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

Supreme Court, U.S,

FILE OD

NOV 12 1996

No. 84, Original Uy,

IN THE CLERK

Supreme Court Of The Anited

OCTOBER TERM, 1996

UNITED STATES OF AMERICA,

Plaintiff,

v.

STATE OF ALASKA

On The Report Of The Special Master

BRIEF OF THE WILDERNESS SOCIETY, SIERRA CLUB,

ALASKA WILDERNESS LEAGUE, NATIONAL AUDUBON

SOCIETY, PORCUPINE CARIBOU MANAGEMENT

BOARD, ALASKA CENTER FOR THE ENVIRONMENT,

NORTHERN ALASKA ENVIRONMENTAL CENTER AND

TRUSTEES FOR ALASKA AS AMICUS CURIAE

IN SUPPORT OF THE UNITED STATES OF AMERICA

PETER VAN TUYN

Trustees for Alaska

725 Christensen Dr. #4

Anchorage, AK 99501

907/276-4244

Counsel of Record

ERIC JORGENSEN

JANIS SEARLES

Sierra Club Legal

Defense Fund, Inc.

325 4th Street

Juneau, AK 99801

907/586-2751

JAMES B. DOUGHERTY

709 3rd St., SW

Washington, D.C. 20024

202/488-1140

_ a —- ee

IN THE

Supreme Court Of The Hnited States

OCTOBER TERM, 1996

No. 84, Original

UNITED STATES OF AMERICA, Plaintiff,

Vv.

STATE OF ALASKA

On The Report Of The Special Master

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF

This case represents far more than a dispute between

the United States and Alaska over who holds title to certain

lands on Alaska's northern coast. Resolution of the issues

before the Court will determine whether the last remaining

intact Arctic ecosystem is preserved or is reduced to an

industrialized landscape.

To bring to the Court's attention the impacts of its

decision in this case, and exactly how those impacts relate to

the legal arguments presented to the Court by the parties,

seven non-profit environmental organizations and the

Porcupine Caribou Management Board request leave to

submit for the Court's consideration the attached Brief of

Amicus Curiae. Since long before its establishment, movants

have been vocal advocates for the Arctic Wildlife Range and

the protection of the integrity of the Range -- now National

Wildlife Refuge. These issues are central to questions

2

presented to the Court in this case, primari!:; to Question #10

concerning whether the boundary of the ange includes the

disputed lands. Movants thus have an informed perspective

and seek to “to bring{] to the attention of the Court relevant

matter not already brought to its attention by the parties .. .."

Supreme Court Rule 37.1.'

As an initial matter, movants did not file a brief

earlier in these proceedings as it did not appear from the

original briefs on exceptions that the State of Alaska was

going to take exception to the Special Master's

recommendation on Question #10. See Brief for the State of

Alaska in Support of its Exceptions at 5 n.4 (filed August

1996). This question was first excepted to by the State in its

Reply Brief. See Alaska Reply Brief at 16 (filed October

1996). Thus, this is the first opportunity for movants to

submit information to the Court on the primary question for

which they have special expertise. See Supreme Court Rule

37.1 (an amicus brief which does not “bring to the attention

of the Court relevant matter . . . burdens the Court, and its

filing is not favored").

Movants’ special expertise on the issues raised in this

case concerning the Arctic National Wildlife Refuge is well

documented and began long before the Range was

established. In fact, as the Special Master notes, Olaus J.

Murie, then-director of movants The Wilderness Society,

was "the principal conservationist behind the Arctic Wildlife

Range." Report of the Special Master (Report) at 486; see

‘The United States of America consented to the filing of the attached

Amicus Curiae brief. The written consent has been filed with the Clerk

pursuant to Supreme Court Rule 37.3. The State of Alaska, however, did

not consent. Thus, pursuant to Supreme Court Rule 37.3(b), movants

submit this Motion for Leave to File Amicus Curiae Brief.

3

also William O. Douglas, My Wilderness at 10 (1960)

(discussing early 1950's scientific expedition into the Arctic

with Olaus Murie); Debbie S. Miller, Midnight Wilderness

163-65 (1990) (discussing The Wilderness Society's role in

establishment of the Arctic Wildlife Range).

The Sierra Club also played a central role in the

establishment of the Range. In 1957, eight months before

the federal Bureau of Sport Fisheries and Wildlife submitted

its application for establishment of the Range to the Interior

Department, see Report at 447 n.1, the Sierra Club sponsored

a conference on, among other things, a “proposed arctic

reserve.” Midnight Wilderness at 172. As a result of

meetings held at that Sierra Club conference between federal

land-use agency representatives and conservationists, it was

decided that "a proposed Arctic National Wildlife Range,

under [United States Fish & Wildlife Service]

administration” wouid be sought. Jd. This is exactly what

came to pass. See Report at 450 n.3 (quoting Public Land

Order 2214 establishing Arctic National Wildlife Range, 25

Fed. Reg. 12,598 (1960)).

As detailed in the Brief of Amicus Curiae, a primary

reason for the establishment of the Range was the protection

of its incredible wildlife, including the internationally -

important Porcupine Caribou Herd. Movant Porcupine

Caribou Management Board is a joint Canadian and Native

organization which has worked for over a decade to promote

the conservation and protection of the Porcupine Caribou

Herd and its habitat. In performing this function, the Board

draws on the centuries-old expertise of its members

concerning the caribou and the varied habitat upon which it

depends.

All movants have long-standing records of

Participation in issues concerning the Arctic Wildlife Range,

4

now Refuge. For example, The Wilderness Society, Sierra

Club, National Audubon Society, Alaska Center for the

Environment, Northern Alaska Environmental Center and

Trustees for Alaska all have been involved in extensive

litigation concerning proposals to drill for oil in and near the

Arctic National Wildlife Refuge and the impacts of such

drilling on the environment and the Refuge. See, e.g.,

Trustees for Alaska, et al. v. Hodel, 806 F.2d 1378 (9th Cir.

1986) (concerning environmental impacts of drilling in

Refuge); Natural Resources Defense Council, et al. v. Lujan,

768 F. Supp. 870 (D.D.C. 1991) (same); Trustees for Alaska,

et al. v. State, 865 P.2d 745 (Alaska 1993) (impacts to

environment, including the Refuge, of state oil and gas lease

sale immediately offshore of the Refuge at Demarcation

Point); Trustees for Alaska, et al. v. State, 851 P.2d 1340

(Alaska 1993) (impacts to the environment, including the

Refuge, of state oil and gas lease sale immediately offshore

of the Refuge in Camden Bay); Trustees for Alaska, et al. v.

State, 795 P.2d 805 (Alaska 1990) (same).

Finally, movants, including those mentioned above

and the Alaska Wilderness League, have been principal

players in the debate concerning whether drilling should

occur in the Arctic National Wildlife Range. See, e.g.,

Jimmy Carter, Save Alaska -- Again, N.Y. Times, May 18,

1995, Op-ed (former President Jimmy Carter is the Honorary

Chair of the Alaska Wilderness League).

The special expertise movants have developed over

the years relates directly to the Court's consideration of

whether the boundary of the Refuge is a “single continuous

line, following the seaward side of offshore bars, reefs, and

islands and, where it meets rivers, crossing such rivers at

their mouths” as the Special Master recommends, Report at

495, or whether it follows the “sinuosities of the extreme low

a

5

water line along the mainland” including within the

boundary only those “offshore bars, reefs, and islands that

are above the line of extreme low water,” as Alaska would

have the Court decide. Reply Brief for the State of Alaska at

18. This is so because a primary reason movants advocated

for establishment of the Range, and have fought so hard to

protect it from drilling, was to ensure the continued existence

of the incredible wildlife found within its area. As those who

established the Range knew, and as detailed in the attached

Brief, the disputed lands--the coastal lagoons and lands

underlying navigable waters--are absolutely essential habitat

for this wildlife and thus for the purposes for which the land

was originally set aside as a Wildlife Range.’

Consequently, the Court should grant this Motion for

Leave to File Amicus Curiae Brief.

Respectfully submitted,

PETER VAN TUYN

Trustees for Alaska

ERIC JORGENSEN

JANIS SEARLES

Sierra Club Legal Defense Fund, Inc.

JAMES B. DOUGHERTY

November 12, 1996

*Less directly, these same points are relevant to the Court's consideration

of Question #9; whether the application for withdrawal and creation of

the Arctic Wildlife Range effectively withheld from Alaska the disputed

lands. Movants touch only briefly on this point.

i

TABLE OF CONTENTS

INTRODUCTION AND INTEREST OF AMICI CURIAE ........ l

) SUMMARY OF ARGUMENT ......0.........cccccccccesscesseeseeceseseseneeees 3

| a eiidatasianttnneniantnineaminenes 4

. A. The Unique National Values of the Arctic National

Wildlife Refuge Would Be Severely Threatened By

) Conveyance of Submerged Lands to the State................... 4

1. The Arctic National Wildlife Refuge and Its

Nearshore Waters Are an Integrated Ecosystem of

Tremendous National Significance ..................cccccc000- 4

| 2. The National Values of the Arctic National Wildlife

. Refuge Are Threatened By Conveyance to the

| SS LEER ATL AS RON 11

a. Extensive Oil Exploration, Development and

Production Activities Will Occur ..............cccccccc00-. 11

b. The Arctic National Wildlife Refuge Holds

Extraordinary Wildlife, Wilderness, and

Recreation Values Which Will Be Harmed By

Oil Exploration and Development ........................ 13

B. To Protect The Paramount National Interest In Nearshore

Lands Of The Arctic National Wildlife Refuge, This

Court Should Conclude That The Refuge Encompasses

the Disputed Submerged Lands......................ccccececeseseeeeeee 23

1. The Disputed Submerged Lands Are Within the

EE 23

2. The United States Retained Ownership Of The

Submerged Lands Within The Boundaries Of The

Arctic National Wildlife Refuge .................0...ccccc0000. 25

a 28

ii

TABLE OF AUTHORITIES

CASES

Alaska Pacific Fisheries v. United States,

oo 27, 28

Andrus v. Charleston Stone Products Co..,

es GEE earineterdecinmnimmminn 26

California, ex rel. State Lands Comm'n v. United States,

Ge Ge ED ctitiritictenainmimnaniiibititileen 26

Coosaw Mining Co. v. South Caroiina,

ee ey TEED eitinncncndincinnnnstniientintcceniounes 26

Montana v. United States,

CE ee 28

Trustees for Alaska v. State,

TOO Pel BED CABIIID BEDE cccccesscecsrsessesceccssescseses 19

Trustees for Alaska, et al. v. State of Alaska,

Department of Natural Resources,

a 11

United States v. Grand River Dam Authority,

EE 26

United States v. Union Pacific R. Co.,

ESE 26

Utah Division of State Lands v. United States,

4B2 U.S. 193 (1987) ...00cecvccceveeesses--; vtiitahieataiaeaaita 27

Watt v. Western Nuclear, Inc.,

Ge es EE eineninditininiecnntiltibicitenencinnintigmeates 26

STATUTES

Alaska National Interest Lands Conservation Act

SEE 6

NE Le 6, 12

Submerged Lands Act, 43 U.S.C. § 1301 et 25, 27

ADMINISTRATIVE and

LEGISLATIVE MATERIALS

Federal Register

ee ee 5

ee 5

58 Fed. Reg. 12,454 (1993) .oo..ccccccccccccseeees chilies 13

GO Fed. Reg. 9428 (1995) ............ccceccecccecccesceccsccssscsssessess 13

Hearings

102d Cong., Ist Sess. 303 (1991) (testimony of

SE AEE RS 17

Administrative Documents

Federal Outer Continental Shelf Oil and Gas

Lease Sale 71, Final EIS ..................cc0cc000. 16

Federal Outer Continental Shelf Oil and Gas

Lease Sale 91, Fimal EIS ....0..........ccccccccccees 16

Final Finding and Decision of the Director,

State of Alaska Oil and Gas Lease Sale 50

(April 30, 1987).............. 12, 13, 16, 17, 19, 20

Final Finding of the Director, State of Alaska Oil

and Gas Lease Sale 36 ........0.0:.c.crscssscssersesersesssseses 15

iv

State of Alaska, Division of Oil and Gas, Five Year Oil

and Gas Leasing Program, Beaufort Sea Areawide

Lease Sales 1999, 2000, 2001 (July 1996)............ 1]

M. Spindler, U.S. Fish and Wildlife Service, Bird

Populations in Coastal Habitats, Arctic National

Wildlife Range, Alaska (1979) ..........cccccssseeees 10, 20

U.S. Department of the Interior, Arctic National Wildlife

Refuge, Alaska, Coastal Plain Resource

assessment, Report and Recommendation to

Congress and Final Legislative Environmental

Impact Statement (1987)...........-ccereeseeeenneees passim

U.S. Fish and Wildlife Service, A Preliminary Review of

the Arctic National Wildlife Refuge, Alaska

Coastal Plain Resource Assessment: Report

and Recommendation to the Congress of the

United States and Final Legislative Environ-

mental Impact Statement (1995) .............-0+000+ 9, 16

U.S. Fish and Wildlife Service, Arctic National Wildlife

Refuge, Coastal Plain Resource Assessment--Final

Report: Baseline Study of the Fish, Wildlife, and

Their Habitats, vol. I] (1986) ...........ccccccereeeeeeees 7, 21

U.S. Fish and Wildlife Service, Final Arctic National

Wildlife Refuge Comprehensive Conservation

Plan, EIS, Wilderness Review, and Wild River

U.S. Fish and Wildlife Service, Fish Population

Characteristics of Arctic National Wildlife

Refuge Coastal Waters (1988) ..........ccccceceeeereees 17

Vv

BOOKS and PUBLICATIONS

Books

George Collins, The Art and Politics of Park Planning

And Preservation (1980) .......ccccccccccceeeeeeeeeeeeee 18, 23

William O. Douglas, A Wilderness Bill

il ate ela TE 22

William O. Douglas, My Wilderness (1960)............00000.. 2,4

Debbie S. Miller, Midnight Wilderness (1990)...............0... 4

Law Reviews

Collins, Background Information for Use in Connection

With a Proposal for an International Wildlife

Range, 6 U.B.C. L. Rev. 3 (1971).......cccccccccceecceeeeee 4

Findlay, History and Status of the Arctic National

Wildlife Range, 6 U.B.C. L. Rev. 15 (1971)........... 4

Miscellaneous Articles

K.H. Dunton, An Annual Carbon Budget for

an Arctic Kelp Community, Alaskan Beaufort

A TE Re a 9

International Porcupine Caribou Management Board,

Sensitive Habitats of the Porcupine Caribou Herd

I tear dlinliatitins belinettieteiniesiaeti meine 14

T. Kizzia, Confrontation in the North, Defenders,

ee I hrcibiitinithinsactiincnitianttitisithitsasthiniresnneiee 10, 19

L. Lowry and K. Frost, Foods and Feeding of Bowhead

Whales in Western and Northern Alaska,

35 Sci. Rep. Whales Res. Inst. (1984) .................. 19

Brian O’ Donoghue, Oil Development Slows

Caribou Births--Studies, Fairbanks Daily News

Miner, August 17, 1995 ...........0ssssssnsenennennersnnenes

Penny Rennick, ed., Arctic National Wildlife Refuge,

Alaska Geographic, Vol. 20, No. 3 (1993) ........-+++- 4

Steve Rhinehart, Oil Field Caribou Decline; State finds

fewer in Arctic herd, Anchorage Daily News,

October 21, 1995 .......ccccscccscssessssceerennenesenssnssresnsees 15

David Whitney, Alaska Counts on Court, Anchorage

Daily News, April 26, 1996 ..........-.--s-sseserserererses 11

IN THE

Supreme Court Of The United States

OCTOBER TERM, 1996

No. 84, Original _

UNITED STATES OF AMERICA, Plaintiff,

Vv.

STATE OF ALASKA

On The Report Of The Special Master

INTRODUCTION AND INTEREST OF

AMICI CURIAE

No place in America, and perhaps the world, rivals

the Arctic National Wildlife Refuge for its combination of

awesome scenic beauty and its critical biological importance

to the millions of animals who migrate through and across its

landforms. This one place forms the locus of a web of life

whose strands reach quite literally around the planet. It is a

primeval wilderness of unparalleled vastness and abundance.

The Arctic has a strange stillness that no other

wilderness knows. It has loneliness too -- a feeling of

isolation and remoteness born of vast spaces, the

rolling tundra, and the barren domes of limestone

mountains. This is a loneliness that is joyous and

exhilarating. All the noises of civilization have been

left behind; now the music of the wilderness can be

heard. The Arctic shows beauty in this barreness and

in the shadows cast by clouds over empty land. The

beauty is in part the glory of seeing moose, caribou

and wolves living in natural habitat, untouched by

civilization. It is the thrill of seeing birds come

thousands of miles to nest and raise their young.

The Arctic has a call that is compelling. The

distant mountains make one want to go on and on

over the next ridge and over the one beyond. The call

is that of a wilderness known only to a few. This is

not a place to possess like the plateaus of Wyoming

or the valleys of Arizona; it is one to behold with

wonderment. It is a domain for any restless soul who

yearns to discover the startling beauties of creation in

a place of quiet and solitude where life exists without

molestation by man.

William O. Douglas, My Wilderness 9-10 (1960).

The Arctic Refuge and its wild inhabitants, until now

having avoided the encroachment of industrial development,

are in great jeopardy. The State of Alaska plans to move

forward with oil exploration within or on the edge of the

Refuge if its claim to submerged lands in this case is granted.

Those plans endanger the wilderness and wildlife of the

Refuge, including the spectacular Porcupine Caribou Herd.

The Refuge and its submerged lands so critical to wildlife

belong to the American people and must be protected as a

part of our great national heritage.

This brief is submitted on behalf of organizations

whose collective mission is to protect nature from the most

serious threats it faces. The instant litigation is a thin veil

holding in abeyance what is undoubtedly the greatest single

threat now facing this last vestige of America’s wild lands.

On behalf of more than one million Americans who have

joined together in defense of the national heritage, the named

organizations submit this brief as amici curiae in support of

the United States. A fuller statement of amici's interest is

found in the accompanying Motion for Leave to File Amicus

Curiae Brief.

SUMMARY OF ARGUMENT

1. The Arctic National Wildlife Refuge is a unique area of

unparalleled value to the American public. Its nearshore and

offshore disputed lands are central to the continued healthy

functioning of the Refuge and to the values the United States

intended to preserve when it retained the area, which include

wildlife, recreation and wilderness. Federal ownership of the

lands is necessary to protect that national public interest and

fulfill the very purposes for which the lands were retained.

2. Ownership of the disputed lands by the State of Alaska

and concomitant oil exploration activities would impair the

wildlife, wilderness, and recreation values which the United

States sought to protect in creating the Refuge.

3. The Range boundary drawn by the United States reflected

consideration of the national values embodied in the area and

included the disputed lands. To protect the national interest

in these lands and serve the purposes of their inclusion

within the Refuge, the grant of lands to Alaska at statehood

must be interpreted to exclude the disputed lands.

ARGUMENT

A. The Unique National Values of the Arctic National

Wildlife Refuge Would Be Severely Threatened

By Conveyance of Submerged Lands to the State.

1. The Arctic National Wildlife Refuge and

Its Nearshore Waters Are an Integrated

Ecosystem of Tremendous National

Significance.

Explorers have been leading expeditions to the Arctic

coast since the 1920s. Findlay, History and Status of the

Arctic National Wildlife Range, 6 U.B.C. L. Rev. 15 (1971).

Renowned scientists and conservation leaders such as Olaus

and Mardy Murie, A. Starker Leopold, Kobert Marshall and

Justice William O. Douglas visited the area and returned

with glowing reports of its biological diversity and

outstanding scenery.’ As news of the incredible beauty and

diverse wildlife in this portion of the Arctic spread, a

movement arose to preserve the unique natural values of the

area.

In 1957, the groundswell of public support for

preserving a large block of the public lands in northeastern

Alaska culminated in the Bureau of Sport Fisheries and

Wildlife’s application to the Secretary of Interior for an order

withdrawing 8.9 million acres of land “to establish an Arctic

Wildlife Range . . . for the preservation of the wildlife and

' See, ¢.g., id.; William O. Douglas, My Wilderness 9-31 (1960); Penny

Rennick, ed., Arctic National Wildlife Refuge, Alaska Geographic, Vol.

20, No. 3 (1993); Debbie S. Miller, Midnight Wilderness 161-81 (1990);

George Collins, Background Information For Use In Connection With A

Proposal For An International Wildlife Range, 6 U.B.C. L. Rev. 3, 9

(1971).

wilderness resources of that region.” Report of the Special

Master [hereinafter Report) at 447 n.1, quoting Application

for withdrawal by public land order, November 18, 1957, see

also 23 Fed. Reg. 364 (1958) (public notice of application).

In 1960, the Secretary issued Public Land Order 2214,

withdrawing the land and establishing the Arctic Wildlife

Range. 25 Fed. Reg. 12,598 (1960). In a statement of

justification for the Range, dated November 7, 1957, D.H.

Janzen, director of the Bureau of Sport Fisheries and

Wildlife, stated: '

The portion of the Arctic plain included in the

proposal is a major habitat, particularly in summer,

for the great herds of Arctic caribou, and the

countless lakes, ponds and marshes found here are

nesting grounds for migratory waterfow] . . ..

The river bottoms with their willow thickets furnish

habitat for moose. This section of the seacoast

provides habitat for polar bears, Arctic foxes, seals,

This unmodified region is important for game

management research, particularly on caribou range

problems.

The proposed Arctic Wildlife Range offers an

ideal opportunity, and the only one in Alaska, to

preserve an undisturbed portion of the Arctic large

enough to be biologically self-sufficient. It would

comprise one of the most magnificent wildlife and

wilderness areas in North America .. ..

U.S. Ex. 9.

a

changed its name to the Arctic National Wildlife Refuge.

16 U.S.C. § 688dd. In ANILCA, Congress also designated

all but 1.5 million acres of the original Range as Wilderness.

16 U.S.C. § 1132. The remaining 1.5 million acres, located

along the coastal plain, were “withdrawn from all forms of

entry or appropriation under the mining laws, and from

operation of the mineral leasing laws.” 16 U.S.C. § 3142(i).

Importantly, Congress also provided in ANILCA that:

16 U.S.C. § 3143. Congress has not authorized any such

development.’

Protection of this area by Congress is not surprising.

No other park or preserve can match the primitive and intact

ecosystem of the Arctic Refuge. Not Yellowstone with its

edgy diversity of megafauna, not the Everglades with its

enormous biological productivity, not the Grand Canyon

with its still-life splendor. Indeed, the Refuge “is one of the

more primitive and isolated wild land regions left on earth

that has been afforded protection as a conservation area.”

* Of the 1,100 miles of Alaskan shoreline along the Beaufort and

Chukchi Seas, only the approximately 150 miles of Arctic Refuge

coastline remains off-limits to oil and other mineral development.

‘US. Fish and Wildlife Service, Arctic National Wildlife Refuge, Coastal

Plain Resource Assessment--Final Report: Baseline Study of the Fish,

The perennially snow-capped, 9,000-foot peaks of the

Brooks Range bisect the Refuge from east to west. Their

northern slopes meld into a fifteen to forty mile wide coastal

plain which leads to the island-studded coast of the Beaufort

entire spring and summer, so much so that eighteen major

rivers flow from the Brooks Range to the Beaufort Sea. The

coastal plain is tundra, with shin-high communities of

There are no trees on the coastal plain; none can endure the

winter’s cold or months-long darkness. The tundra is

underlain by permafrost only a few feet down, so that surface

water does not percolate, but instead flows gently through

the tussocks toward the Beaufort Sea.

Wildlife is ubiquitous during the summer.

Meandering across the tundra are customarily found

thousands of caribou. See App. 1 (photograph of Porcupine

Caribou Herd). The world- renowned Porcupine Caribou

Herd, 152,000 strong, migrates approximately 2,700 miles

annually. Every April, the Herd begins its long walk to the

coast, where the blooming tundra provides a high-calorie,

high-protein source of nutrition that i particularly essential

to cows during the early-summer calving season. The

caribou's chief antagonist is the mosquito, billions of which

virtually explode from the moist earth every June and whose

prime source of food is the caribou. Because this represents

a serious health threat, the caribou go to great lengths to

mosquito is to seek coastal waters. Near

submersion in seawater is the best defense. This makes the

Wildlife, and Their Habitats, vol. II, 481 (1986) (emphasis added)

(hereinafter Baseline Study).

lagoons and barrier islands the “insect relief habitat" of

choice. See infra p.14; App. 2 (map).

Other wildlife species that are found in great

Arctic foxes. Wolverine, marmot, voles, lemmings, weasels,

and dozens of other mammal species join the tapestry of

wildlife that make the coastal plain the most highly valued

wildlife preserve on the continent.

The Coastline and Beaufort Sea Lagoons

The Arctic National Wildlife Refuge is the nation’s

only conservation area that protects a complete spectrum of

Arctic ecosystems. From the high peaks of the Brooks

Range and foothills, the coastal plain sweeps down to the

coastal lagoons fringed by barrier islands at the Beaufort Sea

coast. The lagoons are an integral part of this ecosystem.

From its early beginnings, the Refuge was established “out

of a concern for the wilderness ecosystem of northern Alaska

as a whole.” U.S. Fish and Wildlife Service, Final Arctic

National Wildlife Refuge Comprehensive Conservation Plan,

EIS, Wilderness Review, and Wild River Plans 49 (1988).

During a visit to the coastal plain in the early 1950s George

Collins, a government researcher and surveyor, found “a

magnificent place of beauty . . . that comes largely from

being part of a much larger, varied and interconnected

natural system.” U.S.Fish and Wildlife Service, A

Preliminary Review of the Arctic National Wildlife Refuge,

Alaska Coastal Plain Resource Assessment: Report and

Recommendation to the Congress of the United States and

Final Legislative Environmental Impact Statement 7 (1995)

(hereinafter FWS 1995 Report].

The Refuge’s coastal plain, including its intricate

system of lagoons, is the “most biologically productive part

of the refuge and the heart of wildlife activity.” Jd. at 19.

This biological richness is due to a unique proximity of the

mountains to the coast and a greater landscape diversity than

any other part of Alaska’s coastal plain.

The coastal lagoons are an essential part of a broader

web of life of the Refuge’s coastal plain. One of the most

important values of the lagoon habitat is the respite from

mosquitoes it provides for the Porcupine Caribou Herd.

Polar bears regularly den in such places as the Pokok Lagoon

bluffs, Camden Bay area, and Canning River delta lagoons.

U.S. Department of Interior, Arctic National Wildlife

Refuge, Alaska, Coastal Plain Resource Assessment, Report

and Recommendation to Congress and Final Legislative

Environmental Impact Statement 30, Plate 1E (1987)

{hereinafter FLEIS]. “The brackish lagoons provide

migratory corridors for anadromous fish and are extremely

important feeding areas for these species,” such as Arctic

Char and Arctic Cisco. FLEIS at 34. In the lagoons the

submerged floor creates a highly-textured, gravely or rocky

surface that supports tremendously active communities of

algae, kelp, and invertebrates such as chitons, anemones, and

sponges which provide the foundation for the food chain.

K.H. Dunton, An Annual Carbon Budget for an Arctic Kelp

Community, The Alaskan Beaufort Sea 311-25 (P. Barnes, et

al. eds., 1984). Clouds of migratory birds come to the

lagoons to feast on concentrations of fish found there, and

10

remove the energy embodied in the lagoons to distant parts

of the world."

This far above the Arctic Circle, the sun shines

constantly in the short summer and not at all in the winter.

The twelve months of life in the Refuge that therefore must

be lived in only four months result in an explosion of

biological activity--in the lagoons and among the mosses,

lichens, and wildflowers of the coastal plain. The products

of this explosion are so valuable, ecologically speaking, that

species have evolved with the ability and determination to

travel whatever distance is necessary to partake of the

riches, and to convey them elsewhere.

M. Spindler, U.S. Fish and Wildlife Service, Bird Populations in Coastal

Habitats, Arctic National Wildlife Range, Alaska 25 (1979) (hereinafter

Bird Populations). U.S. Ex. 54. One hundred and thirty-five species of

waterbirds have been recorded on the Arctic Refuge's coastal plain. T.

Kizzia, Confrontation in the North, Defenders, Sept/Oct 1987, at 18

{hereinafter Confrontation in the North). The most impressive migration

is undertaken by the Arctic Tern, which travels 10,900 miles from the

Antarctic. Honorable mentions go to the Northern Wheatear, which

migrates from southern Africa; Pectoral Sandpipers and Red Phalaropes

(South America); Dunlin (Asia and California); and Brant (Mexico).

The most numerous species include the Red-throated and Arctic Loons,

Oldsquaw and Common Eider ducks. Of the several million birds that

inhabit the Arctic Refuge for some period of the year, the vast bulk

occupy the lands and waters in the vicinity of the Beaufort Sea lagoons.

U.S. Ex. 44; U.S. Ex. 54.

2. The National Values of the Arctic National

Wildlife Refuge Are Threatened By

Conveyance to the State.

The State of Alaska has unequivocally declared its

intent to lease the valuable nearshore submerged lands at

issue here for oil and gas exploration and development as

soon as 1999 if it prevails in its claim in this case.’ If this

Court allows the State’s claim to nearshore lands, oil

exploration and development will cause severe and

irreparable harm to the integrity of the Arctic National

Wildlife Refuge.

a. Extensive Oil Exploration,

Development and Production Activities

Will Occur.

Exploration activities associated with drilling the

submerged lands of the Refuge will include extensive

surveys, likely to be conducted by helicopter or on the ice

during winter, and seismic exploration. See, e.g., FLEIS at

83. Then, large scale exploratory drilling would occur. /d. at

84.

Development and production activities are even more

invasive and extensive than exploration activities. Major

"See State of Alaska, Division of Oil and Gas, Five Year Oil and Gas

Leasing Program, Beaufort Sea Areawide Lease Sales 1999, 2000, 2001

(July 1996) (sales include disputed submerged lands); David Whitney,

Alaska Counts On Court, Anchorage Daily News, April 26, 1996, at A-1

(Alaska Attorney General states that the Special Master's finding

concerning the Refuge, “if upheld . . . would allow the state to let oil

companies lease near the edge of the [Rjefuge's coastal plain"). See also

Trustees for Alaska, et al. v. State of Alaska, Department of Natural

Resources, 865 P.2d 745, 751 n.8 (Alaska 1993) (Demarcation Point)

(noting industry interest in drilling the Refuge).

12

projects associated with production of oil on Alaska's North

Slope include:

central production facilities, drilling pads, roads,

airstrips, pipelines, water and gravel sources, base

camps, construction camps, storage pads, powerlines,

powerplants, support facilities and possibly a coastal

marine facility.

FLEIS at 87; see also Final Finding and Decision of the

Director, State of Alaska Oil and Gas Lease Sale 50

(Camden Bay) at 52-54, 56 (April 30, 1987) [hereinafter

Alaska Offshore Oil Decision). Exploratory and

development drilling could be conducted in the lagoons

themselves. See Alaska Offshore Oil Decision at 49-50.

This drilling would occur over one or more seasons, and

entails construction of roads and airstrips, often made with

ice, and possibly artificial gravel islands. See id. at 49-53;

FLEIS at 84.

If successful in its claim, the State of Alaska may

seek to invoke Title XI of the Alaska National Interest Lands

Conservation Act to gain access to its land across the Refuge.

16U.S.C. § 3170(b). If Title XI access is obtained, the

actual reach of development would extend beyond the

submerged lands and include roads and other transportation

systems, pipelines and other infraswructure on the coastal

plain of the Refuge, spanning the area from development

Sites in the lagoons to the existing transportation systems to

the west at Prudhoe Bay.

Exploration, development, and production phases

generate significant amounts of wastes. For example,

drilling activities typically result in the discharge of an

average of 14,000 barrels of drilling fluids and cuttings per

13

well in Cook Inlet, Alaska. See 60 Fed. Reg. 9,428, 9,440

(1995). The United States Environmental Protection Agency

has recognized that drilling wastes pose real threats to the

marine and aquatic environments:

Discharged drilling fluids and drill cuttings are

shown to cause contamination of sediments with

heavy metals and hydrocarbons up to 4000 meters

from the platforms. ... Produced water discharges

are shown to cause contamination of sediments with

metals and . . . hydrocarbons up to 1000 meters from

the platforms.

58 Fed. Reg. 12,454, 12,493 (1993) (EPA offshore oil and

gas effluent rule). Traditionally, offshore and coastal area

drilling rigs in Alaska have discharged these wastes directly

into the surrounding waters. See, e.g., id.; see also Alaska

Offshore Oil Decision at 55-56.

The wildlife resources, wilderness values and

recreational opportunities of the last remaining intact

ecosystem on America’s Arctic coast are unique and

irreplaceable. All of these facets of the Arctic National

Wildlife Refuge face severe threats from oil exploration,

development and production activities.

Wildlife

Focusing first on the most visible wildlife presence in

the coastal area, oil development of submerged lands would

14

threaten the vast, internationally significant Porcupine

Caribou Herd. The coastal plain and lagoons, barrier islands

and river deltas provide critical habitat for the highly

migratory Herd. FLEIS at 25. During calving on the coastal

plain, "[ajdult females are at the lowest ebb of their physical

condition” and “no alternative habitats are apparently

available." International Porcupine Caribou Management

Board, Sensitive Habitats Of The Porcupine Caribou Herd 14

(January 1993) [hereinafter Sensitive Habitats]. During the

post-calving period the Porcupine Caribou aggregate in large

numbers on the coastal plain, and in particular in the lagoons

and on barrier islands seeking relief from the insects which

continually harass the caribou. LEIS at 25; Sensitive

Habitats at 17; see also Apps. 1 & 2.

One need only envision a drill mg and associated

facilities in or near the Beaufort lagoons to understand that

this habitat would be significantly degraded such that the

Porcupine Caribou, which now use the area by the thousands,

would be adversely affected. See App. 1. During the post-

calving period "[f]ree movement of these large groups is

critical [and] [c]ow/calf groups are relatively intolerant to

disturbance.” Sensitive Habitats at 17. "[I]}f caribou are

delayed or prevented from free access to insect-relief habitat,

the result may be deterioration in body condition with

consequences of decreased growth, increased winter

mortality, and lowered herd productivity.” FLEIS at 22.

Oil development activities in or near caribou habitat

can adversely affect caribou. See FLEIS at 120 (noting three

kilometer “sphere of influence” on caribou from

industrialized areas). This fact has been amply demonstrated

with the Central Arctic Caribou Herd which inhabits land

15

around oil development facilities at Prudhoe Bay, located on

Alaska’s North Slope to the west of the Refuge:

studies of distribution and movements of the Central

Arctic Caribou Herd . . . show that the animals tend

to avoid the Prudhoe Bay complex, the Trans Alaska

Pipeline, and the associated roads.

Final Finding Of The Director, State of Alaska Oil And Gas

Lease Sale 36, 16 [hereinafter Sale 36 Finding]. Caribou

populations can be negatively affected by “the cumulative

effect of displacement and disturbance from” oil exploration,

development and production. Sale 36 Finding at 33. This

could, “in the long run, depress population levels.” The

Department of Interior concluded that the effects of drilling

for oil on the coastal plain of the Refuge on the Porcupine

Caribou Herd would be “major.” FLEIS at 166.

In addition to impacts from the presence of

development itself, caribou are also particularly sensitive to

the inevitable oil spills. In examining the environmental

impacts of offshore oil and gas lease sales near the Arctic

National Wildlife Refuge, the United States noted that:

Caribou sometimes frequent barrier islands and

shallow coastal waters during periods of heavy insect

harassment and may become oiled or may ingest

contaminated vegetation. Toxicity studies of crude

oil ingestion in cattle indicate that anorexia,

significant weight loss, and aspiration pneumonia

leading to death are possible adverse effects of oil

“Sale 36 Finding at 33; see also Brian O'Donoghue, Oil Development

Slows Caribou Births--Studies, Fairbanks Daily News-Miner, August 17,

1995, at Al; Steve Rhinehart, Oil Field Caribou Decline; State finds

fewer in Arctic herd, Anchorage Daily News, October 21, 1995, at Al.

16

ingestion in caribou. These possible effects could

increase mortality rates of caribou that interact with

oil pollution.’

Polar bears also will be adversely affected by drilling

of the submerged lands. Most, if not all, of the submerged

Refuge lands in dispute in this case are known polar bear

denning habitat. FLEIS at 129; Alaska Offshore Oil

Decision at 16-17. Indeed, the most important land denning

area in Alaska is a coastal strip in the Arctic Refuge. FWS

1995 Report at 7. Generally, polar bears reside on floating

pack ice except while denning. Alaska Offshore Oil

Decision at 16. Polar bears will move into nearshore areas in

early fall to den in shorefast ice and snowdrifts on barrier

islands and the coastal plain. Jd. at 17. Cubs are born in

mid-winter and emerge from the dens with their mothers in

March or April to head out to the pack ice. Id.

"Polar bears are particularly sensitive to human

activities during the denning period.” FLEIS at 129. If

disturbed during denning, polar bears will usually abandon

their dens, which can be fatal to cubs unable to travel with

their mothers. Jd. Disturbance during denning is particularly

problematic because “mortalities of female polar bears are

now about the maximum the Beaufort Sea population can

sustain without a decrease in population levels.” Jd. at 130

(citation omitted). Potential sources of disturbance include

Federal Outer Continental Shelf Oil And Gas Lease Sale 71, final EIS at

185; see also Federal Outer Continental Shelf Oil And Gas Lease Sale

91, final EIS at IV-B-70, IV-B-74 (detailing potential effects of oil spills

on Porcupine Caribou Herd).

17

“aircraft, ships, road construction and traffic, pipelines,

seismic work, drilling, and oil transport activities."

Increased human-bear encounters can also be

expected if drilling and associated activities occur, resulting

in an increase in the number of bears shot and killed. Lentfer

Testimony. Oil and other contaminants can directly harm

and kill polar bears through spills or direct ingestion, or

indirectly harm and kill them, through contamination of the

food chain upon which polar bears rely. Lentfer Testimony;

FLEIS at 130; Alaska Offshore Oil Decision at 17.”

The coastal areas are also extremely important for

coastal and freshwater fish and other marine species. These

areas are important because they are relatively warmer than

the offshore Beaufort Sea waters and their brackish waters

are rich in food organisms. See U.S. Fish and Wildlife

Service, Fish Population Characteristics of Arctic National

Wildlife Refuge Coastal Waters | (1988).

The importance of the lagoons as a feeding area for

fish was recognized in the early 1950s by government

"Arctic National Wildlife Range, 1991: Hearings on HR 1320 and 759

Before the Subcomm. on Fisheries and Wildlife Conservation and the

Environment of the House Comm. on Merchant Marine and Fisheries,

102d Cong., Ist Sess. 303, 304 (1991) (testimony of Jack Lentfer)

{hereinafter Lentfer Testimony] (Mr. Lentfer is the former head of the

polar bear research and management programs for both the Alaska

Department of Fish and Game and the U.S. Fish and Wildlife Service.)

"Mr. Lentfer “dofes} not believe the effects of [oil and gas exploration

and development on polar bears] can be mitigated,” Lentfer Testimony at

303, and notes that it is “important to recognize that the{) effects would

be cumulative and that the overall effect would be even more severe if

similar impacts resulted from exploration and development activities

elsewhere along the Alaskan and Canadian Beaufort coast.” /d. at 304

researchers, including those who ultimately drew the

boundaries for the Arctic Wildlife Range:

the accretion lands are in the forms of reefs offshore,

along the Arctic coast--miles and miles of thin

thread-like reefs that stick up, gravel bars, with the

water between them and the mainland. The mainland

tundra plains reach back to the mountains, and the

sun comes out and melts the ice and snow in the

spring, and the waters flow down at tremendous

speed in those north-flowing rivers, fifty of them or

so, and into those lagoons between the reef and the

shore, the water becomes virtually potable.

You have freshwater types of fish that come

out of those mountains and go down into the lagoons

and mature. Part of their lifecycle depends upon this

flushing out and the utilization of this reef system,

with the lagoons behind them, as against the ocean

waters and the intense masses of ice offshore, far out.

George Collins, The Art and Politics of Park Planning and

Preservation 192 (1980) (history of early 1950s research and

surveys of the Arctic) [hereinafter Park Planning}.

Sixty-two species of fish are found in the coastal

sara fish that spend tine monte of te year

19

into the Beaufort Lagoon and Beaufort Sea. Fish populations

can be harmed by changes in habitat caused by oil activities,

such as obstacles to free fish passage. FLEIS at 136-37.

The endangered Bowhead whales off the Alaskan

coast number approximately 8,000. Probably the most

critical portion of the Bowhead's annual migration is the few

months spent off the coast of the Arctic Refuge (from Barter

Island to the Canadian border), where they feed off the high-

calorie zooplankton created in the Beaufort lagoon's

estuaries.” Offshore support facilities, including the

construction and presence of a gravel causeway to transport

oil from the submerged lands west to Prudhoe Bay, see

Trustees for Alaska v. State, 795 P.2d 805, 810 (Alaska

1990) (discussing transportation options for state oil and gas

lease offshore of the Refuge), could have severe impacts on

Bowhead whales. See, e.g., Alaska Offshore Oil Decision at

49-50 (noting importance of restricting offshore activities

during Bowhead whale migration).

Internationally important migratory waterfow! and

shorebirds also concentrate in and near coastal lagoons and

on barrier islands for nesting, feeding and staging. Alaska

Offshore Oil Decision at 23. One hundred and thirty-five

species of waterbirds have been observed on the Arctic

Refuge’s coastal plain. Confrontation in the North at 18. Of

the millions of birds that inhabit the Arctic Refuge for some

period of the year," the vast bulk occupy the lands and

waters in the vicinity of the Beaufort Sea lagoons. This is

"L. Lowry and K. Frost, Foods and Feeding of Bowhead Whales in

Western and Northern Alaska, 35 Sci. Rep. Whales Res. Inst. 1-16

(1984).

"Two species of duck alone--the Eider and the Oldsquaw--account for

1.5 million. U.S. Ex. 44.

20

due not only to the rich feeding materials found in the

waters, but equally to the many different types of waterbird

habite* that are located within proximity to the lagoons. Bird

Populations at 25.

Activities which require the use of heavy equipment

and repeated aircraft flights near the nests could

disrupt nesting and vesting birds. The effects of such

disturbances couk! im:lude loss of eggs, inability to

feed and develop sufficient fat reserves, and

abandonment of molting areas.

Alaska Offshore Oil Decision at 23 (citation omitted); see

also FLEIS at 131-32. Nearshore facilities could also

adversely affect tundra swans and the hundreds of thousands

of snow geese which use the coastal plain, lagoons and

barrier islands. FLEIS at 133.

As the Exxon Valdez oil spill amply demonstrated,

direct contact with oil spills by birds is usually fatal. Alaska

Offshore Oil Decision at 23. This is “particularly [true] in

lagoons where waterfowl congregate in large numbers.”

FLEIS at 132. Oiled birds die from hypothermia, shock, or

drowning. Alaska Offshore Oil Decision at 23.

Hydrocarbon and other contaminants can also be ingested,

either directly through preening or indirectly through

consumption of contaminated foods. This can lead to

“reduce[d] reproductive ability” and “chronic toxicity.”

Alaska Offshore Oil Decision at 23.

Wilderness and Recreation

The coastal plain of the Refuge “has outstanding

wilderness qualities: scenic vistas, varied wildlife, excellent

opportunities for solitude, recreational challenges, and

scientific and historic values." FLEIS at 46.

21

The coastal plain study area is primeval land

and offers excellent opportunity for solitude, which is

further enhanced by the wilderness status of the land

immediately south and east and the Arctic Ocean to

the north of the area. There are no roads in the area

or designated trails for wilderness travelers, but most

travel occurs along river courses. However, even in

close proximity to another party, the meandering

shape of stream anes provides adequate

a aa bails tent cnn

wilderness. Such experience is reminiscent of the

hardship, challenge, drama, and peril faced by the

early American pioneers, but which is becoming

increasingly difficult to experience today.

A visitor can, within the span of a few days,

go from the alpine zone of ice, snow and rock, to

alpine meadows, and arctic tundra valleys. Leaving

the mountains, one traverses tussock tundra foothills,

braided river floodplains, and rolling tundra plains.

Near the arctic coast, one encounters the flat thaw

lake plain, and the coastal zone of wetlands, lagoons,

barrier islands, and the ocean. This recreational

variety is unavailable within such a short distance

anywhere on the Alaskan north slope.

Baseline Study at 480.

One could hardly argue with the United States’

conclusion that these values “would be destroyed by the

addition of oil facilities." FLEIS at 144. The unique and

spectacular esthetics of an unspoiled and vast land simply

22

cannot survive the erection of an oil drill, or the gash of an

oil pipeline. Moreover, the

[nJoise and presence of oil-development facilities

would not only eliminate the wilderness character in

the [coastal plain] area, but there could also be some

visual and sound intrusions in the designated

Wilderness by activities and developments in the

{coastal plain] area.

FLEIS at 144. The opportunity for scientists to study an

undisturbed ecosystem would also be eliminated. Jd.

Even if one were never to visit the Refuge, simply

knowing that there exists in America one such place, where

an entire ecosystem is left undisturbed from the hand of man,

satisfies a need traced to the very soul. As Justice Douglas

writes:

Most people have an interest in the

preservation of wilderness even though they may be

too old to backpack or have wholly different interests.

.. . The very presence of a remote wilderness area

that only a handful of people visit a year gives a new

dimension to a nation. For it supplies an element of

mystery and awe, a real sanctuary of a sort, a genuine

frontier that man has not despoiled. In these things

People treasure our wilderness, as they

treasure Mt. Everest, even when they are too frail to

visit it. They get comfort and security too, from the

realization that we still possess some of the original

America as it was in the beginning.

William O. Douglas, A Wilderness Bill Of Rights 85 (1965).

23

B. To Protect The Paramount National Interest In

Nearshore Lands Of The Arctic National Wildlife

Refuge, This Court Should Conclude That The

Refuge Encompasses the Disputed Submerged

Lands.

1. The Disputed Submerged Lands Are

Within the Refuge Boundary.

The extraordinary wildlife and wilderness values of

the coastal plain, barrier islands, and offshore lagoons in

particular, must be considered in determining the boundary

of the Refuge. Relying on the plain meaning of the boundary

description and noting that the United States’ original

justification for the Range included references to the “river

bottoms” and the “seacoast” and the variety of animals that

depend on that habitat, the Special Master determined that

“the disputed lands--including lagoons, tidelands, and the

tidal parts of rivers--are inside the boundary of the Range.”

Report at 499. Given the importance of the submerged lands

and tidelands to the wildlife, wildetscss and recreation

values of the Refuge, tying its boundary strictly to the shore

would defeat the purpose of its designation.

As the Special Master notes, at the time the

application for establishment of the Alaska Wildlife Range

was submitted, the evidence showed that the United States

intended all disputed lands to be included. Report at 489-90

(Master's discussion of importance of disputed lands to

wildlife of the Refuge). The very people who drew the

boundary for the United States support this conclusion. See

Park Planning at 177-200, see especially 192 (government

researcher and surveyor George Collins, based on his surveys

of the early 1950s, notes importance of coastal lagoons to

ecology of area ultimately included within Arctic Wildlife

24

Range). The voluminous information gathered since that

time underscores the essential character of the coastal

lagoons and barrier islands to the integrity of the Range. See

supra pp. 8-10, 14-21.

The central relevance of the purposes of the land

designation as an aid in defining the boundary of the Range

is supported by the Special Master's recommendations

confirming the United States’ ownership of submerged lands

in the National Petroleum Reserve, Alaska (NPRA). Report

at 364-65, 380. In making the NPRA boundary

recommendation, the Special Master focused on the original

purpose of the NPRA: reservation of underground petroleum

resources. Report at 380. The Master concluded that to

draw the boundary as the State suggested, excluding

submerged lands, would defeat the purpose of the land

designation in the first place, as it could effectively allow the

State to access petroleum reserves set aside in the NPRA.

See Report at note 68 and accompanying text.

With respect to the Arctic National Wildlife Refuge,

the State of Alaska would have the Court define the Re‘uge's

northern boundary to follow the "sinuosities of the extreme

low water line along the mainland” including within the

boundary only those “offshore bars, reefs, and islands that

are above the line of extreme low water." Alaska Reply

Brief at 18. As with the NPRA, such a ruling would defeat

the purpose of the Refuge. The previous sections describe in

detail how the submerged lands and associated waters sought

by the State form the very heart of the biological core of the

Refuge. It is here where caribou seek shelter from harmful

insect attack, millions of migratory birds feed, anadromous

fish mature, and plankton bloom to sustain the bowhead

whale. These values would all be jeopardized by exclusion

25

from the Refuge and transfer to the State. The same can be

said for the Refuge’s unique wilderness and recreation

values. These are the values the United States sought

specifically to protect in establishing the Range. The Special

Master’s inclusion of the disputed submerged lands within

the boundary of the Refuge must be affirmed if the

reservation is to serve its purpose.

2. The United States Retained Ownership Of

The Submerged Lands Within The

Boundaries Of The Arctic National

Wildlife Refuge.

The significant national values of the coastal area of

the Refuge also support the United States’ claims to

ownership of the disputed submerged lands. Many, if not

most, of the lands subject to this dispute are offshore

submerged lands, the disposition of which is governed by the

Submerged Lands Act. 43 U.S.C. 1301 et seg. These lands

are those submerged under the shallow lagoons, between the

edge of the mainland and the barrier islands and reefs

offshore below the low tide line. The Special Master

improperly concluded the reservation of these lands by the

United States was ineffective because he misinterpreted

section 6(e) of the Alaska Statehood Act. Even if the Special

Master had doubts about the meaning of section 6(e), he

should have applied the rule of construction that favors the

national interest in interpreting federal grants. Proper

application of the rule requires a conclusion that the United

States effectively withheld the disputed offshore submerged

lands from Alaska.

Because the enactment of the Submerged Lands Act

was an exercise of the federal government’s constitutional

power to dispose of federal property, this Court has

26

concluded its grant of lands must be construed narrowly and

in favor of the United States. See California, ex rel. State

Lands Comm'n v. United States, 457 U.S. 273, 285, 287

(1982). This conclusion applies the longstanding rule that

statutory grants are to be “construed strictly in favor of the

public, and whatever is not unequivocally granted is

withheld.” Coosaw Mining Co. v. South Carolina, 144 U.S.

550, 562 (1892). “[I]}f there are doubts they are resolved for

the government, not against it.” United States v. Union

Pacific R. Co., 353 U.S. 112, 116 (1957) (citation omitted).

This rule exists to protect the federal sovereign and the

national interest in federal public lands from grantees

claiming “more than what was expressly included,” United

States v. Grand River Dam Authority, 363 U.S. 229, 235

(1960) (citation omitted), and has been applied in a variety of

circumstances to protect the national interest in certain lands.

See Andrus v. Charleston Stone Prods. Co., 436 U.S. 604,

617 (1978) (applying the rule to a federal mining statute);

Grand River Dam Authority, 363 U.S. at 235 (applying the

rule to a statute granting rights to construct dams across

nonnavigable streams); Watt v. Western Nuclear, Inc., 462

U.S. 36, 59 (1983) (applying the rule to the Stock-Raising

Homestead Act).

In this case, it is particularly appropriate and

importent to apply the rule of construction to the federal

retention of the submerged lands of the Arctic National

Wildlife Refuge. The submerged lands of the Refuge are of

unparalleled public value. This national interest in the

Refuge’s submerged lands must be protected from too broad

a construction of the federal grant in the Submerged Lands

Act. The fundamental purpose of the Refuge would not be

27

served if the United States were to be denied federal

ownership of the submerged lands.

That result also should apply to tidelands. Some of

the disputed lands are tidelands (lands between low and high

tide) and lands underiying inland navigable waters. These

lands, too, can be retained by the United States, as

recognized by the Submerged Lands Act, subject to the

constitutional limitation that the reservation be for a public

purpose, Utah Div. of State Lands v. United States, 482 U.S.

193, 200-01 (1987), and that the intent to retain ownership be

apparent. See 43 U.S.C § 1313(a).

In Alaska Pacific Fisheries v. United States, 248 U.S.

78 (1918), the Court found that a federal reservation included

title to submerged lands, even where no explicit reference to

the lands was made. See also Report at 420. The federal

government reserved “the body of lands known as Annette

islands” to create an Indian reservation. Because the Tribe

relied on the lands underlying navigable waters for

sustenance and “could not sustain themselves from the use of

the upland alone,” the Court found the reservation to include

the waters and submerged lands adjacent to the islands.

Alaska Pacific Fisheries, 248 U.S. at 89. Thus, because

accomplishment of the purpose for the federal reservation

required the inclusion of submerged lands in the reservation,

the Court construed the reservation to embrace those lands.”

"In Montana v. United States, 450 U.S. 544 (1981), a case involving

inland waters not subject to the Submerged Lands Act, the Court

confirmed the approach taken in Alaska Pacific Fisheries, though

reaching a different conclusion because the purpose of the reservation

did not require inclusion of lands under a river.

28

In the case of the Arctic National Wildlife Refuge, as

the previous sections demonstrate, the fundamental purpose

for the reservation--protection of the area’s wildlife, the

intact ecosystem, and the associated wilderness--would be

destroyed if the submerged lands and lands underlying

navigable waters were not included in the reservation. Many

of the species of wildlife that inhabit the Refuge rely on these

lands and waters for their survival, much as the Tribe in

Alaska Pacific Fisheries relied on the submerged lands for

theirs.

To ensure that the unique and fragile resources of the

Arctic National Wildlife Refuge are protected as was

intended by the original reservation and is necessary to

safeguard the national interest, this Court must conclude that

the disputed submerged lands are within the Refuge and

owned by the United States.

CONCLUSION

As its name suggests, a primary reason the United

States established the Arctic Wildlife Range was to preserve

and protect the incredible wildlife present on the Range. The

coastal lagoons and lands underlying navigable waters are

essential to this wildlife.

A decision by this Court, therefore, that these lands

belong not to the American people but to the State of Alaska,

which desires immediately to exploit them through oil

drilling, would eviscerate the very reason the Range was

established in the first place and irrevocably change the

supreme wilderness character of the area.

The central significance of the disputed lands to the

unique and world-renowned wildlife and wilderness values

of the Arctic National Wildlife Refuge lead to the conclusion

29

that the lands were not transferred to the State of Alaska at

the time of Statehood. The Court should find that the lands

were retained in federal ownership, thus rejecting the Special

Master's recommendation on Question #9; and find that the

boundaries of the Range included the disputed lands, thus

adopting the Special Master's recommendation on Question

#10.

Respectfully submitted,

PETER VAN TUYN

Trustees for Alaska

ERIC JORGENSEN

JANIS SEARLES

Sierra Club Legal

Defense Fund, Inc.

JAMES B. DOUGHERTY

November 12, 1996 Counsel for Amici Curiae

APPENDICES

App. 1 Photograph of Portion of Porcupine Caribou Heard

(ea : seeking relief form Mosquitos along Beaufort Sea lagoons.

| Reprinted from D. Miller, Midnight Wilderness 23 (1990).

;

Serr eh

ee Ae Na Rea ieee Spent:

App. 2 U.S. Government map depicting coastal areas relied

upon by caribou for insect relief. Reprinted from U.S. Dept. of

the Interior, Arctic National Wildlife Refuge, Alaska, Coastal

Plain Resource Assessment, Report and Recommendation to

Congress and Final Legislative Environmental Impact

Statement (pocket) 1987.

DEPARTMENT OF THE INTERIOR

U.S. GEOLOGICAL SURVEY

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A. Porcupine caribou herd concentrated calving and insect-relief areas “me y