dispose of and make
all needful Rules and Regulations respecting the Terri-
tory or other Property belonging to the United States.”
Art. IV, § 3, Cl. 2. As this Court pointed out in Utah,
“(t]he Property Clause grants Congress plenary power to
regulate and dispose of land within the Territories.” 482
U.S. at 201; see also Alabama v. Texas, 347 U.S. 272, 273
(1954) (“The power of Congress to dispose of any kind
of property belonging to the United States ‘is vested in
Congress without limitation.“ ) (quoting United States v.
Gratiot, 39 U.S. (14 Pet.) 526, 587 (1840)). And as the Court
further pointed out in Utah, “assuredly Congress also has
the power to acquire land in aid of other powers conferred
on it by the Constitution.” 482 U.S. at 201; Kohl v. United
States, 91 U.S. 367 (1876); U.S. Const. Art. I, § 8, Cl. 18
(Necessary and Proper Clause). Congress accordingly
can acquire oil-bearing lands for purposes of securing an
oil supply in aid of its power it jo provide and maintain a
Navy,” Art. I, § 8, Cl. 13, and its other powers to “provide
for the common Defence,” U.S. Const. Preamble; Art. I,
§ 8, Cls. 1, 11-17. It necessarily follows that Congress may
provide for the “disposition” of property belonging to the
United States in a Territory—including submerged lands
„ ~The Court did not resolve that question in Utah because it con-
cluded that the United States had failed in any event to demonstrate
adequately an intent to retain the submerged lands and defeat the
State’s title. See 482 U.S. at 209. Four Justices concluded, however,
that the United States could retain submerged lands, see id. at 209-210
(White, J., dissenting), and had done so in that case, id at 210-219.
55
that would otherwise be held in trust for a future State—
through the reservation of the property for use by the
United States Government.“
The Master carefully analyzed the rulings of this Court
and othe» courts bearing on the question, Report 395-404,
and he concluded that “a federal reservation or withdrawal
of lands beneath inland waters is constitutionally per-
missible under the equal footing doctrine to the same
extent as is a federal conveyance,” id. at 404. But the
Master also recognized that, under the rules that the
Court established in Utah for construing federal reserva-
tions and withdrawals, it is not enough for the United
States merely to show that the reservation or withdrawal
includes lands beneath inland waters. In light of Con-
gress’s established policy to retain those lands for future
States, the United States must additionally establish an
intent “to defeat the future State’s title to such land.” 482
U.S. at 202.
Against this background, the Master accordingly con-
cluded that the Court’s decisions in California I and Utah
mandate the use of different rules of construction,
depending on whether the land lies beneath territorial sea
or inland waters, in determining whether the United
States has “expressly retained” coastal submerged lands
for purposes of the Submerged Lands Act. Report 394.
Much of the submerged land at issue in the National
Petroleum Reserve lies beneath the territorial sea. The
Master nevertheless conducted his analysis under the
more stringent “inland waters principles,” concluding
Even after a State is admitted to the Union, the United States
may acquire property of the State, either by purchase or by the exer-
cise of the power of eminent domain. See Block v. North Dakota, 461
U.S. 278, 291 (1983); see also United States v. 50 Acres of Land, 469
US, 24, 31 & n.15 (1984).
56
that, if the United States established its rights under
those principles, it would “certainly meet the less de
manding standard” for lands beneath the territorial sea.
Ibid.
3. As we explain below, the Master correctly concluded
that the United States has satisfied the more stringent
“inland waters principles” for all submerged lands within
the National Petroleum Reserve, and he therefore did not
need to conduct a separate evaluation for lands beneath
the territorial sea. See Report 394, 445. The relevance
of the “less demanding standard” for lands beneath the
territorial sea should be kept in mind, however, when
analyzing Alaska’s exception. Alaska objects to the Mas-
ter’s recommendation based on its understanding of the
Equal Footing Doctrine. But as this Court’s decision in
California I holds, that doctrine applies only to land be-
neath inland navigable waters. 332 U.S. at 31-36.”
Alaska’s exception accordingly is inapposite to the lands
beneath the territorial sea, where the United States’
rights are paramount. The United States unambiguously
reserved those submerged lands—and thereby “expressly
retained” them for purposes of Section 5(a) of the Sub-
merged Lands Act—by including them within the seaward
houndary of the National Petroleum Reserve. There is no
need to look further than the specification of that
boundary to resolve the ownership of the disputed lands
beneath the territorial sea. See Report 344-346; id. at 348,
Figs. 8.1-8.3. The only lands that are truly at issue under
Alaska suggests that the Submerged Lands Act requires this
Court to apply the Equal Footing Doctrine to the territorial sea.
Alaska Except. Br. 57 n.34. As the Master noted, this Court has
rejected that argument. Report 392-394 (quoting, e... Maine, 420 US.
at 524); see, e.g., California ex rel. State Lands Comm'n, 457 U.S. at
285-287; Oregon ex rel. State Land Board v. Corvallis Sand & Gravel
Co., 429 U.S. 363, 370-374 & n.4 (1977).
57
Aiaska’s exception are tidelands and other lands beneath
coastal inland waters, which comprise only a portion of the
coastal submerged lands that Alaska has claimed in the
National Petroleum Reserve. See id. at 394. With that
understanding, we turn to Alaska’s specific objections.
B. Contrary To Alaska’s Assertions, Congress Intended
To Reserve The Submerged Lands And Defeat
Alaska’s Claim To Title
Alaska raises three objections to the Master’s deter-
mination that the United States retained title to the
submerged lands within the National Petroleum Reserve.
Alaska contends that: (1) the Pickett Act did not author-
ize the federal reservation of submerged lands (Alaska
Except. Br. 58-60); (2) there was no “public exigency” jus-
tifying inclusion of submerged lands (id. at 61-62); and (3)
there is no “affirmative evidence” that Congress intended
to defeat Alaska’s title (id. at 62-66). Those objections are
without merit.
1. The United States created the National Petroleum
Reserve in Alaska through Executive Order No. 3797-A
(1923). See Report 343-345 & n.1. That order described
the boundary line of the Reserve (which was then known
as Naval Petroleum Reserve No. 4) as following the Arctic
Ocean’s coastline along “the ocean side of the sandspits
and islands forming the barrier reefs and extending across
small lagoons from point to point, where such barrier reefs
are not over three miles off shore.” Id. at 345. Accord-
ingly, as Alaska had originally conceded, that order explic-
itly withdrew and reserved lands beneath offshore naviga-
ble waters within the specified boundaries. See id. at 345-
346. Alaska now argues, however, that the President
lacked authority to include submerged lands within the
Reserve. As the Special Master correctly concluded, the
Act of June 25, 1910, ch. 421, 36 Stat. 847, which is known
— — ee —
58
as the Pickett Act, authorized that withdrawal. See
Report 404-416.“
Alaska is mistaken at the outset in its assertion that
the Alaska Right-of-Way Act of May 14, 1898, ch. 299, 30
Stat. 409, precluded the President from withdrawing sub-
merged lands. That Act, which is set out in the Master’s
Report at page 411, authorized railroads to construct
facilities “for connection with water transportation,” but
provided that “nothing in this Act” shall impair a future
State’s title to tidelands and beds of navigable rivers,
which “shall continue to be held by the United States
in trust” for the people of any State or States that
might thereafter be erected in the District of Alaska. § 2,
30 Stat. 409. The Right-of-Way Act does not have the force
that Alaska ascribes to it. As the Master noted, the
Alaska Right-of-Way Act could not limit the scope of the
Pickett Act, because “an earlier Congress cannot bind a
later one.” Report 411. Furthermore, there is no conflict
between the Pickett Act and the Right-of-Way Act.“
® The Pickett Act, which has since been repealed, stated in rele-
vant part:
That the President may, at any time in his discretion, temporarily
withdraw from settlement, location, sale, or entry any of the
public lands of the United States including the District of Alaska
and reserve the same for water-power sites, irrigation, classifica-
tion of lands, or other public purposes to be specified in the orders
of withdrawals, and such withdrawals or reservations shall re-
main in force until revoked by him or by an Act of Congress.
§ 1, 36 Stat. 847, repealed by the Federal Land Policy and Management
Act of 1976, Pub. L. No. 94-579, § 704(a), 90 Stat. 2792.
41 The Alaska Right-of-Way Act recognized the existence of the
Equal Footing Doctrine and prevented that Act from conveying land
beneath inland waters to the railroads. But as noted above, the Equal
Footing Doctrine embraces the principle that the United States may
convey or reserve submerged lands for appropriate public purposes.
59
Alaska also argues (Alaska Except. Br. 59) that the
Pickett Act did not grant the President authority to with-
draw lands beneath navigable waters because it allowed
him to withdraw “public lands,” which—according to
Alaska—necessarily excludes submerged lands. The
Master carefully considered and rejected that argument.
See Report 407-414. As he pointed out, this Court, in the
specific context of Alaska, has rejectled] the assertion
that the phrase ‘public lands,’ in and of itself, has a precise
meaning, without reference to a definitional section or its
context in a statute.” Amoco Production Co. v. Village of
Gambell, 480 U.S. 531, 548 n.15 (1987) (citing Hynes v.
Grimes Packing Co., 337 U.S. 86, 115-116 (1949)). See
Report 409.
Hence, Congress’s mere recognition of the Equal Footing Doctrine in
the Right-of-Way Act did not conflict with the Pickett Act’s grant of
authority to reserve those lands. Furthermore, there is nothing incon-
sistent in Congress’s decision to withhold submerged lands from pri-
vate railroad companies, but later to allow the federal government to
withdraw such lands for appropriate public purposes. See also Report
414-416 (reconciling the Pickett Act with the Alaska Right-of-Way
Act); ef. Wisconsin v. Baker, 698 F.2d 1323, 1334 (7th Cir.) (recognizing
that “the people * * * have a compelling interest in seeing that
powers reposed in their government are not surrendered to private,
non-representative groups”), cert. denied, 463 U.S. 1207 (1983).
© Alaska derives its definition of “public lands” (Alaska Except.
Br. 59 & n.36) from statements, taken out of context, in two cases
involving private land disputes. See Borax Consolidated, Ltd. v. City
of Los Angeles, 296 U.S. 10, 17 (1935); Mann v. Tucoma Land Co., 153
U.S. 273, 284 (1894). Those cases recognize the familiar rule that, when
Congress enacts general land laws opening up “public lands” to private
entry and settlement, it generally does not allow private parties to lay
claims to submerged lands. See Shively, 152 U.S. at 48 (Congress may
convey submerged lands, but has “never undertaken by general laws to
dispose of such lands.”); Utah, 482 U.S. at 203-204. Those cases shed no
light on the meaning of the term “public lands” in the context pre-
sented here, where Congress has authorized the President to withdraw
2 — — 0
60
The Pickett Act does not define the term “public lands.“
The Master therefore examined the context provided by
the Act, and he concluded that Congress intended the
term to include submerged lands. He noted at the outset
that it is unlikely that Congress employed the term
“public lands” in the limited sense that Alaska urges. The
Pickett Act categorically reached “any of the public lands
of the United States including the District of Alaska,”
which indicated that the President’s power extended to all
government-owned lands within the District. § 1, 36 Stat.
847. As the Master noted, the concept of “public lands” in
Alaska has never been limited to uplands. Report 408-409.
See, e.g., United States v. Alaska, 423 F.2d 764, 766 (9th
Cir.) (“In construing the pertinent Alaskan statutes, the
courts have consistently held that the words ‘public do-
main’, ‘public lands’ and ‘land’, include land under water.”),
cert. denied, 400 U.S. 967 (1970).® Indeed, at the time that
Congress enacted the Pickett Act, it had already begun to
open submerged lands to entry under the mining laws.
and reserve specific tracts of land for public purposes. Indeed, in that
context, this Court itself has described lands beneath inland navigable
waters as “public lands.” Choctaw Nation v. Oklahoma, 397 US.
620, 633 (1970) (“the United States can dispose of lands underlying
navigable waters just as it can dispose of other public lands” (emphasis
added)). See Utah, 482 U.S. at 212 n.4 (White, J., dissenting).
As the Master explained, this Court expressly recognized that
point in Hynes, supra. See Report 409 n.51. In that case, Congress
authorized the Secretary of the Interior to create an Indian reservation
from “public lands which are actually occupied by Indians or Eskimos.”
Act of May 1, 1986, ch. 254, § 2, 49 Stat. 1250. The Court upheld the
Secretary’s designation of an upland area “and the waters adjacent
thereto extending 3,000 feet from the shore line at mean low tide,”
Public Land Order 128, 8 Fed. Reg. 8557 (1943). See Hynes, 337 U.S. at
116; see also Alaska Pacific Fisheries v. United States, 248 U.S. 78
(1918) (discussed at Report 399-400); cf. Amoco Production Co., 480 US.
at 546-548.
61
Report 408 & n.49. The Master correctly recognized that
it is unlikely that Congress meant to limit the reach of the
Pickett Act to uplands within the District of Alaska, and
thereby prevent federal withdrawals of submerged lands
for public purposes, when at the same time Congress was
opening those lands to private appropriation. See ibid.“
Furthermore, Congress’s objectives in enacting the
Pickett Act demonstrate that Congress intended to allow
the President to reserve submerged lands. See Report
410-414. Congress adopted the Pickett Act to protect
public interests that extended beyond uplands and that
could not be readily protected by anything short of fee
ownership. As the Master explained, Congress developed
the legislation specifically out of concern that the
President needed authority in the interest of national se-
curity to withdraw land containing oil deposits. Id. at 411-
“ Contrary to Alaska’s suggestion (Alaska Except. Br. 59), the
situation presented here is starkly different from that in Utah. In that
case, the Court concluded that a provision of the Sundry Appropriations
Act of 1888, ch. 1069, 25 Stat. 526-527 (which appropriated funds for
surveying arid lands, and reserved from sale, entry, settlement or
occupation “lands which may hereafter be designated or selected by
such United States surveys” for reservoir sites), “did not necessarily
refer to lands under navigable waters,” because those lands “were
already exempt from sale, entry, settlement or occupation under the
general land laws.” Utah, 482 U.S. at 198-199, 208. As noted above,
that was not true here. Furthermore, Alaska’s observation (Alaska
Except. Br. 60) that the Pickett Act continued to allow mining entry
misses the Master's point: Federal reservations are less intrusive on
State equal footing interests than federal conveyances, and therefore it
would have been anomalous for Congress to forbid the President from
reserving submerged lands, revocably and for public purposes, when it
was, at the same time, authorizing private parties to appropriate those
lands permanently for private use.
414.“ The Pickett Act’s objective of preserving federal
ownership of petroleum resources, which exist in sub-
surface formations that extend indiscriminately beneath
uplands and submerged lands, would have been severely
hampered if the United States could reserve only the
upland portions of oil-bearing lands. That problem would
have been particularly acute in regions like the National
Petroleum Reserve, which contain extensive areas of
inland waters. See id. at 348, Figs. 81-83. In those
regions, reservation of on'y the uplands would deny the
federal government an incalculable amount of the very oil
deposits it sought to reserve, and would generate extraor-
dinarily complex disputes concerning ownership, division,
and drainage of the subsurface oil deposits. See id. at 427
The Pickett Act originated out of a continuing controversy over
whether the President could withdraw lands to create petroleum
reserves for the Navy. See United States v. Midwest Oil Co., 236 US.
459, 466-469 (1915) (describing the controversy). As a result of that
controversy, the President sought express authority from Congress
to make withdrawals for petroleum reserves and other purposes. 45
Cong. Rec. 621, 622 (1910) (Letter from President Taft). Congress held
hearings in which it received testimony on the President's need to
set aside oil-bearing lands while protecting existing private claims.
Oil-land Withdrawals and the Protection of Locators of Oil Lands:
Hearings on H.R. 24070 Before the House Comm. on the Public Lands,
61st Cong., 2d. Sess. (1910). Congress ultimately enacted the Pickett
Act, which provided that withdrawn lands shall not be open to “explo-
ration, discovery, occupation and purchase” for purposes of locating oil.
§ 2, 36 Stat. 847. See generally Robert W. Swenson, Legal Aspects of
Mineral Resources Exploitation, in Paul W. Gates, History of Public
Land i.-w Development 731-745 (1968); S. Doc. No. 187, 78th Cong., 2d
Sess. (1:44) (History of the Naval Petroleum Reserves); Max W. Ball,
Petroleum Withdrawals and Restorations Affecting the Public Domain
(U.S. Geological Survey Bull. 623) (1916).
& n.68; see generally Railroad Comm'n v. Rowan &
Nichols Oil Co., 310 U.S. 573, 579-580 (1940).*
The Master thoroughly examined the matter, and he
correctly concluded that the term “public lands,” as used
in the Pickett Act, includes submerged lands. The
Master’s conclusion is buttressed by the fact that the
President, who was charged with administering the stat-
ute through the withdrawal of specific tracts, contempora-
neously construed the term to include submerged lands.
Moreover, as we explain below (see pages 66-72, infra),
in this respect as well, the situation presented here is distin-
guishable from that in Utah, where Congress had enacted legislation
reserving reservoir sites out of concerns, unrelated to submerged lands,
that those sites would become unavailable on account of settlement,
land speculation, and monopolization. See 482 U.S. at 208. In that
situation, Congress did not need to reserve associated submerged lands,
because the government’s interests in those lands could be accommo-
dated through its navigational servitude, see United States v. Cherokee
Nation, 480 U.S. 700, 706-707 (1987), or through specific conditions
on the construction of federal projects, see Silas Mason Co. v. Tax
Comm'n , 302 U.S. 186, 199-208 (1937). No similar avenues were avail-
able here to protect the government's interest in oil reserves in the
submerged lands themselves.
Furthermore, the Pickett Act is unlike the legislation involved in
Utah, because it did not result in a broad and general reservation of all
lands of a particular character and their subsequent availability for
settlement under the homestead laws, 482 U.S. at 199, 203-204, “but
rather for withdrawals or reservations in particular cases” for pub-
lie purposes. Report 413-414. Hence, this case does not present the
“inconceivable” situation, posed in Utah, that, if Congress included
submerged lands within the statute’s coverage, it had effected a whole-
sale abandonment of the policy against permitting the sale or settle.
ment of land underlying navigable waters under the general land laws
and instead preserving submerged lands for future States. 482 U.S.
at 204. The Pickett Act gave the President discretion to determine
“{w)hether there is need in any particular case to include lands under
navigable waters,” and those judgments would then be subject to con-
gressional review. See Report 414.
64
Congress subsequently ratified the President’s construc-
tion in the Alaska Statehood Act, which recognized that
the United States owns the lands within the boundaries of
the National Petroleum Reserve.
2. Alaska asserts (Alaska Except. Br. 61-62) that there
was no “public exigency” requiring the President to
include submerged lands within the National Petroleum
Reserve. As this Court explained in Utah, however, the
term “public exigency” describes the “congressional
policy” that the Court has “inferred”—“not a constitu-
tional obligation“ with respect to the grantling! away”
of land under navigable waters. 482 U.S. at 197. The
Court has repeatedly recognized that the United States
possesses power under the Constitution to dispose of
submerged lands in pre-statehood territories
in order to perform international obligations, or to
effect the improvement of such lands for the promotion
and convenience of commerce with foreign nations and
among the several States, or to carry out other public
purposes appropriate to the objects for which the
United States hold the Territory.
Id. at 196-197 (quoting Shively, 152 U.S. at 48); Montana
v. United States, 450 U.S. 544, 551 (1981) (accord). In order
to satisfy the Constitution, then, the United States need
show no more than that the reservation or other dispo-
sition of the submerged lands fulfulls a “public purpose{]}
appropriate to the objects for which the United States
hold the Territory.” Cf. Brewer-Elliott Oil & Gas Co. v.
United States, 260 U.S. 77, 85-86 (1922) (leaving open
whether the United States must satisfy even that test).
The term “public exigency” is, at most, only a guide to
assist a court in determining whether submerged land has
been granted away in a particular instance. Where, as
here, the circumstances make clear that submerged lands
are included within a Reserve and were withheld from the
State, the “public exigency” formulation is not an inde-
wiper judicially enforceable barrier to accomplishing
In any event, Alaska is mistaken in suggesting the
extreme view (Alaska Except. Br. 61-62) that this Court’s
use of the term “public exigency” in Utah, 482 U.S. at 197-
198, denotes a dire national emergency. The Master cor-
rectly concluded that a “public exigency” exists if there is
an important public need justifying the conveyance or
reservation. See Report 417-419.”
The Master was also correct in his conclusion that the
Nation’s need for the National Petroleum Reserve mani-
festly qualifies as a “public exigency.” See Report 423-
430. As he explained, the National Petroleum Reserve was
explicitly created at the close of World War I to provide a
“future supply of oil for the Navy,” which “is at all times
a matter of national concern.” See id. at 424 (quoting
Executive Order No. 3797-A). Congress itself expressly
approved of the creation of such Reserves, noting the
Nation’s need “to maintain in the ground a great re-
serve supply of oil adequate to the needs of the Navy in
any emergency threatening the national security.” See
id. at 425 (quoting S. J. Res. 54, 68th Cong., Ist Sess., 43
Stat. 5, 6 (1924)). See also Report 426-427 (noting the
Reserve's additional purpose to “promote development” in
Alaska).
Alaska is mistaken in its contention (Alaska Except. Br.
62) that there was no need to reserve submerged lands for
that purpose. The United States was aware that there
4 See, ¢.g., Montana, 450 U.S. at 556 (suggesting that the United
States might retain submerged lands for an Indian Tribe if fishing
were “important to [the Tribe's} diet or way of life”); accord Hynes, 337
U.S. at 116; Alaska Pacific Fisheries 248 U.S. at 87.
were “large seepages of petroleum along the Arctic Coast
of Alaska and conditions favorable to the occurrence of
valuable petroleum fields on the Arctic Coast,” Report 424
(quoting Executive Order No. 3797-A), but the exact loca-
tions of those fields were unknown. The United States
needed to control both the uplands and the submerged
lands within the National Petroleum Reserve’s boundaries
to avoid conflicting claims to, and drainage of, the antici-
pated, but then unidentified, underground deposits. Id. at
427-428. The United States clearly intended to include,
and did include, all of the oil bearing lands within the
boundaries of the Reserve. Id. at 428-429.
3. Alaska also argues that “the Alaska Statehood Act
is not ‘affirmative’ evidence that Congress intended to
defeat Alaska’s title.” Alaska Except. Br. 62-66. That con-
tention misconceives the Court’s Utah decision and the
relevant provisions of the Alaska Statehood Act, Pub. L.
No. 85-508, 72 Stat. 339 (1958). The Master properly ap-
plied Utah to the circumstances presented here and con-
cluded that Congress unambiguously expressed its inten-
tion, through Section 11(b) of the Alaska Statehood Act, to
defeat the State’s title to the submerged lands. Report
430-440.
In Utah, the Court assumed arguendo that Congress
could reserve submerged lands beneath inland waters for
an appropriate federal purpose, but it concluded that the
mere fact that Congress had included such lands within
the boundaries of a federal reservation did not, by itself,
manifest an intention to retain those lands. 482 U.S. at
202. It reasoned that, when Congress conveys submerged
land to a private party, “of necessity it must also intend to
defeat the future State’s claim to the land,” but when
submerged lands are included within a reservation, that
action is not necessarily meant to deprive a future State of
title to the lands. /bid. Therefore, a court must determine
67
whether there was an intent “to defeat the future State’s
title to such land.” Ibid. That is what the Master did in
this case.
When Congress drafted the Alaska Statehood Act, it
gave specific attention to the President’s establishment
of the National Petroleum Reserve. The President,
the “constitutional officer” in whom Congress vested
the authority to make withdrawals and reservations to
serve paramount public purposes, compare Franklin v.
Massachusetts, 505 U.S. 788, 799-800 (1992), had delib-
erately drawn the boundaries of the National Petroleum
Reserve to include submerged lands along the Arctic
Coast. See Report 421. The location of the boundary was
not mere happenstance. It was based on the President’s
specific determination that “there are large seepages of
petroleum along the Arctic Coast of Alaska and conditions
favorable to the occurrence of valuable petroleum fields on
the Arctic Coast” that should be retained for the Navy’s
use. Id. at 424 (quoting Executive Order No. 3797-A). The
Executive Order’s designation of the boundary to include
coastal submerged lands clearly manifested the federal
government’s intention to defeat a future State’s title to
those lands. The transfer of those lands to the State—and
the consequent loss of ownership rights to the oil deposits
therein—would have thwarted the very purpose of includ-
ing those lands within the Reserve. As the Master suc-
einetly put it, i the drafters had not intended to reserve
the resources in submerged lands, there would have been
no point in their drawing the boundary to include them.”
Id. at 422.
Congress was placed on notice by the terms of the
Executive Order that the President had determined the
need to include the submerged lands as part of the
National Petroleum Reserve. See Pickett Act, §3, 36
Stat. 848 (requiring the Secretary of the Interior to notify
ee — -
68
Congress of withdrawals).” Congress had the power to re-
vise that determination, see § 1, 36 Stat. 847, but did not
do so. To the contrary, Congress ratified the President’s
establishment of the Reserve through the Alaska State-
hood Act, which, in Section 5(a), retains federal ownership
of the Reserve, including the submerged lands therein.
See U.S. Except. Br. 37-38.
As the Master explained, Congress acknowledged and
ratified the President’s retention of the National Petro-
leum Reserve in Section 11(b) of the Alaska Statehood Act,
which states:
Notwithstanding the admission of the State of
Alaska into the Union, authority is reserved in the
United States, subject to the proviso hereinafter set
forth, for the exercise by the Congress of the United
States of the power of exclusive legislation, as
provided by article I, section 8, clause 17, of the
Constitution of the United States, in all cases
whatsoever over such tracts or parcels of land as,
immediately prior to the admission of said State, are
owned by the United States and held for military,
naval, Air Force, or Coast Guard purposes, including
naval petroleum reserve numbered 4 [the National
Petroleum Reserve], whether such lands were ac-
As the Master explained, there is a rich legislative history
confirming Congress’s awareness that the Executive Order retained
not only the offshore lagoons, but also the lakes and rivers, within the
Reserve. See Report 434-440.
As we explain in our opening brief, the Alaska Statehood Act
accomplishes that result through Sections 5 and 6(m), 72 Stat. 340, 343.
Section 5 provides that the United States “shall retain title to all
property, real and personal, to which it has title,” except as provided
in Section 6; and Section 6(m) incorporates the Submerged Lands Act,
including its reservation of submerged lands “expressly retained” by
the United States, 43 U.S.C. 1313(a). See U.S. Except. Br. 37-38.
quired by cession and transfer to the United States by
Russia and set aside by Act of Congress or by Execu-
tive order.
72 Stat. 347 (emphasis added). As the plain text of Sec-
tion 11(b) provides, Congress by law affirmed that the
United States had “acquired,” and therefore “owned,” the
parcell] of land” that is now known as the National
Petroleum Reserve. Ibid. But Congress not only recog-
nized that the United States retained title to those lands,
it further stated that, “[njotwithstanding the admission of
the State of Alaska into the Union,” it would reserve the
power of “exclusive legislation” over them. Ibid.”
Alaska objects that Section 11(b) “does not address title
at all,” but is concerned merely with Congress’s retention
of exclusive legislative jurisdiction under the Enclave
Clause, U.S. Const. Art. I, §8, Cl. 17. See Alaska Except.
Br. 63-64. Alaska misapprehends the significance of
Congress’s reservation of that power. When the United
States specifically exercises its power of “exclusive legis-
lation” under the Enclave Clause, it necessarily acquires
title to the property. See, e. g., Collins v. Yosemite Park
& Curry Co., 304 U.S. 518, 527 (1938); James v. Dravo
Contracting Co., 302 U.S. 134, 141-142 (1937)." Hence,
® Section 11(b) also contains two provisos that qualify the reserva-
tion of exclusive jurisdiction. See § 11(b)ii) and (iii), 72 Stat. 347.
Alaska no longer argues that those provisos are relevant to the ques-
tion presented here. See Alaska Except. Br. 62-66; compare Report
433.
5! The Enclave Clause authorizes the exercise of “exclusive legisla-
tion” over “all Places purchased by the Consent of the Legislature of
the State in which the Same shall be.” U.S. Const. Art. I, §8, Cl. 17.
This Court has recognized, however, that the United States may
acquire land by means other than purchase. See Collins, 304 U.S. at
527 (“other lands composing the Park had been in the proprietorship of
the national government since cession by Mexico”).
70
Congress’s explicit assertion, pursuant to the Enclave
Clause, of the power of “exclusive legislation” over the
National Petroleum Reserve clearly demonstrates Con-
gress’s affirmative intention that the United States—
rather than Alaska—owned and retained all of the lands
therein. See Silas Mason Co. v. Tax Comm’n, 302 U.S.
186, 208 (1937) (“federal intent * * * is shown not merely
by the action of administrative officials, but by the deliber-
ate and ratifying action of Congress“).
Congress’s reservation of its power of “exclusive leg-
islation” over those oil-bearing lands leaves no doubt that
Alaska cites as contrary authority a district court’s recent inter-
locutory order involving Public Land Order (PLO) 82, 8 Fed. Reg.
1599 (1943), which set aside lands in northern Alaska to preserve
minerals for military use. Alaska Except. Br. 64-65. See Alaska v.
United States, No. A87-0450-CV (HRH) (D. Alaska Mar. 29, 1996)
(reproduced in Alaska Except. Br. App. B). The issue in that. litigation
is whether PLO 82 expressly retained the beds of rivers and other
inland waters therein. The district court held that the Secretary of the
Interior intended PLO & to retain those submerged lands in federal
ownership. Alaska Except. Br. App. B at 42. The court concluded,
however, that Section 11(b) of the Alaska Statehood Act did not mani-
fest Congress’s intention to defeat the State’s title, because Section
11(b) makels] no reference to lands beneath navigable waters in PLO
.“ Id. at 54. That court, which did not have the benefit of the
Master’s ruling in this case, misunderstood the significance of Section
IIc. As we have explained above, if Congress elects to exercise
exclusive legislation pursuant to the Enclave Clause over a federal
reservation, then Congress has clearly manifested its intention to
retain ownership of the lands in the reservation. That conclusion takes
or particular force in the case of the National Petroleum Reserve
because, as we explain in the text, infra, Congress not only manifested
its intention to retain ownership of the Reserve, but it did so with the
understanding that it would own the submerged lands within its
boundaries. The United States has made a similar submission, but on a
different factual basis, in the PLO 8&2 litigation. The district court's
erroneous understanding of Section 11(b), however, prevented it from
reaching that issue.
71
Congress intended to defeat the State’s title to all lands
within the boundaries of the National Petroleum Reserve,
including the submerged lands. As the Master pointed out,
“{njothing in section 11(b) suggests that different juris-
dictional patterns were to apply within the Reserve,
depending on whether the lands were upland or sub-
merged.” Report 434. Congress understood from the Ex-
ecutive Order that the United States had an extraordinary
interest in the Reserve because it contained oil deposits
set aside for national security purposes. The President
described in his Executive Order the potential oil fields
along the Arctic coast, and he drew the boundaries of the
Reserve accordingly. It would have made no sense for
Congress, which expressly acknowledged the “Executive
order” in the text of Section 11(b) of the Alaska Statehood
Act, to ratify the President’s withdrawal and extend its
power of exclusive legislation over the Reserve, but not to
retain ownership of the valuable submerged lands that the
Executive Order explicitly included within it.“
As this Court’s Utah decision recognizes, the issue
whether Congress has retained submerged lands is
ultimately one of congressional intent. See 482 U.S. at
202. The Master correctly concluded that Congress un-
ambiguously stated its intentions through the Alaska
Statehood Act. This is not a case in which Congress
created a pre-statehood federal reservation, but did not
That conclusion is bolstered by Congress's contemporaneous
enactment of other legislation governing oil and gas leasing of Alaska
submerged nds, which was fashioned to exclude leasing within the
National Petroleum Reserve. See Report 434-438 (discussing Ac: of
July 3, 1958, Pub. L. No. 85-605, 72 Stat. 322, and Act of Sept. 7, 1957,
Pub. L. No. 85-303, 71 Stat. 623). As the Master explained, those Acts
were premised on the assumption that “submerged lands in the Re-
serve would remain the property of the United States.” Report 436;
see id. at 438.
72
need title to submerged lands, and therefore presumptive-
ly intended that the State would receive title to those
lands upon admission to the Union. See ibid. Rather, the
President and Congress recognized an overriding need to
retain oil-bearing lands within the National Petroleum
Reserve—including its submerged lands—in federal own-
ership for purposes of national security. The Master cor-
rectly concluded that Congress affirmatively intended “to
defeat Alaska’s title to those lands.” Report 440.
C. The United States’ Retention Of Submerged Lands
Through A Statehood Act Does Not Violate The
Equal Footing Doctrine
Alaska asserts that the Equal Footing Doctrine pro-
hibits the United States’ retention of submerged lands in a
statehood act (Alaska Except. Br. 66-70) and, alternatively,
that any federal retention of submerged lands should be
limited to those rights “absolutely necessary rather than
fee title” (id. at 70-71). Those arguments do not require
extended discussion.
1. Alaska’s assertion that Congress cannot retain sub-
merged lands through a statehood act is both counter-
intuitive and wrong. Alaska does not contest the principle
that the United States may retain submerged lands be-
neath navigable waters for appropriate public purposes.
See pages 53-54 & note 37, supra. If Congress has the
power under the Equal Footing Doctrine to retain those
lands, then it can exercise that power through legislation
of its choice. A statehood act, which specifies the bounda-
ries and landholdings of anew State, see Alaska Statehood
Act, supra, is a logical place for Congress to set forth
whether and to what extent submerged lands are reserved
for public purposes. The retention of such lands is not
an unlawful condition upon the State’s admission to the
Union, because the State has no right to submerged lands
73
that Congress has deemed it necessary to retain for an
appropriate public purpose. Compare Coyle v. Smith, 221
U.S. 559, 565, 574 (1911) (Congress cannot dictate the loca-
tion of a State’s capital in a statehood act, because it has
“no power” to make that choice, which rests entirely with
the State).
2. Alaska’s asks this Court to second guess Congress’s
judgment as to whether the national interest requires the
United States to retain full fee title to the submerged
lands within the National Petroleum Reserve. -The ques-
tion whether the United States should retain full title, or
some lesser aliquot, is a matter committed to Congress’s
discretion under the Property Clause. As this Court has
repeatedly emphasized, “determinations under the Prop-
erty Clause are entrusted primarily to the judgment of
Congress.“ Kleppe v. New Mexico, 426 U.S. 529, 536
(1976). In this case, Congress expressed the intention to
retain all of the lands within the National Petroleum
Reserve. See Report 440-445. Congress can change its
ownership interest if it finds a need to do so. As the enact-
ment of the Submerged Lands Act demonstrates, Con-
gress has been attentive to state interests in coastal
resources, and there is no reason to expect that Congress
“will execute its powers in such way as to bring about
injustices to states, their subdivisions, or persons acting
pursuant to their permission.” California I, 332 U.S. at
40.
74
CONCLUSION
The exceptions of the State of Alaska should be
overruled.
Respectfully submitted.
WALTER DELLINGER
Acting Solicitor General
Lois J. SCHIFFER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
MICHAEL W. REED
CHARLES W. FINDLAY, III
Attorneys
OCTOBER 1996
Figure |. Photograph of Dinkum Sands, July 25, 1979
(U.S. Exh. 84A-507a). See Report 247
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.