Amicus Curiae Brief — Cuban American Bar Ass'n v. Christopher

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

UNITES STATES OF AMERICA, Plaintiff,

Vv.

STATE OF ALASKA

ON REPORT OF THE SPECIAL MASTER

BRIEF OF THE STATES OF ALABAMA, ARIZONA,

CALIFORNIA, DELAWARE, HAWAII, IDAHO, LOUISIANA,

MISSISSIPPI, MONTANA, NEVADA, NORTH CAROLINA,

NORTH DAKOTA, UTAH, VERMONT, VIRGINIA AND THE

VIRGIN ISLANDS AS AMICI CURIAE IN SUPPORT OF THE

STATE OF ALASKA

DANIEL E. LUNGREN

Attorney General

RODERICK E. WALSTON

Chief Assistant Attorney General

JAN S. STEVENS

Assistant Attorney General

Counsel of Record

1300 I St., Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 327-7853

Counsel for Amicus

State of California

wr

JEFF SESSIONS

Attorney General of the

State of Alabama

GRANT WOODS

Attorney General of the

State of Arizona

JANE BRADY

Attorney General of the

State of Delaware

MARGERY S. BRONSTER

Attorney General of the

State of Hawaii

ALAN G. LANCE

Attorney General of the

State of Idaho

RICHARD P. IEYOUB

Attorney Generai of the

State of Louisiana

MIKE MOORE

Attorney General of the

State of Mississippi

JOSEPH P. MAZUREK

Attorney General of the

State of Montana

FRANKIE SUE DEL PAPA

Attorney General of the

State of Nevada

MICHAEL F. EASLEY

Attorney General of the

State of North Carolina

HEIDI HEITKAMP

Attorney General of the

State of North Dakota

JAN GRAHAM

Attorney General of the

State of Utah

JEFFREY L. AMESTOY

Attorney General of the

State of Vermont

JAMES S. GILMORE III

Attorney General of the

State of Virginia

JULIO A. BRADY

Attorney General of the

Territory of the United States

Virgin Islands

Page

INTRODUCTION AND INTEREST OF AMICUS

CURIAE

ee nea eae eee eee ée& ee € 8 SC

THE STRONG PRESUMPT*ON AGAINST

DIVESTITURE OF A STATE'S

ENTITLEMENT TO ITS

NAVIGABLE

WATERS EXTENDS TO SUBMERGED

LANDS AS WELL AS “INLAND

NAVIGABLE WATERS"

A.

C.

The Equal Footing Doctrine

Historically Has Applied To All A

State's Navigable Waters........

States' Lands Beneath Navigable

Waters May Be Conveyed Or

Reserved Only Under Limited

Circumstances Not Demonstrated

The Submerged Lands Act Restores

States' Equal Footing Rights To

Submerged Lands Within Their

CE

TABLE OF CONTENTS

Il. ONLY CONGRESS CAN DEFEAT THE

STATES' PRESUMPTIVE RIGHT TO

iii

TABLE OF AUTHORITIES

Page

Cases

Martin v. Waddell, 4\ U.S. (16 Pet.) 367 (1842) ........ 6

Montana v. United States, 450 U.S. 544 (1981)... .... 6,7

Pollard's Lessee v. Hagan, 44 U.S. (3 How.)

EE one ee cig nnedheéheeceeed 4,5, 6,9

Shively v. Bowlby, 152 U.S. 1 (1894) .............. 5, 6

Sioux Tribe v. United States, 316 U.S. 317 (1941)... ... 10

United States v. Oregon, 295 U.S. 1 (1935) ......... 5, 10

United States v. California, 332 U.S. 19 (1946) ........ 6

United States v. California, 436 U.S. 32 (1977) ...... 8,9

United States v. Holt State Bank, 270 U.S. 49

Ne xed Coie Eek ts RED emer bec cccces. 7

United States v. Louisiana, 363 U.S. 1 (1960) ........ 6,8

United States v. Midwest Oil Co., 236 U.S. 459

GD ou cct ceviub ai edaeénaase hatiets tousenes 10

Utah Div. of State Lands v. United States,

Ft ig ale 7

iv

TABLE OF AUTHORITIES

Statutes

Submerged Lands Act, Ch. 65, 67 Stat. 29 (1953) (codified as

amended at 43 U.S.C. §§ 1301 ef seg. (1988)).......... l

Pleadings, Briefs and Arguments

United States v. California, 332 U.S. 19 (1946)

Brief for the United States in Support of Motion for

Judgment (No. 12, Original) (October Term, 1946)

CSE, DE c coscocvacet seteateree vs date 2

Other Authorities

Northwest Ordinance of 1787 ................05455. l

L. Caplan, The Tenth Justice, (1987) ................ 2

L. F. Claiborne, Federal-State Offshore Boundary

Disputes: The Federal Perspective, Law of

the Sea Institute Eighteenth Annual Conference (1984),

reprinted in The Developing Order of

the Oceans (R. Kreuger and S. Riesenfeld,

Gs ME ccockcsanchesaaeoutridsessdeeeéel 1,2

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

No. 84, Original

UNITED STATES OF AMERICA, Plaintiff,

Vv.

STATE OF ALASKA

INTRODUCTION AND INTEREST OF AMICUS CURIAE

For over 200 years, the Equal Footing doctrine

expressed in the Northwest Ordinance of 1787 and

acknowledged as a constitutional rule by this Court has been a

linchpin of our federal system. Inherent in the exceptions of the

United States taken to the Special Master's Report is a crabbed

and narrow construction of that doctrine that would restrict it

to “inland waters” and characterize the historic balancing of

state and federal interests in the Submerged Lands Act, ch. 65,

67 Stat. 29 (codified at 43 U.S.C. §§ 1301 ef seqg.), as merely

another federal grant, subject to the same rules of construction

as one to any private individual or corporation.” Furthermore,

1. The federal position, expressed in the Exceptions to the Special

Master's Report, was more baldly asserted in 1984 by a then-Deputy

Sobcitor General: "[f}rom the federal perspective, it is perfectly obvious that

the beds of navigable waters, inshore and offshore—traditionally the arteries

of interstate and foreign commerce unpressed with a federal navigational

servitude—belong, if to anyone, to the nation rather than the individual

states,” but that “alas, our Supreme Court went astray in the 1840s" when

it established the rule of state ownership. L.F. Claiborne, Federal-State

the United States urges a broad and unwarranted construction

of this Court's standards governing states’ interests in their

inland waters contending, in effect, that the mere creation of a

reserve shows the “public exigency" needed to withhold state

waters, and an incomplete withdrawal defeats the states’

ictonet 3 |

Historic principles of federalism are not to be dealt

with so lightly. The states represented in this brief are not mere

federal grantees. They have a stewardship interest in the

thousands of miles of coastline and inland waters that this Court

has characterized as an inherent attribute of their sovereignty.

We note that another case pending before the Court

presents related issues and an overlapping issue. That case,

Idaho v. Coeur d'Alene Tribe of Idaho, No. 94-1474, presents

the question whether the Tribe can maintain an action against

the State, notwithstanding the bar of the Eleventh Amendment

and the strong presumption of State ownership, to adjudicate its

claim to the bed of the navigable Lake Coeur d’ Alene. It is also

raises an issue presented here, that is, whether a pre-statehood

executive reservation, not specifically authorized by Congress,

Offshore Boundary Disputes: The Federal Perspective, Law of the Sea

Institute Eighteenth Annual Conference (1984), reprinted in The Deveivping

Order of the Oceans 360 (R. Krueger and S. Riesenfeld, eds., 1985).

Although Mr. Claiborne, a distinguished attorney awarded the sobmquet

“The Celestial General,” see L. Caplan, The Tenth Justice 155 (1987),

disavowed any intention to represent the official position of the United

States, he went on to say, “This is not to suggest that the government would

have any cause to disagree with the very loyal and presumably correct

statements made in this paper." L.F. Claiborne, supra, at 374 n.1. Indeed,

the federal government's brief in United States v. California, 332 U.S. 19

(1946), stated that the rule applying the Equal Footing doctrine to support

state ownership of tidelands and lands underlying navigable inland waters "is

believed to be erroneous, but the government does not ask that it be

overruled.” Brief for the United States in Support of Motion for Judgment

(No. 12, Original) (Oct. Term, 1946) (filed Jan. 1947) 22.

can defeat a future State’s entitlement under the equal footing

doctrine. Many of the States appearing as amici here appeared

as amici in that case as well.

SUMMARY OF ARGUMENT

1. A clear and unequivocal intent of Congress based

on international duty or public exigency must be shown before

lands underlying navigable waters may be deemed to have been

withheld from a state. Since the beginning of our Republic, the

people of each state held “all their navigable waters, and the

soils under them" for common use, as an attribute of

sovereignty. Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212,

222-29 (1845).

2. Congress must show an affirmative intent to defeat

a future state's title to such lands.

3. The executive branch alone may not act to defeat

a state's interests in navigable waters. Congress must expressly

and unequivocally take action, based on the criteria established

in earlier decisions of this Court.

4. These principles are applicable whether the state's

interest in the lands in question arises under the Equal Footing

doctrine or under the Submerged Lands Act, because Congress

intended in that Act to confirm the states’ rights in their

navigable waters and restore the status quo in that respect.

ARGUMENT

L

THE STRONG PRESUMPTION AGAINST

DIVESTITURE OF A STATE'S

ENTITLEMENT TO ITS NAVIGABLE

WATERS EXTENDS TO SUBMERGED

LANDS AS WELL AS TO “INLAND

NAVIGABLE WATERS"

A. The Equal Footing Doctrine Historically Has

Applied To All Of A State's Navigable Waters.

In enunciating the Equal Footing doctrine, this Court

has repeatedly characterized its significance in our federal

system. The states’ interests in navigable waters, acquired by

the original colonies when "the people of each state became

themselves sovereign,” Pollard'’s Lessee v. Hagan, 44 U.S. (3

How.) 212, 220 (1845) (citation omitted), and reserved to the

newly admitted states as well, have been described as inherent

attributes of sovereignty, “so identified with the sovereign

power of government that a presumption against their

separation from sovereignty must be indulged, in construing

either grants by the sovereign . . . or transfer of sovereignty

itself." United States v. Oregon, 295 U.S. 1, 14 (1935)

For many years, it was assumed that submerged lands

within the territorial sea, as well as tidelands and lands

underlying navigable lakes and rivers, belonged to the states, as

successors to the nghts of the British crown. The common law

made no distinction between the sovereign's interest in tidelands

and those lands underlying the territorial sea. "By the common

law, both the title and the dominion of the sea, and of rivers and

arms of the sea, where the tide ebbs and flows, and . +il the

lands below high water mark, within the jurisdiction of the

Crown of England, are in the King." Shively v. Bowlby, 152

U.S. 1, 11 (1894) (citing Lord Chief Justice Hale in De Jure

Maris). Thus, this Court concluded, “In England, from the time

of Lord Hale, it has been treated as settled that the title in the

soil of the sea, or of arms of the sea below ordinary high water

mark, is in the King... ." /@ at 13.

As this Court stated in 1842, "[W]hen the Revolution

took place the people of each State became themselves

sovereign, and in that character hold the absolute right to all

their navigable waters and the soils under them for their own

common use, subject only to the rights since surrendered by the

Constitution to the general government." Martin v. Waddell,

41 U.S. (16 Pet.) 367, 410 (1842). The thirteen original states

claimed ownership and control of the submerged lands under

their coasts, as did those states subsequently admitted to the

union. “It was substantially agreed that the 13 original Colonies

owned the lands within three miles of their coasts because of

their sovereignty and the alleged international custom... ."

United States v. Louisiana, 363 U.S. 1, 22 (1960), Pollard's

Lessee, 44 U.S. (3 How.) at 230. However, in United States v.

California, 332 U.S. 19, 38-39 (1947), the Court accepted the

arguments of the federal government that interests of national

defense and international obligations compelled the holding that

"paramount rights" in the submerged lands should rest in the

United States.

More years of litigation over the meaning of

“paramount rights" was forestalled by Congress's enactment of

the Submerged Lands Act, which was expressly intended to

reverse the Court's holding with respect to the submerged lands

seaward of low tide out to their seaward boundaries. Nothing

in the Act, its history, or this Court's subsequent interpretations

of it suggest that in restoring the status quo with respect to the

states’ submerged lands, the presumption against frustration of

those rights should be changed. Accordingly, the rules this

Court has set forth in Montana v. United States, 450 U.S. 544

(1981) and Uiah Div. of State Lands v. United States, 482 U.S.

193 (1987) remain in effect.

B. States’ Lands Beneath Navigable Waters May Be

Conveyed Or Reserved Only Under Limited

Circumstances Not Demonstrated Here.

Under established principles, pre-statehood grants

may be upheld only under "the most unusual circumstances,"

Utah Div. of State Lands, 482 U.S. at 197, and only

“international duty or public exigency" has justified such

actions. Shively, 152 U.S. at 48-50. Such conveyances are

"not lightly to be inferred, and should not be regarded as

intended unless the intention was definitely declared or

otherwise made very plain." United States v. Holt State Bank,

270 U.S. 49, 55 (1926). Finally, such a conveyance must leave

no doubt that it was intended to “embrace [] the land under the

waters" affected. Montana, 450 U.S. at 552.

In the controversy before this Court, the record

shows only an interest on the part of the executive to set aside

large portions of public lands encompassing navigable waters

for the purposes of a petroleum reserve and a wildlife refuge.

No showing has been made that respect for equal footing rights

and navigable waters within these areas is incompatible with the

reservation. Cf Montana, 450 U.S. at 556.

The presumption against such a pre-statehood grant

or reservation may only be overcome by a showing that: 1)

Congress clearly intended to include the submerged land within

the reservation, and 2) Congress affirmatively intended to defeat

the future state's title to the submerged lands. Utah Div. of

State Lands, 482 U.S. at 202. Neither of those showings has

been made here.

C. The Submerged Lands Act Restores States’ Equal

Footing Rights To Submerged Lands Within

Their Boundaries.

As this Court has stated, "The very purpose of the

Submerged Lands Act was to undo the effect of this Court's

1947 decision in United States v. California." United States v.

California, 436 U.S. 32, 37 (1977). In examining the legislative

history of the Act, this Court has noted that the 1953 Act was

the culmination of many years of attempts to pass such

legislation. Louisiana, 363 U.S. at 6n4* The relevant

legislative history cited by this Court in the Louisiana case

makes it abundantly clear the purpose of Congress was to undo

the 1947 decision with respect to the three-mile belt. A

representative passage, from a Report on S.J. Res. 13 states:

"The purpose of this legislation is to write the law for the future

as the Supreme Court believed it to be in the past--that the

States shall own and have proprietary use of all lands under

navigable waters within their territorial jurisdiction, whether

inland or seaward, subject only to the governmental powers

delegated to the United States by the Constitution."

S. Rep. No. 133, 83d Cong., Ist Sess., to accompany S.J. Res.

13 at 7-8 (Mar. 27, 1953), quoted in Louisiana, 363 U.S. at 19

n.17.

Any possible doubt on this question was removed by

this Court's decision with respect to the Channel Islands off

2. “The legislative history of all the bills considered prior to enactment

of the Submerged Lands Act in 1953 is directly relevant to the latter Act,

since the purposes and phraseology of such bills, and the objections raised

against them were substantially sumilar. During the hearings on the final

bills [S.J. Res. 13 (1953) became the Submerged Lands Act], all prior

hearings on predecessor bills were expressly incorporated into the record .

.. +" Louisiana, 363 U.S. at 17 0.16 (emphasis added).

California's Coast. There, as mentioned, the court held, "The

very purpose of the Submerged Lands Act was to undo the

effect of this Court's 1947 decision in United States v.

California." California, 436 U.S. at 37. Thus, an attempted

reservation of lands that would have been federally-owned

under the Submerged Lands Act failed because the passage of

the Submerged Lands Act wiped out the underlying federal

claim.

If Congress intended to restore the states’ interests in

the three-mile belt to their pre-California position, as the

history of the Submerged Lands Act abundantly shows, then the

states are entitled to "sovereignty and jurisdiction" over these

lands. Pollard's Lessee, 44 U.S. (3 How.) at 229. "This right

of eminent domain over the shores and the soils under the

navigable waters, for all municipal purposes, belongs exclusively

to the states within their respective territorial jurisdictions, and

they, and they only, have the constitutional power to exercise it.

To give to the United States the right to transfer to a citizen the

title to the shores and the soils under the navigable waters,

would be placing in their hands a weapon which might be

wielded greatly to the injury of state sovereignty, and deprive

the states of the power to exercise a numerous and important

class of police powers." /d. at 230.

10

Il.

ONLY CONGRESS CAN DEFEAT THE

STATES' PRESUMPTIVE RIGHT TO

LANDS ACQUIRED UNDER THE EQUAL

FOOTING DOCTRINE AND THE

SUBMERGED LANDS ACT

The decisions of this Court respecting states’ interests

in their submerged lands reflect two principles: 1) The executive

branch has no inherent authority to withhold submerged lands,

2) Congress cannot impliedly delegate to the executive power

to defeat a future state's equal footing title to submerged lands.

Or, as this Court has stated: "Since the Constitution places the

authority to dispose of public lands exclusively in Congress, the

executive's power to convey any interest in these lands must be

traced to Congressional delegation of its authority." Sioux

Tribe v. United States, 316 U.S. 317, 326 (1942).

In Sioux Tribe, this Court held that the executive had

no general power to convey public lands during the territorial

period. Jd at 331. What implied delegation of power the

executive possessed existed with respect to public lands, not

submerged lands constituting an inherent attribute of state

sovereignty. Oregon, 295 U.S. at 14. Although the Court

found that with respect to the public lands, “the long-continued

practice, [and] the acquiescence of Congress” justified

upholding limited executive reservations, Sioux Tribe, 316 U.S.

at 326 (citing United States v. Midwest Oil Co., 236 U.S. 459,

483 (1915)), such a delegation was never extended to navigable

waters.

Furthermore, clear and specific intent on the part of

Congress must be required to find that the United States

authorized a pre-statehood reservation of submerged lands in

light of principles of federalism. To hold otherwise would

ll

permut the constitutional balance between states and the federal

government to be changed unilaterally by executive action.

A fortiori, a mere application for withdrawal, not

approved until after statehood, cannot have the effect of

defeating a State's equal footing title. This unconsummated act

of the executive branch cannot be sustained.