Reply Brief — Cuban American Bar Ass'n v. Christopher
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4) Suprame Court, U.S,
FILED
No. 84, Original OCT 10 1996
IN THE SUPREME COUR —
OF THE
UNITED STATES
OCTOBER TERM, 1996
UNITED STATES OF AMERICA,
Plaintiff
v.
STATE OF ALASKA
ON THE REPORT OF THE SPECIAL MASTER
REPLY BRIEF FOR THE STATE OF ALASKA
Bruce M. Botelho
Attorney General
Counsel of Record
Joanne M. Grace
Assistant Attorney General
P.O. Box 110300
Juneau, Alaska 99811-0300
907-465-3600
G. Thomas Koester
2250 Fritz Cove Road
Juneau, Alaska 99801
907-789-6818
John Briscoe
Washburn, Briscoe & McCarthy
55 Francisco Street, Suite 600
San Francisco, California 94133
415-421-3200
TABLE OF CONTENTS
Page
DE bee eeeavivesboeeseovecoes ]
Summary of Argument ..........0000004 es 6
PES Re ease reo eeresbesececonecoes 1]
I. The application did not defeat Alaska’s
submerged lands entitlement under
the equal footing doctrine .............. 11
A. The filing of the application did not reflect an
“exceptional instance impelled by an
international duty or public exigency” ... 14
B. The application for withdrawal did not include
cs ee 16
C. There is no evidence that Congress
affirmatively intended to defeat Alaska’s
equal footing doctrine title to tidelands
within the boundaries described in the
application, much less the disputed
submerged lands below the line of extreme
DT sheeuwsiceebeeoctocdas 25
II. The application did not defeat Alaska’s
submerged lands entitlement under
the Submerged Lands Act .............. 29
ii
A. The principles the Court established
in the equal footing doctrine cases
apply equally to offshore submerged
lands not subject to the doctrine .......
B. The application did not defeat Alaska’s title
even under the United States’ statutory
amabyals, on ccc ccc cccccsccveres 39
III. Congress could not condition Alaska’s admission
to the Union on the State’s relinquishment
of its entitlement to equal footing
Gestion tenGS ww ct cc cc edsewetutees
IV. Finally, when an international duty or a public
exigency necessitates federal retention of
submerged lands, the United States’ retained
interest should be limited to only those rights
absolutely necessary rather than fee title .....
CONCLUSION ..... eee eee eens ‘eeee
iti
TABLE OF AUTHORITIES
CASES
Page
Arizona v. California, 373 U.S. 546 (1963) .......ccccccccccceceeneeeee 3
California ex rel. State Lands Comm'n v. United States,
| 36
City of Oakland v. Oakland Water-Front Co., 118 Cal.
SG 20
Clemente Javierre v. Central Altagracia, Inc., 217 U.S.
CC EEE 37
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) .............. 36
Coyle v. Smith, 221 U.S. 559 (VOL) ccccccccccccccccceeeseneenenes 10, 47
Elkins v. United States, 364 U.S. 206 (1960) ..........cccccccccoees 38
Flora v. United States, 357 U.S. 63 (1958) ......ccccccccccesseooees 38
Humphrey's Ex'r v. United States, 295 U.S. 602 (1935) ....... 36
Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842) .............. 2, 11
Montana v. United States, 450 U.S. 544 (1981) ............ passim
New Mexico v. Texas, 275 U.S. 279, modified as to other
issues, 276 U.S. 557 (1928) .....cccccccccccenes 16
TABLE OF AUTHORITIES
CASES
Page
Oregon ex rel. State Land Bd. v. Corvallis Sand & ‘sra el
Co. 429 U.S. 363 (1977) ..cccccccceeeeevnees 3,47
Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845) .... 2, 8, 11, 46
Shively v. Bowlby, 152 U.S. 1 (1894) ........ccecccereeeeeeenneenenes 12
United States v. California, 332 U.S. 19 (1947) ..... 4, 8, 30, 31
United States v. California, 381 U.S. 139 (1965) .............000 4
United States v. California, 436 U.S. 32 (1978) ..........0« 30, 37
United States v. First City Nat'l Bank of Houston, 386 U.S.
|, 37
United States v. Holt State Bank, 270 U.S.49 ~
—_——————— EE 3, 7, 12,14
United States v. Louisiana, 363 U.S. | (1960) ............ 2, 10, 31
United States v. Louisiana (Alabama and Mississippi
Boundary Case), 470 U.S. 93 (1985) ........ 4
United States v. Maine, 420 U.S. 515 (1975) .......cccecceeeereees 35
United States v. Maine (Massachusetts Boundary Case),
BN ye 16
v
TABLE OF AUTHORITIES
CASES
Page
United States v. Oregon, 295 U.S.1 (1935) ccccccccccececseeseeeeneeee 3
Utah Div. of State Lands v. United States, 482 U.S. 193
GOD dectenentineenerticniemensenecsesscenscece passim
Watt v. Alaska, 451 U.S. 259 (1981) ......cccccccccecceeseeeeeeeees 10, 43
CONSTITUTIONS
U.S. Constitution
C8 BO ) ee Ce: 11
TREATIES
Convention on the Territorial Sea and Contiguous Zone,
Apr. 29, 1958, 15 U.S.T. (pt. 2) 1607,
ED tenncnnsanegiememennen 4
STATUTES
Alaska Native Claims Settlement Act, Pub. L. No. 92-
203, 85 Stat. 688 (1971) (codified as
amended at 43 U.S.C. §§ 1601 ef seq.
TS Se, a 48
vi
TABLE OF AUTHORITIES
STATUTES
Page
Alaska Right-of-Way Act of May 14, 1898, ch. 299, 30
Stat. 409 (formerly codified at 48
U.S.C. § 411; current version
primarily codified at 43 U.S.C. §§
942-1 to 942-9 (1986)) ..........0006 25, 26, 45
Alaska Statehood Act, Pub. L. No. 85-508, 72 Stat. 339
(1958) (reprinted as amended in 48 U.S.C.
note preceding § 21 (1987)) ........ 5, 8, 9, 10
Mineral Leasing Act of 1920, 30 U.S.C. § 191 (1940) ......... 27
Submerged Lands Act, ch. 65, 67 Stat. 29 (1953)
(codified as amended at 43 U.S.C. §§
1301 ef Seg. (19BB)) .....cccccccceeceeeeeees passim
ADMINISTRATIVE, EXECUTIVE AND LEGISLATIVE
MATERIALS
Hearings
Alaska Statehood: Hearings on S. 50 before the Senate
Committee on Interior and Insular Affairs,
83d Cong., 2d Sess. (1954)........... 26, 27,45
vii
TABLE OF AUTHORITIES
ADMINISTRATIVE, EXECUTIVE AND LEGISLATIVE MATERIALS
Page
Hearings before the Subcommittee on Territories of the
Senate Committee on Interior and
Insular Affairs, 85th Cong., Ist Sess.
(1957), reprinted in Alaska
Submerged Lands: Hearings on H.R.
8054 before the Senate Subcommittee
on Interior and Insular Affairs, 85th
Cong., 2d Sess. 117 (1957) ............... 27, 28
Statehood for Alaska: Hearings on H.R. 50 and Other Bills
before the Subcommittee on Territorial
and Insular Affairs of the House
Committee on Interior and Insular
Affairs, 85th Cong., Ist Sess. (1957) ...... 42
Debates
Neen 44
Reports
H.R. Rep. No. 1778, 80th Cong., 2d Sess. (1948),
reprinted in 2 1953 U.S. Code Cong. &
Admin. News 1415 .00.........cccccccceeseee passim
H.R. Rep. No. 695, 82d Cong., Ist Sess. (1951), reprinted
in 2 1953 U.S. Code Cong. & Admin.
CRRA See 34
viii
TABLE OF AUTHORITIES
ADMINISTRATIVE, EXECUTIVE AND LEGISLATIVE MATERIALS
Page
H.R. Rep. No. 215, 83d Cong., Ist Sess. (1953), reprinted
in 2 1953 U.S. Code Cong. & Admin.
DEIE CIID ceccnssarssestnscatbcccssnccsescesessecscsesss 35
H.R. Rep. No. 675, 83d Cong., Ist Sess. (1953) .........c-eese0 41
H.R. Rep. No. 624, 85th Cong., Ist Sess. (1957) ........... 28, 41
H.R. Rep. No. 104-8, 104th Cong., Ist Sess. (1995) ............ 48
S. Rep. No. 1592, 80th Cong., 2d Sess. (1948) ............. passim
S. Rep. No. 1929, 81st Cong., 2d Sess. (1950) .........c0c0ev000 41
S. Rep. No. 133, 83d Cong., Ist Sess. (1953), reprinted in
2 1953 U.S. Code Cong. & Admin.
DR SeN GD cceneniceicnciahcnttinenienntsiniente 35, 36
S. Rep. No. 1028, 83d Cong. 2d Sess. (1954) .........csseeeseves 41
S. Rep. No. 1045, 85th Cong., Ist Sess. (1957), reprinted
in 2 1957 U.S. Code Cong. & Admin.
PETE POD cartcscatcncssctcsnsssccseccnpescsssssescscses 27
S. Rep. No. 1163, 85th Cong., Ist Sess. (1957) .........00++. 41,45
ix
TABLE OF AUTHORITIES
ADMINISTRATIVE, EXECUTIVE AND LEGISLATIVE MATERIALS
S. Rep. No. 1720, 85th Cong., 2d Sess. (1958), ETD a
in 2 1958 U.S. Code Cong. & Admin.
eee rchadticiitentcscreninsenicant 27
Regulations
43 C.F.R. § 295.9 (1958 Supp.) ..ccccccccccccssssssscssssssssssssssssseeen 14
43 C.F.R. § 295.11(a) (1958 Supp.) ..cccccccccccccssessseeee 15, 17, 40
43 C.F.R. § 295.12 (1958 Supp.) c.ccccccccccccssssssssssssssssssssssseeee 14
43 C.F.R. § 295.13 (1958 Supp.) ccccccccccccccccscsesssscsseceeeeseeneee 15
Other
19 Fed. Reg. 8076 (1954) ..ccccccccccsssssssssssssssssssssssessessesesseeseen 21
20 Fed. Reg. 4227 (1955) .cccccccccssssssssssssssssssssssessseseseeseeeeneven 21
23 Fed. Reg. 8163 (1958) cccccccccccscssssssssssssssssessssssssereeeeseeeeee 24
23 Fed. Reg. 9039 (1958) ...cccccccccsssssssssssssssseseeseereeeneereennen 24
86 Interior Dec. 151 (1978) ..ccccccccccccesssssssssssssesssssssesssssessesee 43
Public Land Order 1749, 23 Fed. Reg. 8623 (1958) ............. 23
x
TABLE OF AUTHORITIES
ADMINISTRATIVE, EXECUTIVE AND LEGISLATIVE MATERIALS
Public Land Order 2213, 25 Fed. Reg. 12,599 (1960) .......... 21
Solicitor’s Opinion M-36562 (1959)........-:-:sssseseeeen 10, 22, 43
RULES
Rules of the Supreme Court of the United States
Boarhn DGD ....ccoccescccsrececcsocosrrescescnvesssosscsscosonsssesenssssssesseseeeenees :
Boren BOD. ..ncceccoccocerccceescessessoossnovescosesososnnssessoneseveseeessessnceesens :
hy ere
BRIEFS
Reply Brief for the United States (Sept. 1985), United
States v.Maine (Massachusetts
Boundary Case) (No. 35 Original)
(Oct. Term, 1985) ......-.--s-++0: CEST 16
BOOKS AND PUBLICATIONS
L.F. Claiborne, Federal-State Boundary Disputes: The
Federal Perspective, Law of the Sea
Eighteenth Annual Conference (1984),
reprinted in The Developing Law of the
Oceans (R. Krueger and S. Riesenfeld,
COB... 1DBS) -.ccccovescsececerorserevescesossccovsesceseess 32
2 Aaron L. Shalowitz, Shore and Sea Boundaries (U.S.
Dept. of Commerce Pub. 10-1, 1964) ..... 28
No. 84, Original
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
UNITED STATES OF AMERICA
Plaintiff
Vv.
STATE OF ALASKA
ON THE REPORT OF THE SPECIAL MASTER
REPLY BRIEF FOR THE STATE OF ALASKA
INTRODUCTION
In November of 1957, the Bureau of Sport Fisheries and
Wildlife in the Interior Department applied for the
withdrawal and reservation as a wildlife refuge of almost 9
million acres in northeastern Alaska. Report of the Special
Master ("Report") at 447-50 and n.4. Although filed before
Alaska's admission to the Union on January 3, 1959, the
application was not acted on until December of 1960, nearly
two years after Alaska statehood. Jd at 449. The United
States contends that the lands applied for included vast areas
of tide and submerged lands, and that the mere act of
applying for their withdrawal deprived Alaska of its
entitlement to these submerged lands under both the
constitutional equal footing doctrine and the Submerged
2
Lands Act, ch. 65, 67 Stat. 29 (1953) (codified as amended at
43 U.S.C. §§ 1301 ef seg. (1988)) Exception of the United
States and Brief for the United States in Support of
Exception ("United States’ Brief") at 31-53.
Alaska opposes the United States’ exception on four
grounds: (1) the application did not defeat Alaska's
submerged lands entitlement under the constitutional equal
footing doctrine; (2) the application did not defeat Alaska's
submerged lands entitlement under the Submerged Lands
Act; (3) Congress could not condition Alaska's admission to
the Union on a relinquishment by the State of its submerged
lands entitlement under the equal footing doctrine; and (4) in
any event, Alaska's rights under the equal footing doctrine
were defeated only to the minimum extent necessary to fulfill
the purpose of the withdrawal.
The most troubling aspect of the United States’
submission is its cavalier attitude toward Alaska's sovereign
rights and, by extension, those of all other States. State
ownership of lands underlying navigable waters within State
boundaries is “an inseparable attribute of the equal
sovereignty guaranteed to it on admission" to .the Union.
United States v. Louisiana, 363 U.S. 1, 16 (1960). The
original thirteen States succeeded to the British Crown's
sovereign title to such lands at the time of the Revolution.
Martin v. Waddell, 41 U.S. (16 Pet.) 367, 410 (1842). Title
to such lands vests in subsequently-admitted States upon
admission to ensure that they join the Union on an "equal
footing" with the original thirteen. Pollard v. Hagan, 44
U.S. (3 How.) 212, 229-30 (1845).
To implement this equal footing doctrine, the United
States holds such lands in a territory “in trust" for future
States created out of that territory. Utah Div. of State Lands
v. United States, 482 U.S. 193, 196 (1987) (quoting Pollard,
3
44 U.S. (3 How.) at 230). "[U]pon the admission of a state
to the Union, the title of the United States to lands
underlying navigable waters within the state passes to it, as
incident to the transfer to the State of local sovereignty,”
United States v. Oregon, 295 U.S. 1, 14 (1935). Such title is
“automatically vested," Arizona v. California, 373 U.S. 546,
597 (1963), and "is conferred not by Congress but by the
Constitution itself." Oregon ex rel. State Land Bd. v.
Corvallis Sand & Gravel Co., 429 U.S. 363, 374 (1977).
While Congress has the power to defeat a new State's title to
such lands by conveying them to a third party prior to
statehood, it has never provided for disposal of submerged
lands under the general public land laws; it will do so only in
“exceptional instances when impelled . . . by some
international duty or public exigency." United States v. Holt
State Bank, 270 U.S. 49, 55 (1926). Accordingly, there is a
"strong presumption" against defeat of a new State's title
which will not be inferred "unless the intention was
definitely declared or otherwise made plain, or was rendered
in clear and especial words, or unless the claim confirmed in
terms embraces the land under the waters of the stream."
Montana v. United States, 450 U.S. 544, 552 (1981)
(quotations and citations omitted).
The Court has never held that a pre-statehood federal
reservation (as distinct from a conveyance to a third party)
can defeat State title under the equal footing doctrine, Utah,
482 U.S. at 200, much less that a mere application not acted
on until long after statehood could have that effect.
Assuming arguendo that it could, however, the United States
first must show (a) that Congress clearly intended to include
submerged lands in the reservation, and (t) that Congress
affirmatively intended to defeat the future State's title to the
lands. Jd. at 202.
4
The United States concedes that some of the lands at issue
under its exception -- tidelands and lands underlying inland
navigable waters! -- are subject to the equal footing doctrine.
United States’ Brief at 51-53. The United States nonetheless
relies on United States v. California, 332 U.S. 19 (1947) (the
"1947 California decision"), which held that the equal
footing doctrine does not extend offshore and the United
States, not the individual States, had "paramount rights” to
offshore submerged lands. United States’ Brief at 31-33.
From this, it argues that there is as strong a presumption in
favor of continued federal ownership of such lands as there is
, As shown on the Master's Figures 9.1 and 9.2, Report facing p. 450, several
of the disputed areas are juridical bays under Article 7 of the Convention on the
Territorial Sea and Contiguous Zone, Apr. 29, 1958, 15 U.S.T. (pt. 2) 1607,
T.LA.S. No. 5639, which the Court has adopted for Submerged Lands Act
purposes. United States v. California, 381 U.S. 139, 161-67 (1965). On Figure
9.1, these areas at minimum include the inlet enclosed by Brownlow Point, the
inlet enclosed by Konganevik Point, and Simpson Cove. On Figure 9.2, these
areas at minimum include Arey Lagoon, Kaktovik Lagoon, Pokok Bay, Angoon
Lagoon, Egaksrak Lagoon, and Demarcation Bay. All of the disputed lands,
ene, CANNES Ses SY CES SS eres
islands separated narrow entrances which are
scroas, Sue the Master's Figures 9.1 and 9.2, Report facing p. 450, and Report a
138-39 (all of the waters enclosed by the islands are within three miles of land
and none of the closing lines is long enough to add any area to the three-mile
belt). All of the lagoons accordingly are inland waters under the 10-mile rule
that this Court found was the United States’ policy from at least 1903 until 1961:
Prior to its ratification of the Convention on March 24, 1961, 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 grouped that no
entrance exceeded 10 geographical miles. This 10-mile rule represented the
publicly stated policy of the United States at least since the time of the
Alaska Boundary Arbitration in 1903.
United States v. Louisiana (Alabama and Mississippi Boundary Case), 470 U.S.
93, 106-07 (1985) (footnotes omitted). See Exceptions of the State of Alaska
and Supporting Brief ("Alaska’s Brief") at 7-43.
5
in favor of the States for lands subject to the equal footing
doctrine. Jd. at 33-34. It concedes that Congress, in the
Submerged Lands Act, granted to the coastal States the
offshore submerged lands within their boundaries. United
States’ Brief at 34-35. It claims, however, that the
submerged lands at issue here fall within a statutory
exception to Alaska's Submerged Lands Act grant’ for lands
“expressly retained" by the United States at statehood. /d. at
39, citing section 5(a) of the Act, 43 U.S.C. § 1313(a). In its
view, the application at issue here designated the disputed
lands as "lands withdrawn or otherwise set apart as refuges
or reservations for the protection of wildlife" for purposes of
section 6(e) of the Alaska Statehood Act, Pub. L. No. 85-
508, 72 Stat. 339, 340-41 (1958) (reprinted as amended in 48
U.S.C. note preceding § 21 (1987)), and section 6(e) in turn
“expressly retained" the lands at the time of statehood within
the meaning of section 5(a) of the Submerged Lands Acct.
United States’ Brief at 39. To the extent there may be doubt
that the lands were "expressly retained,” the United States
contends that such doubts must be resolved in favor of the
United States. /d. at 36 and 39. Finally, the United States
submits that, if it prevails on this statutory argument as to
Submerged Lands Act lands, it also should prevail as to
equal footing doctrine lands.’ /d. at 51-53.
* Congress made the Submerged Lands Act applicable to Alaska in section
6(m) of the Alaska Statehood Act, Pub. L. No. 85-508, 72 Stat. 339, 343.
* The United States’ discussion of this last point is so cursory, however, that it
should be deemed waived. Cf Supreme Court Rules 24.1(i) (a brief for a
petitioner or an appellant must contain "[t}he argument, exhibiting clearly the
points of fact and of law presented and citing the authorities and statutes relied
on" (emphasis added)), 24.2 (a brief for a respondent or an appelice “shall
conform” to the same requirement), and 24.4 (a reply brief shall conform to the
same requirement).
6
i i all counts. More
The United States is wrong on |
fundamentally, however, the United States seeks to preg the
law in a manner at odds with the decisions of this urt
establishing and applying the equal footing doctrine, contrary
. In I below, Alaska shows that the pre-statehood
States int which the United States relies did not defeat
Alaska's submerged lands entitlement under the equal footing
doctrine. In part II.A, Alaska demonstrates that Congress
must apply to both equal footing doctrine lands and offshore
lains that Congress
its own terms. In part Ill, Alaska exp
could not condition Alaska's admission to the Union on the
extent any pre-statehood federal action defeated Alaska's _
it should in all events be limited to the minimum necestlly
protect the interest claimed by the United States with
remaining incidents of ownership passing to Alaska.
SUMMARY OF ARGUMENT
I. This Court's equal footing doctrine decisions establish a
number of stringent criteria for finding that a pre-statehood
federal action has defeated a State's title to lands ss
navigable waters. The application at issue here meets none ©
these criteria.
-
A. Congress will defeat a State's equal footing doctrine
title only in "exceptional instances when impelled to particular
disposals by some international duty or public exigency.”
Holt State Bank, 270 U.S. at 55. The filing of an application,
however, did not reflect the existence of such exceptional
instances. Applications could be filed by virtually any federal,
State, territorial, or municipal official. Once filed, the
application would be reviewed to determine whether it should
be granted. During the pendency of the review, there was no
change in the way in lands were administered. This proves
that, until a final decision on the application was made, there
could be no exceptional instance supporting a congressional
determination to deviate from its consistent policy of holding
lands under navigable waters for the benefit of future States.
B. The application for withdrawal at issue here did not
include submerged lands. The Court has established a
presumption against the inclusion of lands underlying
navigable waters in pre-statehood federal disposals or
withdrawals and reservations, and the United States must
“establish that Congress clearly intended to include land under
navigable waters within the federal reservation." Utah, 482
U.S. at 202.
The application and the notice of it given to the public
stated that the intent was to withdraw the applied for lands
from “all forms of appropriation under the public land laws”
except mineral leasing and mining locations. See Report at
447 n.1 (application) and 448 n.2 (public notice). Tidal and
submerged lands were not available for appropriation under
the public land laws, however, and this is evidence that they
were included among the applied for lands. Utah, 482 U.S. at
203-04.
The boundary description of the applied for lands followed
the "line of extreme low water." See Report at 449 n.2. Thus,
its own terms, it excluded the lands underlying the lagoons
Aaa Setmesor en mtr This is especially true
because the United States in several contemporaneous actions
wrote boundary descriptions that explicitly included all areas
While there are tidelands within the exterior boundaries of
the applied for lands, that fact is not sufficient to overcome
presumption in favor of State title, particularly when there is
no express reference to those lands as here. Montana, 450
U.S. at 554. In contemporaneous actions in Alaska, moreover,
oe Lanna
intended to include them in b
C. The United States must show that Congress
affirmatively intended to defeat Alaska's title to equal footing
doctrine lands, Utah, 482 U.S. at 202, and it has not. In fact,
the legislative history of the Alaska Statehood Act reveals the
did not intend to defeat Alaska's equal footing
doctrine title. Instead, Congress affirmatively intended that
Alaska receive title under the equal footing doctrine to all
lands underlying navigable waters within its boundaries at
statehood. .
Il. The application did not defeat Alaska's submerged
A. The principles the Court established in the equal
footing doctrine cases apply equally to offshore submerged
lands not subject to the doctrine. The legislative history of the
Submerged Lands Act reveals two congressional purposes.
First, Congress intended to rewrite the law for the future as
it had been believed to be prior to this Court's 1947 California
decision and apply the Pollard equal footing doctrine rule of
State ownership to offshore submerged lands within State
boundaries. Congress's second purpose was to prevent any
further erosion of the States’ submerged land rights by this
Court.
To implement this congressional intent, the Court must
apply the same presumption in favor of State title to offshore
submerged lands under the Submerged Lands Act as it applies
to equal footing doctrine lands. As the United States relies on
an exception to the Submerged Lands Act, the burden must
fail on it to show that it comes within the exception and any
doubts must be resolved in favor of Alaska. That exception,
for lands “expressly retained" by the United States at
statehood, 43 U.S.C. § 1313(a) (emphasis added), requires the
United States to show affirmatively that Congress intended to
prevent the transfer of the disputed lands to Alaska.
B. The application did not defeat Alaska’s submerged
lands entitlement under the Submerged Lands Act even under
the United States’ statutory analysis.
The United States claims that section 6(e) of the Alaska
Statehood Act "expressly retained" the applied for lands for
purposes of the Submerged Lands Act exception. This
mischaracterizes the nature and the legal effect of the
application, the function and purpose of section 6(e) of the
Alaska Statehood Act, and the language and intent of the
Submerged Lands Act exception.
Section 6(e) of the Alaska Statehood Act transferred
certain property used for fish and wildlife management to the
new State which, following statehood, would take over that
traditional State responsibility from the federal government.
Lands “withdrawn or otherwise set apart as. refuges or
reservations for the protection of wildlife" were excepted from
this grant. /d. (emphasis added.) The filing of the application
here did not withdraw or otherwise set apart any lands as
refuge or reservation, for the administrative regulations
governing such applications provided that there was no change
in the administration of the lands unless and until the
ication granted. The legislative history of section 6(¢)
Tos Alaska Statehood Act makes clear that Congress
concluded shortly after statehood that applications for the
withdrawal and reservation of tidelands for refuge purposes
did not prevent the transfer of the applied for lands to Alaska.
Solicitor’s Opinion M-36562 (1959) (Alaska Exhibit ( ~
Ex.") 76). That contemporaneous construction of the effect o
the Submerged Lands Act grant on an application for
withdrawal is entitled to deference by this Court. Wait v.
section's grant of property to Alaska. It did
anything from the Submerged Lands Act grant
under section 6(m) of the Statehood Act. In fact, the
legislative history of the Alaska Statehood Act reveals that
grant to Alaska to include all submerged lands within the new
tate's boundaries. :
: Ill. Because a new State's sovereign ownership of
lands under the equal footing doctrine “is an
inseparable attribute of the equal sovereignty guaranteed to It
on admission,” Louisiana, 363 U.S. at 16, Congress could not
condition Alaska’s admission to the Union on the State's
relinquishment of its entitlement to those lands. Coyle v.
Smith, 221 U.S. 559, 566-74 (1911). . |
IV. Where an international duty or a public exigency
necessitates federal retention of submerged lands, the United
States’ retained interest should be limited to only those rights
absolutely necessary to discharge the duty or deal with the
exigency. This would permit the United States to fulfill its
national responsibilities while simultaneously fulfilling at least
some of the State's submerged lands entitlement. To
accommodate both the United States’ and Alaska's legitimate
interests, the United States’ retention of any rights to
submerged lands should be limited to the minimum
to fulfill the purpose of the withdrawal and reservation
ARGUMENT
I. The application did not defeat Alaska's
submerged lands entitlement under the equal
footing doctrine.
Despite acknowledging that at least some of the lands in
issue under its exception are subject to the equal footing
doctrine, it is not surprising that the United States virtually
ignores the more than 150 years of this Court's jurisprudence
establishing and applying the constitutional equal footing
doctrine. The original thirteen States succeeded to the
British Crown's sovereign title to such lands following the
revolution. Martin, 41 U.S. (16 Pet.) at 410. Title to such
lands vests in subsequently admitted States to ensure that
they join the Union on an “equal footing” with the original
thirteen. Pollard, 44 U.S. at 229-30. To implement this
equal footing doctrine, the United States holds such lands in
a territory “in trust" for future States that might be created
out of the territory. /d at 230. The United States has the
power under the Property Clause‘ to convey such lands to
third parties prior to statehood, but has never done so under
* US. Const. art. IV, § 3, cl. 2.
12
i laws. Shively v. Bowlby, 152 U.S. 1,
oe ee een kancen one
only "in exceptional instances when impelled to particular
i by some international duty or public exigency.
Holt State Bank, 270 U.S. at 55.
Montana, 450 U.S. at 552 (citations omitted).
ndeed, in only a si case -- Choctaw Nation v.
wie an 397 U2. 20 (1970) ~ have we conshuted tat
Congress intended to grant sovereign lands to a private
party. The holding in Choctaw Nation, moreover, rested
on the unusual history behind the Indian treaties at issue
in that case, and indispensable to the holding was a
promise to the Indian Tribe that no part of the reservation
would become part of a State. Choctaw Nation was thus
literally a “singular exception,” in which the result
depended "on very peculiar circumstances.
S. at 198 (citations omitted).
pag te has a held that Congress may defeat a
State's equal footing doctrine title by a pre-statehood federal
withdrawal and reservation of lands underlying navigable
waters. In Utah, the only case where that issue was
13
presented, the Court specifically declined to reach the issue
because, even if a reservation could have that effect, it was
not accomplished on those facts. /d. at 201. In reaching that
determination, however, the Court made clear that the same
considerations that apply to a claim that a pre-statehood
conveyance defeated State title also apply to a claim that a
pre-statehood withdrawal and reservation defeated State title:
[T]he strong presumption is against finding an intent to
defeat the State's title. . . . Congress "early adopted and
constantly has adhered" to a policy of holding land under
navigable waters "for the ultimate benefit of future
States." Congress, therefore, will defeat a future State's
entitlement to land under navigable waters only "in
exceptional instances,” and in light of this policy, whether
faced with a reservation or a conveyance, we simply
cannot infer that Congress intended to defeat a future
State's title to land under navigable waters "unless the
intention was definitely declared or otherwise made very
plain."
Given the long-standing policy of holding land under
navigable waters for the ultimate benefit of the States,
therefore, we would not infer an intent to defeat a State's
equal footing entitlement from the mere act of reservation
itself. Assuming arguendo that a reservation of land
could be effective to overcome the strong presumption
against the defeat of state title, the United States would
not merely be required to establish that Congress clearly
iniended to include land under navigable waters within
the federal reservation; the United States would
additionally have to establish that Congress affirmatively
intended to defeat the future State's title to such land.
14
itations omitted).
" pte actions relied on by the United States
here meet none of the criteria established by the Court for
finding that Alaska's title to equal footing doctrine lands was
defeated.
flect an
A. The filing of the application did not re
"exceptional instance impelled by an international
duty or public exigency."
Congress will defeat a State's equal footing doctrine title
only in "exceptional instances when impelled to particular
disposals by some international duty or public exigency.
Holt State Bank, 270 U.S. at 55. At the time Alaska was
admitted to the Union, no decision had been made that the
lands should be withdrawn and reserved as a wildlife refuge.
This fact, standing alone, establishes that there was no
exceptional instance impelled by some international duty or
public exigency that would ot ener Congress to deviate
m its policy of not defeating State title. .
=~ wey Ao of an application rm ~ — eo ca
ted. There were vi y no limitatio
poner eaten Section 295.9 of Title 43 of the Code
of Federal Regulations provided that applications for
withdrawals and reservations for virtually any purpose could
be filed by “the heads of Federal agencies and
instrumentalities and of States and the Territory of Alaska
and their political subdivisions or any subordinate officer
designated by them.” 43 C.F.R. § 295.9 (1958 Supp. ). The
filing of even frivolous applications triggered an
administrative review process. 43 C.F.R. § 295.12 (1958
Supp.). It did not, however, affect the administrative
15
jurisdiction over the lands and did not change the way in
which they were administered. 43 C.F.R. § 295.11(a) (1958
Supp.). The lands were not withdrawn and reserved for the
purposes for which the application had been filed until the
review process was completed, and then only if the
application were granted. 43 C.F.R. § 295.13 (1958 Supp.).
In this case, no change in administration occurred for
more than three years after the filing of the application,
almost two years after Alaska was admitted to the Union and
its submerged lands entitlement under the equal footing
doctrine vested.’ As a result, the lands were not withdrawn
and reserved as a wildlife refuge at the time of statehood.
That, in turn, establishes that, at the time of Alaska's
admission, there was no exceptional circumstance impelled
by an international duty or public exigency which would
have caused Congress to defeat Alaska's title (even assuming
arguendo that a completed withdrawal and reservation as a
refuge would so qualify, which Alaska denies).
The fact that the application ultimately was granted after
Alaska statehood does not change the result. The United
States concedes that under its submission Congress would
have defeated Alaska's equal footing doctrine title to these
lands whether the application was granted or not: "If the
Secretary had ultimately denied the application, the United
States would have continued to own these submerged lands
* The application was filed in November of 1957; Alaska was admitted to
statehood in January of 1959; and the application was acted on in December of
1960. Report at 447-50.
* The United States does not contend that the filing of the application resulted
in the lands being administered as a refuge. It simply notes that, under the
administrative regulations, the lands were administered "in accordance with the
limitations that apply to wildlife refuges.” United States’ Brief at 41.
16
-- just as it had during the territorial period -- unless and until
Congress elected to convey them to Alaska." United States
Brief at 46. This would be true even if the application
ultimately were denied specifically because there were no
exceptional circumstances impelled by an international duty
lic exi
7 ee voto Alaska's title would have been defeated
whether exceptional circumstances impelled by an
international duty or a public exigency existed or not. This
Court's decisions preclude this result.
B. The application for withdrawal did not include
submerged lands.’
Even assuming arguendo that the application for
withdrawal qualified as an exceptional instance impelled by
an international duty or public exigency (and it did not, as
shown above), the application did not defeat Alaska's equal
footing doctrine title. The Court has established a
presumption against the inclusion of lands underlying
navigable waters in pre-statehood federal disposals or
withdrawals and reservations, and the United States must
“establish that Congress clearly intended to include land
? The Master recommends that the Court find that the application included
this portion of Alaska’s northern coast. Report at 477-99 and 505. Alaska did
not except to this recommendation as the Court has indicated that subsidiary
matters "need not be dealt with separately, as they are merged in the ultimate
question,” New Mexico v. Texas, 275 U.S. 279, 286 , modified as to other issues,
276 U.S. 557 (1928), and on the “ultimate issue” of title to the disputed lands the
Master recommended in Alaska's favor. The United States took this same
approach in United States v. Maine (Massachusetts Boundary Case), 475 U.S. 89
(1981). See Reply Brief for the United States (Sept. 1985), United States v.
Maine (Massachusetts Boundary Case) (No. 35, Original) (Oct. Term, 1985), at
2 n.2.
17
under navigable waters within the federal reservation.”
Utah, 482 U.S. at 202.
The application and the notice of it given to the public,
however, stated that the intent was to withdraw the applied
for lands from “all forms of appropriation under the public
land laws" except mineral leasing and mining locations. See
Report at 447 n.! (application) and 448 n.2 (public notice).
Under the applicable regulation, the filing of the application
temporarily segregated the lands from "settlement, location,
sale, selection, entry, lease, and other forms of disposal
under the public lands laws . . . to the extent that the
withdrawal or reservation applied for, if effected, would
prevent such forms of disposal." 43 C.F.R. § 295.11(a)
(1958 Supp.). As the Court noted in Utah, lands underlying
navigable waters
were already exempt from sale, entry, settlement, or
occupation under the general land laws. As this Court
recognized in Shively v. Bowlby, [152 U.S.] at 48,
"Congress has never undertaken by general land laws to
dispose of” land under navigable waters. See also Mann
v. Tacoma Land Co., 153 U.S. 273, 284 (1894) (applying
Shively v. Bowlby, supra, to hold that “the general
legislation of Congress in respect to public lands does not
extend to tide lands"); Illinois Cent. R. Co. v. Illinois, 146
U.S. 387, 437 (1892) (holding that “the same doctrine as
to the dominion and sovereignty over and ownership of
lands under the navigable waters . . . applies, which
obtains at the common law as to the dominion and
sovereignty over and ownership of lands under tide waters
on the borders of the sea"). Therefore, little purpose
would have been served by the reservation of the bed of
the [waterbody at issue].”
482 U.S. at 203. This analysis precludes finding that the
application included submerged lands, for the United States
has failed to show that the submerged lands at issue here
were subject to disposal under the public lands laws.
In addition, the public notice described the boundary of
the applied for lands in a manner that excluded the
submerged lands below the line of extreme low water:
Beginning at the intersection of the International
Boundary line between Alaska and Yukon Territory,
Canada, with the line of extreme low water of the Arctic
Ocean in the vicinity of Monument One of said
International Boundary line;
Thence westerly along the said line of extreme low water,
including all offshore bars, reefs, and islands to a point on
the Arctic Seacoast known as Brownlow Point .. . .
See Report at 449 n.2 (emphasis added).
On its face, this description does not include any
submerged lands below the line of extreme low water. It
begins "at the line of extreme low water" and proceeds
westerly along that line. If it were not for the words
"including all offshore bars, reefs, and islands,” it is
undisputed that the boundary would have followed the
sinuousities of the low water line along the mainland. See
Volume I of the Transcript ("I Tr.”) at 149-50 (testimony of
Mr. Hoffman, an expert in surveying and cartography; see
also 1 Tr. at 136-37). Alaska contends that the phrase
"including all offshore bars, reefs, and islands" simply
includes within the boundary those offshore bars, reefs, and
islands that are above the line of extreme low water. The
19
United States claims and the Master recommends, however
that this phrase establishes as the boundary a single line that
runs along the outer edge of the barrier islands and connects
the endpoints of the islands, thereby including within the
exterior boundary the lands underlying the coastal lagoons."
bo parties submitted a wealth of evidence and argument
= boundary description issue. Alaska will not repeat
entire presentation here, and rests its submission on three
points. First, at the 1980 trial on this issue, the Chief of the
Division of Realty of the Fish and Wildlife Service in the
re paar of Laterior” testified that his predecessor changed
route eens description in the application as initially filed
ine of mean high water to the line of extreme low
water, Tr. at 48-50, "to protect the resources that are v
significant in the intertidal zone." Tr. at 69. He nd
deena, nt, the iment of this change to the boundary
i ge ts the boundary a single line
scien 0 islands and connecting their
* Ironically, both the United States
, and the Master i
a deny that the |
advance asthe seaward boundary ofthe applied for lands is Alas coast ln
Le t purposes, even though the United States’ expert on
tne naary descriptions testified at the 1980 trial on this issue that one standing on
— would not be looking at the open sea of the Arctic Ocean but
mex stasis tes exer i 40 pg
, ce along that portion of the coast which is in direct
ontact the open sea and the line marking the seaward limit of inland
Lands Act purposes.
* See I Tr. at 46.
20
Second, the United States’ expert witness interpreting this
description as establishing a boundary along the outer shore
of the islands and connecting their endpoints conceded that
such a line did not follow “the line of extreme low water"
but, instead, departed from that line in order to cross bodies
of water. I Tr. at 182-83 and 185-87. He also conceded that
his line "is based on a general impression and interpretation
of the language” in the description, id. at 187, even though
several different lines could be drawn under the criteria he
employed and that he would be "the first to admit that some
of these lines do have a bit of subjectivity to them, yes." Jd.
at 190. This violates the principle, described by the
California Supreme Court, that “the law abhors want of
definition in matters of boundary as nature abhors a
vacuum." City of Oakland v. Oakland Water-Front Co., 118
Cal. 160, 177, 50 P. 277, 283 (1897).
Finally, the United States knew how to write a legal
description that, by its terms, included submerged lands
within an exterior boundary when that was its intent. For
example, Executive Order 3797-A, establishing the National
Petroleum Reserve--Alaska, described the seaward boundary
of that pre-statehood withdrawal and reservation as the
"highest highwater mark on the Arctic coast" and went on to
explain that
[t]he coast line to be followed shall be that of 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,
except in the case of Plover Islands . . . where it shall be
the highest highwater mark on the outer shore of the
islands forming the groups and extending between the
most adjacent points of these islands and the sandspits at
21
either end.
See Report at 345-46 (emphasis added).
The legal descriptions in applications for two other
wildlife refuges, moreover, explicitly provided that the
boundaries described were single continuous lines along the
outer shore of islands and connecting their endpoints, and
exterior boundaries. See 19 Fed. Reg. 8076-77 (1954);'° 20
Fed. Reg. 4227-28 (1955).'' The absence of such language
'° This application for what eventually became the Izembek ref
uge (see
Public Land Order 2213, 25 Fed. 12,599-600 (1960)) descri boundary
that ran, in part, from i , “ge
the most northerly point of Cape Glazenap, approximate Lat. 55°16’
168°00': thence N. 52° 30’ E., Tavis ae tie Gee Gheeep toe
Izembek Bay, to a point at low-water line of Glen Island, one of the
Kudlakof Islands: thence northeasterly with the low-water line of Bering Sea,
4.90 miles to a point on the northerly shore of Glen Island at approximate
Lat. 55°19, Long. 162°54'20": thence No. 35° 15’ E., 2.52 miles, across an
inlet to Izembek Bay, to a point on the low-water line of Oper! Island, one of
the Kudlakof Islands; thence northeasterly with the low-water line of Bering
Sea, 8.10 miles to the most northerly point of Operi Island at approximate
Lat. 55°24'30", Long. 162°42': thence due east 3.22 miles, across an inlet to
Izembek Bay, to a point on the southern shore of Neumann Island. thence
northeasterly with the low-water line of Bering Sea, 3.38 miles to the most
northeasterly point of Neumann Island, at approximate Lat. 55°26'50", Long.
162°34'50"; thence N. 71° 00 E., 0.22 mile, across an inlet to Moffet Bay, to
Moffet Point on the Alaska Peninsula .. . (and) 6.63 miles across Cold Bay
19 Fed. Reg. at 8077. The description concluded by noting that it contained
"$00 square miles of land together with /83 square miles of open water.” Id
(emphasis added). (All of that “open water,” it should be noted, was enclosed by
the islands connected by the straight lines crossing the various inlets.)
' This application for a Kuskokwim refuge described a boundary that
” —_S
part, “across the mouth of Hazen Bay,” and stated that it included "1,054 square
miles of lands and waters.” 20 Fed. Reg. at 4228 (emphasis added).
22
in the application at issue here is strong evidence that the
Interior Department did not intend a single exterior boundary
line along the outer shore of the islands and connecting their
Kuskokwim refuges in 1960, after statehood, which
excluded lands subject to the transfer of title to
ications filed prior to statehood could not be included in
we seus afer stathood becouse tle to dheee lande hed passed
to the new State of Alaska under the Submerged Lands Act.
Solicitors Opinion M-36562 (1959) (Ak. Ex. 76). It thus
was appropriate in the post-statehood orders establishing the
Izembek and Kuskokwim refuges to state explicitly that
submerged lands, which had expressly been included within
the boundaries described in the applications, were explicitly
excluded from the lands withdrawn in the orders establishing
the refuges.
The absence of exclusionary language in the ~~
granting the application at issue here simply reflects
absence of inclusory language in the application. As the
Master notes, one would "expect reasonable consistency in
the style of description across different refuges." Report at
491. That is particularly true for the orders establishing these
three refuges, for they all were issued on the same day,
December 6, 1960. Report at 493. Thus, if there had been
any intent to establish a single continuous boundary line in
23
the application at issue here, as there clearly was in the
Izembek and Kuskokwim applications, the same disclaimer
language would have appeared in all three orders. The lack
of such language in the order granting the application at issue
here is strong evidence that it did not describe a single
continuous boundary line along the outer shore of the islands
Under Alaska's interpretation of the boundary description,
tidelands -- the lands between the line of extreme low water
and the high tide line which the United States concedes are
subject to the equal footing doctrine; see United States’ Brief
at 51-53 -- were within the described boundaries. The mere
however, does not mean that they were included so as to
defeat Alaska's equal footing doctrine title. "The mere fact
that the bed of a navigable water lies within the boundaries
described in the treaty does not make the [submerged lands]
part of the conveyed land, especially when there is no
express reference to the [submerged lands] that might
overcome the presumption against its conveyance.”
Montana, 450 U.S. at 554. In Montana, although all of the
disputed riverbed lands were within the exterior boundaries
of an Indian reservation, the treaty creating the reservation
did not defeat State title because it "in no way expressly
referred to the riverbed, nor was an intention to convey the
riverbed expressed in ‘clear and especial words’ or
‘definitively declared or otherwise made very plain.” /d
(citations omitted). The same is true of the application here.
The application's failure to refer explicitly to the tidelands
is particularly significant since virtually contemporaneous
federal actions explicitly referred to tidelands when that was
what was intended. See Public Land Order 1749, 23 Fed.
Reg. 8623 (1958) (Ak. Ex. 73), which withdrew as the
24
Simeonof National Wiidlife Refuge, inter alia, “[a}ll of
Simeonof Islands and its tidelands" (emphasis added), and
the application for an addition of "[a]ll tidelands . . . adjacent
to the Aleutian Islands National Wildlife Refuge" to that
refuge. 23 Fed. Reg. 8163 (Ak. Ex. 74) and 9039 (1958). As
the Master notes,
the Fish and Wildlife Service in Washington regularly
reviewed, and often modified, the boundary descriptions
received from its regional offices. One should therefore
expect reasonable consistency in the style of descriptions
across different refuges.
Report at 491 (citation to Tr. omitted). These pre-statehood —
federal actions expressly referred to tidelands while the
contemporaneous application at issue here does not. The
only reasonable inference is that tidelands were not included
in the latter, for a court must not infer an intent to include the
tidelands “unless the intention was definitely declared or
otherwise made plain, or was rendered in clear and especial
words, or unless the cla'm confirmed in terms embraces the
land under the waters the stream,” the legal equivalent of the
tidelands here. Montana, 450 U.S. at 552 (quotations and
citations omitted).
25
exclude the tidelands simply reflects the fact that it was not
intended to, and did not, include tidelands in the applied for
lands.
In short, the United States has not established that
"Congress clearly intended to include land under navigable
waters within the federal reservation" as required by the first
prong of the Utah test. Utah, 482 U.S. at 202. Thus, the
filing of the application for withdrawal at issue did not defeat
Alaska's submerged lands entitlement under the equal
footing doctrine.
C. There is no evidence that Congress affirmatively
intended to defeat Alaska's equal footing doctrine
title to tidelands within the boundaries described
in the application, much less the disputed
submerged lands below the line of extreme low
water.
The United States points to nothing in the Alaska
Statehood Act or its legislative history even intimating that
Congress “affirmatively intended to defeat" Alaska's title to
equal footing doctrine lands, the second prong of the Utah
test. Utah, 482 U.S. at 202. That i. understandable, for the
legislative history of the Alaska Statehood Act reveals a
congressional intent not to defeat Alaska’s equal footing
doctrine title. Instead, the legislative history establishes that
Congress intended to ensure that Alaska joined the Union on
an equal footing with respect to submerged lands title in fact
as well as in concept.
In hearings on Alaska statehood, both members of
Congress and representatives of federal executive branch
agencies discussed the equal footing doctrine and its
Statutory codification in the Alaska Right-of-Way Act of
26
May 14, 1898, ch. 299, 30 Stat. 409 (formerly codified at 48
U.S.C. § 411; current version primarily codified at 43 U.S.C.
§§ 942-1 to 942-9 (1986)). A Justice Department official
recommended that no private title be permitted to tidelands
because that would be "contrary to the public policy of the
United States” and specifically contrary to the 1898 Act
which provided that lands underlying navigable waters in the
Territory of Alaska "shall continue to be held by the United
States in trust for the people of any State or States which
may hereafter be erected out of said Territory." 1954 Senate
Hearings at 215-16. Subsequent discussion revealed that
both the Committee and the federal officials advising it
understood the historical background of the doctrine and that
the act admitting Alaska to the Union did not need any
specific language to accomplish that result. Id. at 223-25. .
The Committee adopted the language now appearing in
~ section 1 of the Alaska Statehood Act that describes Alaska
as consisting of “all the territory, together with the territorial
waters appurtenant thereto, now included in the Ternitory of
Alaska . . . to include, if inclusion be necessary, the lands
beneath inland navigable waters of the State.": 1954 Senate
Hearings at 280 (emphasis added). The Committee
considered the 1898 Act “a declaration with respect to
reservation for a future State of rights in navigable waters,
id. at 281 (comment by Senator Cordon), and a “reservation
for the future State of Alaska by a Federal statute," /d.
(comment by Senator Daniel). Senator Jackson wrapped up
the discussion by making clear his intent, concurred in by the
Committee, that Alaska receive title to all the submerged
s Ralph Barney was the Chief, Indian Claims Branch, Lands Division,
Department of Justice. Alaska Statehood: Hearings on S. 50 before the Senate
Committee on Interior and Insular Affairs, 834 Cong., 2d Sess. ("/954 Senate
Hearings”) Il (1954).
27
lands within its boundaries:
Senator JACKSON. May I ask this question? Is there
any Federal dominion outside of the geographical
boundaries of the Territory of Alaska, outside the
hical | laries?
Senator JACKSON. My only reason for the question is
that / want to make sure that we are in effect conveying
everything there is up there [in terms of submerged
lands], as far as the overall boundary lines are
concerned, to the new State; everything in that area
insofar as the geographical boundary lines are
concerned.
Id. at 282 (emphasis added).
The 8Siii Congress that enacted the Alaska Statehood Act
also recognized that the United States held the submerged
lands for the benefit of the new State. S. Rep. No. 1720,
85th Cong., 2d Sess. (1958), reprinted in 2 1958 U.S. Code
Cong. & Admin. News 2893, 2899; S. Rep. No. 1045, 85th
Cong., Ist Sess. (1957), reprinted in 2 1957 U.S. Code Cong.
& Admin. News 1933. It fully understood that "if Alaska
goes into statehood [it] would get 100 percent of the
navigable waters.""" Hearings before the Subcommittee on
" The Master concludes that the "100 percent” did not refer to what
submerged lands Alaska would receive at statehood but to what the new State's
share of royalties would be under the bill being considered. Report at 436 n.75.
Only if Alaska received title to the lands upon admission, however, would it
receive /00 percent of the royalties. If admitted to statehood, Alaska at that
point would have received only the same 37 1/2 percent share of oil and gas
revenues from federal lands that other States received under section 35 of the
Mineral Leasing Act of 1920, 30 U.S.C. § 191 (1940). In section 28(b) of the
Alaska Statehood Act, Congress amended section 35 of the Mineral Leasing Act
to provide that Alaska would receive an additional 52 1/2 percent of oil and gas
28
Territories of the Senate Committee on Interior and Insular
Affairs, 85th Cong., Ist Sess. (1957), reprinted in Alaska
Submerged Lands: Hearings on H.R. 8054 before the Senate
Committee on Interior and Insular Affairs, 85th Cong., 2d
Sess. 117, 124 (1957).
Finally, Congress expressed considerable displeasure that
the beneficial effects of the public lands laws in Alaska had
been "vitiated . . . through the creation of tremendous federal
reservations." H.R. Rep. No. 624, 85th Cong., Ist Sess. 6
(1957). More than one-fourth of Alaska -- approximately 95
million acres'* -- was included in those withdrawals and
reservations. Jd. Much of the remaining area "is covered by
glaciers, mountains, and worthless tundra." /d The
extensive withdrawals "might well embrace a preponderance
of the more valuable resources needed by the new State . ‘a
to support itself and its people." Jd. Although the committee
could not make a detailed survey of each one, it was
"strongly of the opinion that a considerable number of [them]
are either excessive in size or totally unnecessary." /d. at 8.
Had Congress believed that one or more of these withdrawals
ownership of those submerged lands justified abandoning its
consistent policy of holding the lands for the benefit of a new
State, it would have said so but did not.
revenues from lands retained by the United States in recognition of the fact that,
unlike the other States, Alaska received no benefits under the Reclamation Act of
1902 into which $2 1/2 percent of federal oil and gas revenues otherwise would
be deposited. See H.R. Rep. Mo. 624, 85th Cong., Ist Sess. 23 (1957). The
point, however, is that only if Alaska received sitle to the lands at statehood
would it receive. /00 percent of the royalties.
'* This is only slightly smaller than the land area of California. See 2 Aaron
L. Shalowitz, Shore and Sea Boundaries 477 (U.S. Dept. of Commerce Pub. 10-
1, 1964) (The total area of California is 158,693 square statute miles. There are
640 acres to a square mile, producing an area expressed in acres of 101,563,520).
29
All of this legislative history is flatly inconsistent with an
affirmative congressional intent to defeat Alaska's equal
footing doctrine title to submerged lands. Indeed, it
establishes precisely the opposite: Congress affirmatively
intended that Alaska take title to al// submerged lands within
its boundaries as an incident of statehood.
In any event, the United States has not established that
"Congress affirmatively intended to defeat the future State's
title" as required by the second prong of the Utah test. Utah,
482 U.S. at 202. For this reason, too, the filing of the
application for the withdrawal at issue here did not defeat
Alaska's submerged lands entitlement under the equal
footing doctrine.
Il. The application did not defeat Alaska's submerged
lands entitlement under the Submerged Lands
Act.
A. The principles the Court established in the equal
footing doctrine cases apply equally to offshore
submerged lands not subject to the doctrine.
In briefing its exception, the United States virtually
ignores this Court's equal footing doctrine jurisprudence.
Instead, it focuses its argument almost exclusively on the
Submerged Lands Act, claiming that the Court should apply
as strong a presumption in favor of continued federal
ownership of lands subject to the Act as it applies in favor of
the States for lands subject to the equal footing doctrine.
United States’ Brief at 34. It also argues that the Court
should view the Submerged Lands Act grant no differently
than any other statutory federal grant, and should strictly
construe it in favor of the United States. Jd. at 36. The
30
United States is wrong on both counts.
Congress intended the same presumption of State
ownership to apply to lands granted by the Submerged Lands
Act and lands subject to the equal doctrine. The Submerged
Lands Act was Congress's direct response to this Court's
holding in the 1947 California decision, that the equal
footing doctrine did not apply to offshore submerged lands
within State boundaries. "The very purpose of the
Submerged Lands Act was to undo the effect of this Court's
1947 decision in United States v. California, 332 U.S. 19,"
United States v. California, 436 U.S. 32, 37 (1978) (the
"1978 California case") -- i.e., to rewrite the law as found by
the Court in the 1947 California decision and apply the
Pollard :qual footing doctrine rule of State ownership to
offshore submerged lands within State boundaries.
Congress's purpose here was twofold. First, it intended to
grant offshore submerged lands within State boundaries to
the coastal states. Congress did not intend a merely
gratuitous grant, however. Instead, it intended the grant to
reflect the law as it had been believed to be prior to the
Court's 1947 California decision. Second, Congress
intended to prevent further erosion of the equal footing
doctrine by either the federal executive or this Court.
Congress noted that the United States Attorney General had
vigorously attacked the rational of this Court's equal footing
doctrine cases in the 1947 California decision and that the
Court had the power to overrule those cases and might well
do so if Congress did not prevent it legislatively
Consequently, Congress sought "to preserve the status
quo as it was thought to be prior to the California decision,"
H.R. Rep. No. 1778, 80th Cong., 2d Sess. 2 (1948),
reprinted in 2 1953 U.S. Code Cong. & Admin News 1385,"
'S "The legislative history of all the bills considered prior to enactment of the
31
and "to confirm and establish the rights and claims of the 48
States, long asserted and enjoyed with the approval of the
Federal Government, to the lands and resources beneath
navigable waters within their boundaries." /d at 3; S. Rep.
No. 1592, 80th Cong., 2d Sess. 5 (1948). Before the 1947
California decision, this Court's decisions had reflected State
ownership of offshore submerged lands, as had decisions of
lower federal and State courts and of the Attorneys General
of the United States and federal agencies for 160 years;
lawyers, legal publicists, and those claiming title under State
authority "accepted this principle as the well-settled law of
the land." H. R. Rep. No. 1778 at 4; S. Rep. No. 1592 at 5.
"(T]he Court by its [1947 California] decision not only
established the law differently from what eminent jurists,
lawyers, and public officials for more than a century had
believed it to be, but also differently from what the Supreme
Court apparently had believed it to be." H.R. Rep. No. 1778
at 6; S. Rep. No. 1592 at 7.
The committee recognizes that it is within the province of
the Supreme Court to define the law as the Court believes
it to be at the time of its opinion. However, the Supreme
Court does not pass upon the wisdom of the law. That is
exclusively within the congressional area of national
power. Congress has the power to change the law, just as
the Supreme Court has the power to change its
interpretation of the law by overruling pronouncements in
Submerged Lands Act in 1953 is directly relevant to the latter Act” since the
purposes were substantially similar, all prior hearings on predecessor bills were
expressly incorporated into the record during hearings on the final bills, and
similar references were made on the floor of Congress. Louisiana, 363 U.S at 17
n.16. Some of the following legislative history of the Submerged Lands Act was
noted by the Court in that case, id at 18-19 n.17.
32
its former opinions which have been accepted as the law
of the land. Therefore, in full acceptance of what the
Supreme Court has now found the law to be, Congress
may nevertheless enact such legislation as in its wisdom it
deems advisable to solve the problems arising out the
decision.
Indeed, the power of the Congress to establish the law for
the future as it was formerly believed to be, was, in effect,
recognized by the Court in the California case .. . .
H.R. Rep. No. 1778 at 6 (emphasis added); S. Rep. No. 1592
at 7-8 (emphasis added). As the Court's decision left the
status of offshore submerged lands unclear, "Congress
should now remove all doubt about the titles by ratifying and
confirming the title long asserted by the various States."
H.R. Rep. No. 1778 at 8-9; S. Rep. No. 1592 at 10.
The rationale of the so-called [Pollard] inland water rule
was vigorously attacked by the Attorney General of the
United States in the California case, Although he did not
ask that it be overruled, he did state that "the tidelands and
inland waters rule is believed erroneous.”'"*!
The Supreme Court has as much power to overrule its
prior decisions laying down the inland-water rule as it had
power to change its belief regarding ownership of the
‘© The Deputy Solicitor General representing the United States before the
Master in this case shared this view, stating that “alas, our Supreme Court went
astray in the 1840's” when it established the equal footing doctrine rule of State
ownership in the “dubious” Pollard decision. L.F. Claiborne, Federal-State
Offshore Boundary Disputes: The Federal Perspective, Law of the Sea Eighteenth
Annual Conference (1984), reprinted in The Developing Law of the Oceans 360-61
(R. Krueger and S. Riesenfeld, eds., 1985).
33
marginal belt within the boundaries of the States; and it
may well do so in view of its holding in the California
case, unless Congress acts to establish the law for the
future.
H.R. Rep. No. 1778 at 12; S. Rep. No. 1592 at 14 (footnote
omitted) (emphasis added).
The repeated assertions by our highest Court for a period
of more than a century of the doctrine of State ownership
of all navigable waters, whether inland or not, and the
universal belief that such was the settled law, have for all
practical purposes established a principle which the
committee believes should as a matier of policy be
recognized and confirmed by Congress as a rule of
property law. :
H.R. Rep. No. 1778 at 16 :
1592 at 18 (emphasis Sn aa added); S. Rep. No.
Here we have the broad question whether Congress
should confirm or whether it should reverse the traditional
and long-accepted practice that submerged lands within a
| State's boundary and all resources therein belong in a
Proprietary sense to the States, subject, of course, to all
powers delegated to the United States by the Constitution.
This far-reaching historic- policy should be reversed only
if the national interest demands reversal. The committee
is of the opinion that not only will the public interest be
best served by confirming the rights of the States but that
common Justice and equity require such action.
H.R. Rep. No. 1778 at 17; S. Rep. No. 1592 at 19-20.
34
Finally, it is the intent and purpose of this bil! to establish
the law for the future so that the rights and powers of the
States and those holding under State authority may be
preserved as they existed prior to the decision of the
Supreme Court of the United States in the California case.
H.R. Rep. No. 1778 at 24 (emphasis added); S. Rep. No.
1592 at 26 (emphasis added).
The transfer of the United States’ interest in both lands
underlying inland navigable waters and offshore submerged
lands in the Act
merely fixes as the law of the land that which, throughout
our history prior to the Supreme Court decision in the
California case in 1947, was generally believed and
accepted to be the law of the land; namely, that the
respective States are the sovereign owners of the lands
beneath navigable waters within their boundaries and of
Therefore, Title Il recognizes, confirms, vests, and
establishes in the States title to the submerged lands
which they have long claimed, over which they have
always exercised all the rights and attributes of
ownership.
ELR. Rep. No. 695, 82d Cong., Ist Sess. 5 (1951), reprinted
in 2 1953 U.S. Code Cong. & Admin. News 1395. The areas
"sovereign owners” of submerged lands, of course, included
both lands beneath navigable in.and waters and offshore
submerged lands. /d.
35
Congress included both categories of lands within the
Act's purview
because they have been possessed, used, and claimed
the States under the same rule of law, to wit: wp
States own all lands beneath navigable waters within their
respective boundaries.
The rule was stated by the Supreme Court in the
early
case of Pollard v. Hagan (3 How. 212, 229 (1845)) .. . .
ee ee anaes
the Supreme Court in the past has indicated its belief
ro phn egmeaereR applies equally
under navigable waters within State boundaries,
whether inland or seaward . . . .
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
7 ei ne Roar ct og cyt
powers de to the Uni
ae ent legated United States
S. Rep. No.133, 83d Cong., Ist Sess. 7-8 (195
. be . 3
2 1953 U.S. Code Cong. & Admin. cone 9608. > tot
eee eae within
ma ope ane in the public interest," id at 5; H.R.
- . 215, 83d Cong., Ist Sess. 5 (1953), reprinted in 2
3 US. Code Cong. & Admin. News 1385, a principle
explicitly embodied in section 3(a) of the S
Act, 43 U.S.C. § 1311(a). —
er Le Nee paaile Gxt te
nited States had paramount rights to offshore submerged
lands, United States v. Maine, 420 U.S. 515, 524 (1975),
36
onl in the sense that it accepted the Court's statement of the
4 It did not accept the consequences of the decision, and
acted to reverse them by returning the law to what it was
thought to be prior to the decision. ba
Te law believed to apply to submerged lands within
State boundaries, the law that Congress in the Submerged
Lands Act wrote for the future, was the body of law that had
from this Court's equal footing doctrine cases.
Under that law, as noted above, there is a strong presumption
in favor of State title. Utah, 482 U.S. at 197-98 and cases
cited therein. To effectuate Congress's determination that
State ownership of submerged lands both onshore and
offshore is in the public interest,"’ its intent that State
ownership "be recognized and confirmed by Congress as rule
of property law,""* and its purpose “to write the law for the
future as the Supreme Court believed it to be in the past,
this same presumption in favor of State title must be applied
to offshore submerged lands under the Submerged Lands Act
grant to the States.”
43 U.S.C. § 1311).
" HR. Rep. No. 1778, 80th Cong., 2d Sess. at 16; S. Rep. No. 1592, 80th
Cong., 2d Sess. at 18.
* S Rep. No. 133, 83d Cong., Ist Sess. at 8.
® The Court in California ex rel. State Lands Comm'n v. United States, 457
US. 273, 287 (1982), stated that its reading of the Submerged Lands Act in that
case “adheres to the principle that federal grants are to be construed strictly in
favor of the United States.” As is clear on its face, that statement was not
essential to the decision. it therefore is dictum and “not controlling.
Humphrey's Ex'r v. United States, 295 U.S. 602, 627 (1935); see also Cohens v.
Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821). In that case, moreover, California
sought to quiet title to 184 acres of oceanfront accretions to a Coast Guard
37
Thus, in the 1978 California case, the Court held that the
federal withdrawal and reservation of a one-mile belt of tide
and offshore submerged lands (not lands underlying inland
navigable waters) around the Anacapa Islands in the Santa
Barbara Channel did not defeat California's Submerged
Lands Act title to those lands. 436 U.S. at 39-40. The United
States relied on a section 5(a) exception to the Act's grant for
“any rights the United States has in lands presently and
actually occupied by the United States under claim of right."
Id. at 38. The Court held that this "claim of right" exception
did not reach the disputed lands because the reservation of
the lands did not change the nature of the government's
claim, id at 40-41, implicitly rejecting the dissent's argument
that the intent of the exception was to reach submerged lands
that were "actually occupied." Strictly construing the section
5(a) exception in the 1978 California case against the United
States and in favor of California was manifestly consistent
with Congress's intent, and is the approach that should be
followed here as well.
Both the 1978 California case and this case call for
application of the Court's oft-stated rule that the party
claiming the benefit of an exception must establish that the
exception applies: “When a proviso like this carves an
exception out of the body of a statute or contract, those who
set up such exception must prove it." Clemente Javierre v.
Central Altagracia, Inc., 217 U.S. 502, 508 (1910) (citations
omitted); accord United States v. First City Nat'l Bank of
Houston, 386 U.S. 361, 366 (1967). Any other rule would
require the individual States to demonstrate affirmatively
in that case is every bit as much the product of “peculiar circumstances” as was
the decision in Choctaw Nation. |t should be limited to its facts.
38
that the exceptions to the Submerged Lands Act do not
apply. "Since as a practical matter it is never easy to prove a
negative,” Elkins v. United States, 364 U.S. 206, 218 (1960),
such a rule would impose a heavy burden on the States to
disprove a claim by the United States -- whether supported
by evidence or not - that it had “expressly retained”
submerged lands at the time the State was admitted to the
Union.
The exception in section 5(a) of the Submerged Lands Act
on which the United States relies, moreover, is for lands
"expressly retained by or ceded to the United States when the
State entered the Union.” 43 U.S.C. § 1313(a). “In matters
of statutory construction the duty of this Court is to give
effect to the intent of Congress, and in doing so our first
reference is of course to the literal meaning of words
employed.” Flora v. United States, 357 U.S. 63, 65 (1958).
The requirement that lands be “expressly retained” at
minimum would seem to require affirmative evidence that an
intent to retain "was definitely declared or otherwise made
very plain, or was rendered in clear and especial words, or
unless the claim confirmed in terms embraces the land."
That is precisely the formulation required for showing an
intent to defeat State title under the equal footing doctrine.
Utah, 482 U.S. at 198.
For these reasons, the Court should not presume that the
United States retained title to offshore submerged lands and
therefore resolve any doubts in its favor. To effectuate
Congress's intent, the Court must apply the same strong
presumption in favor of State title under the Submerged
Lands Act as it applies to tidelands and lands underlying
inland navigable waters under the equal footing doctrine. As
the United States has not overcome that presumption, see
part I supra, its exception must be rejected.
39
B. The application did not defeat Alaska's title even
under the United States' statutory analysis.
The United States claims that Congress "express
retained” the lands subject to the application in section 6(e)
of the Alaska Statehood Act within the meaning of the
exception to the Submerged Lands Act grant in section 5(a)
of the Submerged Lands Act, 43 U.S.C. § 1313(a). This
Oe en Seen aa Ge tage elias of
application, the function and purpose of section 6(e) of
the Alaska Statehood Act, and the language and intent of the
Submerged Lands Act section 5(a) exception.
Section 5(a) excepts from the Submerged Lands Act grant
to the States, inter alia, “all lands expressly retained by
the United States when the State entered the Union... . "
The United States contends that the "application had the
legal effect of designating ‘lands withdrawn or otherwise set
apart as refuges or reservations for the protection of wildlife’
for purposes of section 6(¢) of the Alaska Statehood Act,"
and section 6() in turn “expressly retained” those lands at
the time of statehood within the meaning of section 5(a) of
“aa eee United States’ Brief at 39.
Section 6(e Alaska Statehood i
wit Act provides in
_ All real and personal property of the United States
situated in the Territory of Alaska which is specifically
used for the sole purpose of conservation and protection
of the fisheries and wildlife of Alaska, under the
provisions of the Alaska game law . . . and under the
provisions of the Alaska commercial fisheries laws .. .
shall be transferred and conveyed to the State of Alaska
40
by the appropriate Federal agency: . . . Provided, that
such transfer shall not include lands withdrawn or
otherwise set apart as refuges or reservations for the
protection of wildlife... .
A mere application for a withdrawal for a refuge or
reservation neither withdrew nor otherwise set apart any
lands as a refuge or reservation. As the United States notes,
the legal effect of an application was to
temporarily segregate such lands from settlement,
location, sale, selection, entry, lease, and other forms of
disposal under the public land law, including the mining
and the mineral leasing laws, to the extent that the
withdrawal or reservation applied for, if effected, would
prevent such forms of disposal.
United States’ Brief at 41, citing 43 C.F.R. § 295.11(a) (1958
Supp.).
The United States fails to mention the final sentence of
that regulation, which states: “Such temporary segregation
shall not affect the administrative jurisdiction over the
segregated lands." 43 C.F.R. § 295.11(a) (1958 Supp.).
Under that provision, the application did not transfer
administration of the lands to the applying agency and the
lands were not withdrawn or otherwise set apart as a refuge
or reservation within the meaning of section 6(e).
The United States objects to this “formalistic distinction
between setting apart land ‘as’ a refuge, as opposed to ‘for the
purpose of a refuge.” United States’ Brief at 42. That
distinction, however, is central to the proper application of
section 6(e). Interior Secretary Chapman proposed the
language of section 6(e) in 1950. Report at 465-66 n.17. He
41
explained that the exception to the transfer of land to Alaska
would apply only to "the Pribiloff islands, and over all other
Federal lands and waters in Alaska which have been set aside
as wildlife refuges or reservations Pursuant to the fur seal
and sea otter laws, the migratory bird laws, or other Federal
Statutes of general application." Id. at 466 n.17 (emphasis
added), quoting Secretary Chapman's April 20, 1950, letter
to Senator Mahoney, chairman of the Senate Committee on
Interior and Insular Affairs, S. Rep. No. 1929, 81st Cong., 2d
refuges or reservations,” S. Rep. No. 1163, 85th
Sess. 17 (1957) (emphasis added), to "withdrawn ee
in general wildlife and fisheries research activities," H.R.
Rep. No. 624, 85th Cong., Ist Sess. at 19 (emphasis added)
to "wildlife refuges," S. Rep. No. 1028, 83d Cong. 2d Sess,
at 31, and to "withdrawn wildlife refuges or reservations
[and] facilities utilized therewith." H.R. Rep. No. 675, 83d
Cong., Ist Sess. 17 (1953). Acting Interior Secretary
Chilson interpreted the exception as applying only to
[I]ands withdrawn or otherwise reserved for research
activities relating to fisheries or wildlife.” S. Rep. No. 1163,
85th Cong., Ist Sess. at 33 (emphasis added); H.R. Rep. No
624, 85th Cong., Ist Sess. at 24 (emphasis added). 7
Indeed, there is no evidence that Congress even knew that
the application at issue here had been filed. The United
States erroneously claims that "the Secretary of the Interior
informed Congress of pending application, and he
embracing submerged lands." United States’ Brief at 50
citing United States’ Exhibit ("U.S. Ex.") 61. As the Maste,
explained, however, U.S. Ex. 61 does not show the area
subject to the application. Instead, it shows a much earlier
42
completed withdrawal and reservation, Public Land Order
82, Report at 483-84 n.34, which in 1943 withdrew and
reserved the entire North Slope of Alaska and reserved the
minerals therein "for use in connection with the prosecution
f World War Il." Jd. at 452 n.7. :
: The United States also quotes the Master out of context in
claimi that, "[aJs the Master acknowledged, Members of
for which the application was filed in the
srepative history ofthe Alaska Statehood Act Id. at 466-67
n.18. The first pre-dated the November 1957 filing of the
application at issue here, and tis could not have given
Congress a basis for considering the applied for lands
the House Committee on
rns ee Ist Sess. 447 and
482-84 (1957). The second merely indicates that [s}teps
already have been taken to withdraw” the lands subject to the
application at issue here, but gives no indication what those
steps were and thus also gave Congress no basis for
considering the applied for lands covered by section 6(e).
Thus, there is in fact no evidence from which Congress
“might have considered” section 6(e) broad enough to cover
the lands covered by this application.
43
Shortly after statehood, moreover, the Deputy Solicitor of
Interior addressed a question strikingly similar to that
presented here. Solicitor’s Opinion M-36562, (1959) (Ak.
Ex. 76). A pre-statehood application sought the withdrawal
and reservation of tidelands as an addition to the Aleutian
Islands National Wildlife Refuge. Jd at 2. The Deputy
Solicitor concluded that the applied for tidelands "clearly are
within the areas to which the Submerged Lands Act of 1953
applies," and that the Act "with certain exceptions not
pertinent here" transferred all of the United States’ right, title,
and interest to the State. Jd at 3. He noted that the
temporary segregation of lands under the administrative
regulations governing such applications was "not equivalent
in effect to a Secretarial order [withdrawing the lands]" and,
as a result, "the Secretary no longer has the jurisdiction over
those areas necessary to effectively withdraw any portion of
them for a wildlife refuge or as an addition to an existing
one." Jd. at 2-3. The Deputy Solicitors contemporaneous
administrative construction of an application's legal effect
under the regulations on the new State of Alaska's
submerged lands entitlement under the Submerged Lands
Act is entitled to considerable deference by this Court. Watt,
451 U.S. at 272-73.”
Because lands subject to an application were not
withdrawn or set apart as a refuge within the meaning of
section 6(e) of the Alaska Statehood Act, they thus were not
* A later Interior Solicitor “overruled” this 1959 contemporaneous
administrative construction of the effect of the application under the
on Alaska's submerged lands entitlement in 1978. 86 Interior Dec. 151, 175-76
(1978). As in Wazt, “[t}he Department's current interpretation, being in conflict
with its initial position, is entitled to considerably less deference” and. as it did
there, the Court should find the new position “wholly unpersuasive.” 451 U.S. at
273 (citation omitted).
44
j the section 5(a) exception to the Submerged Lands
soem: lends “expressly retained” by the United States at the
purpose of the ['expressly retained’] language is to reserve to
the United States those facilities and those areas which are
used by the Government in its governmental capacity for Sve
or more of its governmental purposes. 99 Cong. Rec.
The United States makes an even more fundamental error
in relying on section 6(e) of the Statehood Act as an “express
w tention" of submerged lands under the Submerged Lands
Act. Congress included section 6(e) in the Statehood Act to
transfer property used for fish and wildlife management fo
Alaska, not to retain property:
All real and personal property of the United States
situated in the Territory of Alaska which is specifically
used for the sole purpose of conservation and protection
of the fisheries and wildlife of Alaska, under t
provisions of the Alaska game law . . . and under the
provisions of the Alaska commercial fisheries laws . . .
shall be transferred and conveyed to the State of Alaska
by the appropriate Federal agency ... .
(Emphasis added.) Congress only excepted lands
"withdrawn or otherwise on poy enorme
from this specific grant of property to the new
section 6(e) - "such transfer shall not include lands
withdrawn or otherwise set apart as refuges or reservations,
45
Id. (emphasis added) -- and not from the grant of submerged
lands to Alaska under section 6(m), which applied the
Submerged Lands Act to the new State.
Congress "expressly retained" no submerged lands in the
Alaska Statehood Act. The United States cites nothing in
Act or its legislative history even intimating a congressional
intent to retain some of the submerged lands that otherwise
would be transferred to the new State under the Submerged
Lane's Act, much less "expressly" articulating such an intent.
Indeed, the legislative history clearly indicates that Congress
affirmatively intended all submerged lands in Alaska,
including those offshore, to go to the new State upon
admission. The Alaska Right-of-Way Act provided in part
that title to the beds of navigable waters within the Territory
of Alaska “shall continue to be held by the United States in
trust for the people of any State or States which may
hereafter be erected out of said [Territory]" and defined the
term “navigable waters” as including "all tidal waters up to
the line of ordinary high tide." 30 Stat. at 409. Senator
Daniel noted that Congress had used this Act in discussions
on the Submerged Lands Act to show "that Congress
recognized the States should own such lands,” that they had
been reserved by Congress in 1898 for the future State of
Alaska, and that the 1898 reservation included "lands
covered by territorial waters." 1/954 Senate Hearings at 281.
This is not to say that Congress did not consider imposing
some limitations on the new State of Alaska's Submerged
Lands Act grant. A Senate Committee adopted a proviso to
the section applying the Submerged Lands Act to Alaska that
would have required the aew State to permit timber
companies to use surface waters for timber operations in the
Tongass National Forest in Southeast Alaska. See S. Rep.
No. 1163, 85th Cong., Ist Sess. 20 (1957). Even that limited
46
{ “retention,” however, one which addressed only the
water surface and not the submerged /ands, was not included
in the Alaska Statehood Act as enacted.
Accordingly, purely as a matter of statutory construction,
the Master's determination that the application did not defeat
Alaska's submerged lands entitlement under the Submerged
Lands Act was correct.
’s admission
Ill. Congress could not condition Alaska’s
to the Union on the State’s relinquishment of its
entitlement to equal footing doctrine lands.
The United States’ argument that Congress demonstrated
an intent to defeat the State's title to the submerged lands at
issue through a provision of the Alaske. Statehood Act is
retain sovereign equal footing doctrine lands as a condition
of statehood. The equal footing doctrine prohibits the United
States’ retention of submerged lands in a statehood act.
As the State argued in its opening brief, this Court has
long considered provisions of a statehood act that purport to
condition the new State's admission to the Union on a
retention by the United States of a part of the new State's
sovereignty to violate the equal footing doctrine, see Alaska's
Brief at 66-70, and Alaska will not repeat that entire
discussion here. The point, howev™ applies equally to the
47
discussion of Pollard in Corvallis Sand & Gravel, 429 U.S.
at 374 ("[t]he Court established the absolute title of the
States to the beds of navigable waters, a title which neither a
provision in the Act admitting the State to the Union nor a
grant from Congress to a third party [after statehood] was
capable of defeating." (footnote omitted)). The Court
reaffirmed and extended this rule in Coyle, 221 U.S. 559,
holding that a limitation on Oklahoma's sovereign power to
determine the location of its capital imposed in the statehood
act as a condition of admission was invalid because the
Constitution requires that all new states be admitted with all
the powers of sovereignty and jurisdiction that pertain to the
original states. Jd. at 566-74.
The United States’ retention of lands underlying navigable
waters as a condition of statehood of necessity would require
that the State enter the Union on less than equal footing.
Assuming for the sake of argument that section 6(e) of the
Alaska Statehood Act demonstrated an affirmative
Congressional intent to defeat Alaska's title to equal footing
doctrine lands, and it did not, it would constitute an
unconstitutional condition to statehood that would be void.
IV. Finally, when an international duty or a public
exigency necessitates federal retention of
submerged lands, the United States' retained
interest should be limited to only those rights
absolutely necessary rather than fee title.
The State argued in its opening brief that in any case
where an international duty or a public exigency necessitates
federal retention of submerged lands, the United States’
retained interest should be limited to only those rights
absolutely necessary to discharge the duty or deal with the
48
limiting the United States’ retained interest to only those
rights absolutely necessary to discharge an international duty
or deal with a public exigency permits the United States to
fulfill its national responsibilities while simultaneously
fulfilling at least some of the State's submerged lands
lands for the protection of wildlife within the
meaning of section 6(e) of the Alaska Statehood Act (which
Alaska disputes), the rights retained by the United States
would at minimum not include the subsurface interests. The
Slope Regional Corporation, a for-profit Alaska Native
corporation organized under the Alaska Native Claims
Settlement Act.” and permitted the corporation to drill
exploratory wells within the ANWR lands. H.R. Rep. No.
104-8, 104th Cong., Ist Sess. 35 (1995).
To accommodate both the United States’ and Alaska’s
legitimate interests, the United States’ retention of any rights
to submerged lands should be limited to the minimum
necessary to fulfill the purpose of the withdrawal and
reservation.
2 Pyb. L. No. 92-203, 85 Stat. 688 (1971) (codified at 43 U.S.C. §§ 1601 er
seq. (1996).
CONCLUSION
The Court should accept the Master's recommendation
reservation of a wildlife refuge in northeast Alaska, not
acted on until long after Alaska's admission to the Union and
the vesting of its submerged lands entitlement, did not defeat
Alaska's title to those lands.
October 1996
Respectfully submitted,
BRUCE M. BOTELHO
Attorney General
Joanne M. Grace
Assistant Attorney General
G. THOMAS KOESTER
JOHN BRISCOE
WASHBURN, Briscoe & MCCARTHY
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