Special Master Report — Cuban American Bar Ass'n v. Christopher
Supreme Court brief1995
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No. 84, Original
In The
Supreme Court of the United States
OCTOBER TERM, 1995
UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF ALASKA
REPORT OF THE SPECIAL \. ASTER
J. KEITH MANN
Special Master
Stanford, California
March 1996
RECEIVED
OFFICE OF THE CLERK
Page
IIIT (osha iciareneesetereaainnsaebarneieammnoneapetenannn ix
; RR it allt RO xi
> SEIT sdlictaserinenutssanessossetsoasspapenecenesssesaneocveseese 3
A. Nature of the controversy .............:ccccsccseeeesseeeeees 3
Be iain ccccccesnsvensenpenensecoscssecssece 3
ni as 5
D. The joint statements of questions presented .......... 7
E. The motion for leave to intervene .......................+. 8
F. Additional proceedings before the Special
pelle: tana ed heb a oR Na 10
PART ONE
ALASKA’S COASTLINE
et Se 15
III. THE EFFECT OF ISLANDS ON THE COASTLINE ..........++++. 19
A. The United States’ position .................cccceeeeeees 20
Be rari sdescecsertenssnnsceveccessctes 25
1. Questions 2 and 12: straight baselines ............ 25
2. Questions 3 and 13: the ten-mile rule ............. 29
3. Question 4: assimilation and simplification ... 30
C. Organization of the discussion ...................0.:000 32
Hy Soe a 34
1. The Alaska Statehood Act ..0............cccccceceeeeee 34
2. The Submerged Lands Act ................:000ce00000+ 36
a. The conditional grant .................:cceeeeeee 37
b. The definition of “coast line” .................... 39
(1) The Douglas amendment .................... 39
(2) The meaning of “open sea” ................ 41
**
CONTENTS
E. The impermissible contraction theory ................. 44
1. Article 4 straight baselines ..............:cccccseeeeees 45
2. Inland waters at statehood ............:ccceeeeeeeeees 49
3. GROSSES FERRITES .ccrccceccsacsoensnsascouiermmesiennets 51
F. Past delimitation practice of the United States .... 52
1. The Alabama and Mississippi Boundary Case 52
2. United States policy to 1929 ........cccccceeeeeeeeees 56
©. DGRBWRRG TRG .cccecerscansessnsonssssememeientecnas 57
b. Long Island Sound .............:cccccssseceeeeeeeeeees 58
c. Cuba and the Florida keys ...............:00008 60
d. The Alaska boundary arbitration ............... 61
e. Mississippi Sound ...............:.cssesscsssseeseres 66
f. General statements .............ccrcrcesssserssrsseees 67
3. United States policy from 1930 to 1949 ......... 71
a. Proposals at the Hague conference of 1930 71
b. Authority of the 1930 proposals ................ 75
©. TRO TOG CORTE cccecececcssestatnisnnesseesscsmnentien 80
4. United States policy, 1950-1952 ..........ccce 83
a. The Chapman line (1950) ..........:cccceeeeeees 84
(1) Boggs’s theory .............::cccceeeeee an 85
(2) Clement’s Giecry ....ccccecccsosessssoresereesees 87
(3) Shalowitz’s theory ..............::ccccseeseeees 88
b. The Fisheries case (1951) .........c:cssceeeeeees 93
c. The State Department letter (1951) ........... 98
d. The Master’s report in California (1952) 103
e. The Alexander Archipelago (1952) ......... 105
C, DRRCUEERER. .connswsesenssteiniaiinaiinaiiiain 107
5. United States policy from 1953 to Alaska’s
SORAERBOT nncarsocessceecguensseseninneeninaiiaeaiaiianae 109
a. Application of the Submerged Lands Act
in Gan GE SARIS ccncencesenccinictaincies 110
b. Pres regulations in Alaska .................. 116
c. ED ccccsccetsmnnptentionetniie 122
d. ate on pre-Convention policy ......... 126
(1) ‘TED Ci CED GUD cncsencsscctseeesssbcsentenien 127
IV.
(3) Other formulations ...........................
ee IID Ssttnccsescesccccccscccccccce
f. The application of pre-Convention
Fe ee
6. Poststatehood developments .....................+.
FE a
(1) The Louisiana case, 1960-1961 .......
(2) The California case, 1963-1965 .......
(3) The Louisiana case, 1965 .................
b. Article 4 straight baselines ......................
(1) The Louisiana Boundary Case,
I i cesscceese
ae ccccsenes
C. The relation between the two sentences of
ESE SES TE
1. The Court’s interpretation ....................000+.
2. The history of Article 7(2) ............cccccccceee
I csi cacdeddccscessonsecccees
b. The International Law Commission ........
c. The 1958 Geneva conference a
D. Application EE
1. Initial analysis of the “well-marked
152
iv
CONTENTS
a. The meaning of “landlocked waters” ...... 208
b. Adaptation of the Court’s test ................. 211
c. Precedents on double-headed bays .......... 216
CUI Sicechctdceieitcncincniindsastisafinistiacenntsccesess 226
SENG TID cnccatnccesccsctnnsceenssnncscessetinatinnetincersesees 227
A, FR IRD cestecsitrtncetiscncievitiznecmnncnn 228
B. Background of the dispute ...............cc:cccsceeeee 230
C. The high water Gata ..............cccccccssessccessssseeees 234
1. Interpretation of “high tide” as mean high
CRED ccnseaitshsitcsstengctncntntctintstuisdntihnciimenstesesscens 234
2. Conditions in the Beaufort Sea .................... 236
D. Evidence predating the joint monitoring
SUNT cccpisintcteicisitiientiateindesieatiintmndennissrieseusecenscscs 240
1. The cartographic history .................c.0ccc0000 240
So ND tattcrestttecnenceccstetncecscsescvens 244
E. The joint monitoring project ...............ccccceeee 248
1. Determination of mean high water ............... 249
2. Determination of the height of Dinkum
ED wcicinsteinenenccntinctinbitintthdisieisiibibiiabatsiesiiainpniins 253
3. Alaska’s proposed adjustments to the tidal
GBTED ‘cchicnistinncmnnteasttitttinsesenssitithiatnnintecssees 255
a. Extent of the adjustments ........................ 255
b. The adjustment for trend ...................000+ 258
c. The adjustment for weather .................... 263
FS Le ee 266
F. The composition of Dinkum Sands ................... 269
Ee 270
2. Ice in international law ....................c0000000 271
3. Application to Dinkum Sands ...................... 274
G. Observations in 1982 and 1983 .............ccccecceee 276
1. Alaska’s measurements ................c0ccseeeeeeee 278
2. Late season observations .................ccceeeee0es 280
Be, CID vaectttiictiedcccntteensncatectnntettinnrensee 283
I. Requirements for an island ........................0c000++ 287
1. The notion of permanence ......................0+ 288
2. Horizontal permanence ....................cc00-00-+: 289
3. Vertical permamemce .............0csecceccsseserssessees 294
a. History and interpretation of the
EE Se 294
b. Features of variable height ...................... 302
c. The possibility of divided ownership ...... 304
d. Application to Dinkum Sands ................. 307
ey ere ee ee ee 310
VI. THE ARCO PIER EXTENSION ................escesceeseeseeseeeees 311
Vil.
VIII.
A. The Submerged Lands Act and the Convention 313
B. The pier extension as a permanent harbor work 314
1. Articles 3 and 8 of the Convention .............. 314
2. The question of permanence ........................ 316
C. The Convention as controlling .......................... 323
FOE 323
2. The argument from emergency .................... 325
3. The argument from the regulations .............. 329
a I Saiciehicheciictediceccnstctiiltbicthitemnenestncccete 337
LOW-TIDE ELEVATIONS ..........ccsccorcsssssssessesseeseeesenes 338
PART TWO
FEDERAL RESERVATIONS
THE NATIONAL PETROLEUM RESERVE-ALASKA ........ 343
A. Question 7: Harrison Bay and Smith Bay ......... 349
B. Question 8: Peard Bay ..........:.0.c.0ccsessesssssssesseees 352
Be ID tities citcereccsentedtctentuitoncocnedi 353
2. The boundary description ......................0+ 357
a. The three-mile requirement .................... 357
b. Peard Bay as a small lagoon ................... 360
A ee a ae 364
CONTENTS CONTENTS vii
C. Question 11: Wainwright Inlet and the Kuk 3. General considerations ....................ccs0e000 459
River, Kugrua Bay and River, and other small 4. Congressional retention by Statehood Act
inlets, bays and river estuaries ...............000++ 364 RRS eae ey Oe 462
1. Thee gengeaghay .......0...c.ccccsceccscscsesereceneneessnees 365 5. Executive retention under Submerged Lands
2, AREER ceccnessesitiniisitibtittitclrencennnes 366 | AER Sn 467
3. Construction of the boundary description .... 368 a. An application as an executive retention . 467
4. Application of the boundary description. ...... 372 b. Authority for an executive retention ....... 473
a. Wainwright Inlet ..................00cessseeeeeeeees 372 el et 477
b. Other indentations with sandspits and C. Question 10: The interpretation of the with-
IGE ceccecececncasccccapnscsesnpcenantquestscnstsnceces 374 I 477
c. Tidally influenced parts of rivers ............ 376 1. The location of the boundary ....................... 478
S, Comme sa ccecencesensicsntetiinintsiinencsccenesteceetns 380 a. The boundary description on its face ...... 481
D. Development of the Pollard doctrine ................ 381 b. Other evidence of the intended boundary 482
D, CI ccticccncennctsticinecnctntsemscemeresseseeee 382 (1) Prestatehood maps ......................:00+. 483
2. BRED GD crsctiactttsiiticttitcinceteceesvceses 386 (2) Development of the boundary
E. Issues stemming from Montana and Utah ........ 388 ESSE, 484
1. Inland waters versus territorial waters .......... 390 (3) The purposes of the Range ............... 485
2. Reservations or withdrawals versus (4) Comparison with other descriptions . 491
COMVCYEROGS .......cceccerscrsrencrersesersnssssosesoeees 395 2. Rights to submerged lands inside the
3. Authority for the reservation ...............00000 404 NE ll Seb 495
4. Intention to reserve submerged lands ........... 416 nt a te A SR OL IP 499
a. The precedent ..........cccesssvessssesssvessssessenes 416
b. The language and purpose of the
Executive Onder .........0..csccscrsesssreeereesseses 421 PART THREE
EE 429 SUMMARY
5. Intention to defeat state title .................:000 430
6. The scope of the rights retained ................... 440 X. SUMMARY OF RECOMMENDATIONS ............00000000e00e00e 503
FP. Com cctietcesntestencetesienditnanrchentersncetntenisionen 445
IX. THe Arctic NATIONAL WILDLIFE REFUGE ............... 447 Re I a SE SA 507
Be, Te RAIA cccccenecnensenennssscilliltnciinstnctittnitinietenan 451 A. Text of questions presented ....0...............cccc0000 509
B. Question 9: The effectiveness of the withdrawal B. Report of January 10, 1984 .0.......ccccccccccceceeeeeees 513
GR AEIBGD ccscresinscnsveinssnenstesinesinecnttnssenctiesoesseeeee 455 C. Order of January 10, 1984 (intervention) .......... 557
1. Federal power to retain submerged lands ..... 455 D. Order of June 3, 1986 (intervention) .................. 560
2. The statutory framework ..............ccc0cceeeeeees 457 E. Stipulation on question 14 ...............ccccccceeeeeeeeees 564
1.1.
3.1.
3.2.
3.3.
3.4.
3.5.
3.6.
4.1.
4.2.
4.3.
4.4.
4.5.
4.6.
5.1.
5.2.
Page
The Arctic coast of Alaska ...............cccceeeeees facing 3
The normal baseline and the three-mile belt
in the presence of islands (schematic) ................ 23
The United States’ position in the leased
ITI sccestccnsetecneseurectbermietictinneornereepanenes facing 24
Article 4 straight baselines (schematic) .................. 27
Alaska’s position in the leased area using
ten-mile straight baselines ........................ facing 28
The ten-mile rule (schematic) ....................0000000008+ 31
The method of assimilation and simplification
ITITIITTITIIT sis oncestieeleteeaetd bauateemepocnnebimeconngteseczepneqcese 33
Harrison Bay (from NOS chart 16004) ................. 178
The parties’ positions on closing lines for
SUIEN TENE stccssnchenentecnssecsganscestnesasestosccosereceee 179
Tenakee Inlet and Freshwater Bay, Alaska
(from NOS chart 17300) .............ccccccccecseeeeeeeees 220
Shelikof Bay and Gilmer Bay, Alaska
(from NOS chart 17320) ............:ccccccccceeeeseeeeeee 221
Bodega Harbor and Tomales Bay, California
(from NOS chart 18640) .00..........:cccccccceeeeeeeees 223
Svaerholthavet, Norway
(from Fisheries Case (U.K. v. Nor.)) 0.0... 224
Seasonal variation in sea level (adapted
from Ak. Ex. 84A-802) .0......cccccccccceeeseeeneeeeees 239
NOS estimates of mean high water and error
band compared to 1981 measurements of
SITTIN ctteh iderndieencsenetoernesdeeussesneuccsseete 252
9.1.
9.2.
ILLUSTRATIONS
Alaska’s estimates of mean high water and
error band compared to 1981 measurements
OE Tre BD cccaccncqsorentapeetisnrpneenneeeegeee 256
Mean high water adjusted for weather compared
to 1981 measurements of Dinkum Sands ......... 265
1982 elevations of Dinkum Sands ..................0000: 276
1983 elevations of Dinkum Sands ....................000+: 277
The ARCO pier and the 1976 extension ............... 312
The parties’ positions on the National
Petroleum Reserve—Alaska: panel 1,
Icy Cape to Peard Bay ..............c0sseceseeees facing 348
The parties’ positions on the National
Petroleum Reserve—Alaska: panel 2,
Point Barrow to Smith Bay .................... facing 348
The parties’ positions on the National
Petroleum Reserve—Alaska: panel 3,
Smith Bay to Harrison Bay .................... facing 348
Peard Bay (from NOS chart 16084) ........... facing 352
The parties’ positions on the Arctic
National Wildlife Refuge: panel 4 ......... facing 450
The parties’ positions on the Arctic
National Wildlife Refuge: panel 5. ......... facing 450
Table of Authorities
SUMMARY OF CONTENTS
Page
SI ertisnictannensmnennntdimmnsicnemnnaretitbidiinheliiephetiaditiicisesddatished xii
III <cnccsncnpicinensannicnttentiliidibitinelaishadiliitiitunbiteiiaih XXV
III tsichinoveseinmennesemnnsscicutininiannsssnsitidaianlinanieiealiniceabebabélin XXV
IIIT teeliichausticdhasneniihehnindhedeinadamandiniasonaieensasatihiieekedibsdeisd XXVi
ERIS RSIS ADIT Sah ed BA Bw Wee ee Pe XXVi
SE Shalit nidsicaciinddinindeaesihianioaihtpeiniiectandenises XXxXi
EE ee eee See ee ee ee XXXi
ESSE aT AO Oe OCS Ws LT ee eT ae OE XXXi
Administrative and executive materials ....................... Xxxii
EG ER Sea oe een Xxxii
ESE ESET 00 Te Xxxiii
RII OE III i ccisncctcusisosvschsneisscctontseterccnson XXxXiii
Department of Commence .................:c.ssscceeeeeseeeees XXxxiii
Department of the Interior ...................ccccceseeeeeeeees XXXiV
_ Nea XXXiV
II tds sinc titnanttenetinitintineboineneans XXXiV
Withdrawal applications and amendments .......... XXXV
tl ES RSS ET a XXXV
EE EE A A a XXXV
Departement Of the Navy ..............cccccccssssccsssscccsseees XXXVi
Department of the Army .................c:cccccsssccssssceeees XXXVi
ee EES ee a a, eee. XXXVi
SA II ainsi sneisidhcinadnestinsititdatninecctntitatitia XXXVil
i handel acinlsitiandenencitdtincavennncls XXXVii
Submerged Lands Act (1953) .........cccccccccccsceeeeeeees XXXVii
So fg A ESTE XXXVii
Pe iiss cnccnncteaniipnenccsianiniana XXXVili
Alaska Statehood Act (1958) .............ccccccseceeeenees XXXViii
| ee XXxix
RRR RR PLANES ARES ERE SR ie aio ee XXXix
xii TABLE OF AUTHORITIES
er I, sii vidcinidtdaniedidedesincnatetbsnnvecnewnensneen xl
League Of Nations .............csssessseeresesssesssenseseseseoees xl
SIESTA RT TEE TE xl
Pleadings, briefs, argument .................c-sceeeeeeeeeenneeenes xiii
United States v. California ....................cccseccsceseeeeeees xiii
United States v. Louisiana ....................ccccsecceeseeeeenees xliv
Cnn SII... ceusiasensenssentncnmnssssnsntiniads xlv
nr xlv
I son vitcsicinittseincctncitiinnndninentnivnttannremactsibibites xl vi
Cases
Alaniz v. Tillie Lewis Foods, 572 F.2d 657 (9th
Cir.), cert. denied, 439 U.S. 837 (1978) ...........cceee00+ 527
Alaska v. Ahtna, Inc., 891 F.2d 1401 (9th Cir.
1989), cert. denied, 495 U.S. 919 (1990) ............. 422-23
Alaska v. United States, Civ. No. J75-13 (D.
Alaska; renumbered No. A78-069; partial con-
sent judgment entered Dec. 7, 1984; dismissed
DED. BE, WIND cccccstivccvncesecsecccesscensenssoencenosoesveeponccessosces 5
Alaska v. United States, Civ. Nos. A83-343, A84-
435, and A86-181 (D. Alaska, consolidated and
stayed pending resolution of No. 84, Original) ......... 347
Alaska Boundary Arbitration (U.S. v. Gr. Brit.),
(1903), reprinted in Proceedings of the Alaskan
Boundary Tribunal, S. Doc. No. 162, 58th
Cong., 2d Sess. (1903-04) and excerpted in Ak.
Oy SS 8 a ae ee See 29, 53,
54, 61-66, 95, 97, 105-07, 127, 372, 400
Alaska Pacific Fisheries v. United States, 248 U.S.
it SER 399-400, 402-03, 410, 413, 420
In re American Beef Packers, Inc., 457 F. Supp.
TS ey Seen 538
CASES : xiii
American Farm Lines v. Black Ball Freight Service,
Fe TE tictittinciiclstcaninilliibbinnpensbitanenes 334
Amoco Production Co. v. Village of Gambell, 480
Ds Fe Gee aittetccctinicnnisiiiticctchlitakgbiininncvetines vee 409
The Anna, 165 Eng. Rep. 809 (Adm. 1805) ................... 150,
271-72, 290, 291-92, 304
Arizona v. California, Report of Special Master
Simon H. Rifkind (1960), approved in part and
disapproved in part, 373 U.S. 546 (1963) ..........cc00008. 12
Arizona v. California, Memorandum and Report on
Preliminary Issues by Special Master Elbert P.
Tuttle (1979), leave to file exceptions denied,
444 U.S. 1009 (1980); reviewed together with
final report, 460 U.S. 605 (1983) ....... 516, 523, 524, 554
Arizona v. California, 444 U.S. 1009 (1980) ................. 516
Arizona v. California, 460 U.S. 605, 103 S. Ct.
NE CED Gilicictingiabistbieimssesl 516, 522-23, 526, 547-48
Arnold v. Morton, 529 F.2d 1101 (9th Cir. 1976) .......... 430
Atlantis Dev. Corp. v. United States, 379 F.2d 818
ee ae SD ictiniindh cent diicindiceeintinecteineentnccnetnns 530-31,
532, 533, 534-35, 539-40, 541, 544, 547
Beecher v. Wetherby, 95 U.S. 517 (1877) .........ccccceeeseees 44]
Borax Consolidated v. Los Angeles, 296 U.S. 10
ES ESN SET a Sena 234-35
California v. Arizona, 440 U.S. 59 (1979) ......cccccccccecceeeeees 5
California ex rel. State Lands Comm'n v. United
States, 457 U.S. 273 (1982) ............+.- 5, 6, 392, 393, 394
Cascade Natural Gas Corp. v. El Paso Natural Gas
ig, ee I ehiictnti hccitthitibeddiciacstcueiecesece 548
Clark v. Sandusky, 205 F.2d 915 (7th Cir. 1953) ........... 532
XiV TABLE OF AUTHORITIES
Choctaw Nation v. Oklahoma, 397 U.S. 620
1 a ns 387, 395, 402
Cinque Bambini Partnership v. State, 491 So. 2d
508 (Miss. 1986), aff'd sub nom. Phillips Petro-
leum Co. v. Mississippi, 484 U.S. 469 (1988) ........... 379
Citizens to Preserve Overton Park, Inc., v. Volpe,
4O1 UG. 402 CIDT) ...cccsccerscccccrcscsrrccsscccccvccssssscsessose 332
Confederated Salish & Kootenai Tribes v. Namen,
665 F.2d 951 (9th Cir. 1981), cert. denied, 459
U.S. GIF (TDBZ) .nreccevvcnvesecescesespessenscsscensscosonsvcces 420, 421
Corby Recreation, Inc. v. General Elec. Co., 581
F.2d 175 (Sth Cis. 1978) .............ccccccccsesserseseeeeoes 531-32,
540, 541-42, 544, 547
Corfu Channel Case, 1949 1.C.J. Rep. 4 ......cccseeseeeseeees 154
Coyle v. Smith, 221 U.S. 559 (U9) ....ccceseeseeeeeeeeeeeeenes 384
Dalva v. Bailey, 158 F. Supp. 204 (S.D.N.Y. 1957) ...... 532
Delimitation of the Continental Shelf (U.K. v. Fr.),
18 R. Int’ Arb. Awards 3 (1977) .........:cccceseeceeeees 301-02
Diaz v. Southern Drilling Corp., 427 F.2d 1118 (Sth
Cir.), cert. denied, 400 U.S. 878 (1970) .........eccee00e 527,
540, 544, 547
Re Dominion Coal Co., 40 D.L.R. 2d 593 (Sup. Ct.
DED. BOGDD cncstnteccscscescccersssinttiienssiommastsvinensininiocies 204-05
Edmondson v. Nebraska ex rel. Meyer, 383 F.2d
123 (tha Cir. 1967) ......cccccscocrcrscscrscccccscescscsecsoseossosees 538
Federal Crop Insurance Corp. v. Merrill, 332 U.S.
SED CIB G FD eccineccccccesesesncorscnnsesteinetensemerentanienscesassentabin 335
Finch v. Weinberger, 407 F. Supp. 34 (N.D. Ga.
1975), aff'd sub nom. Cash v. Mathews, 425
UB. DET (IBID ccccreccocsocccosssccsrccccscsopecsccostonasonsncasnones 527
CASES XV
Fisheries Case (U.K. v. Nor.), VOSV 1.0.3. 116 coccccccccceeee 53,
83, 93-98, 100, 191, 194, 207, 208-09, 218,
222, 224
Florida v. Georgia, 58 U.S. (17 How.) 478 (1854) ... 553-54
Florida Power Corp. v. Granlund, 78 F.R.D. 441
I I i cd 533
Francis v. Chamber of Commerce of the United
States, 481 F.2d 192 (4th Cir. 1973) oo... 531, 532
Hans v. Louisiana, 134 U.S. 1 (1890) .o....ccccccccccecccseeeees 520
Hobson v. Hansen, 44 F.R.D. 18 (D.D.C. 1968) ............ 534
Hynes v. Grimes Packing Co., 337 U.S. 86
Se ctiinuintininhaielehiitioedantcssaniiintds 409-10, 413, 415, 428
Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ..... 549-50
International Tank Terminals Ltd. v. M/V Acadia
Forest, 579 F.2d 964 (Sth Cir. 1978) ....0..00.00.00.. 543, 544
Inupiat Community v. United States, 548 F. Supp.
182 (D. Alaska 1982) (Civil No. A81-019),
aff'd, 746 F.2d 570 (9th Cir. 1984), cert. denied,
474 U.S. 820 (1985) .........ccccceeee 9, 528, 558, 560, 561
Justheim v. McKay, 123 F. Supp. 560 (D.D.C.
1954), aff'd, 229 F.2d 29 (D.C. Cir.), cert.
GOMER, SOD UB. FE9 CRGBGD oseccseccnciccscesensvescivcesococece 427
Kaufman v. Wolfson, 137 F.Supp. 479 (S.D.N.Y.
EAD LET Bw LLG Re 532
Kheel v. American S.S. Owners Mut. Protection &
Indem. Ass'n, 45 F.R.D. 281 (S.D.N.Y. 1968) ..... 534-35
Knight v. United States Land Ass'n, 142 U.S. 161
EE OAL NED ES 378, 380
Kozak v. Wells, 278 F.2d 104
Se WU aid ee ee 532, 536, 539
xvi TABLE OF AUTHORITIES
Legal Aid Soc'y v. Dunlop, 618 F.2d 48 (9th Cir.
19BD) ..crecccocssrcrsrrscreesesorsnessesoossonssesoonssssocsooessessoosososes 527
Liberty Mut. Ins. Co. v. Pacific Indem. Co., 76
F.R.D. 656 (W.D. Pa. 1977) ....ccccccccccesseeeeeeeeeseneenenes 534
Louisiana v. Mississippi, 202 U.S. 1
(IDBBD scccscccscccssccccorionseseocesanntinn 66-67, 92, 112, 115, 116
McDonald v. E. J. Lavino Co., 430 F.2d 1065 (Sth
Che. 1970) ...ccccecccscccescccscccscccsnsesenossenssssbosssoostnssoosorsess 527
MacDonald v. United States, 119 F.2d 21 (9th Cir.
1940), modified sub nom. Great Northern Ry. v.
United States, 315 U.S. 262 (1942) ...... 542-43, 544, 548
Mahler v. Norwich & N.Y. Transp. Co., 35 N.Y.
BSB (IDES) ..cccccceccocssccevssevcosecnansonstnns 58-59, 91, 116, 173
Mammoth Oil Co. v. United States, 275 U.S. 13
COGRFD <cssiticsveinzessiaainiian OGRE IRS BD MB Bes 425
Manchester v. Massachusetts, 139 U.S. 240 (1891) .. 66, 115
Martin v. Travelers Indem. Cc., 450 F.2d 542 (Sth
Che. 1DT1) secccccccceccsescceconecsosstoonneseonatenveensbetbonarettonasens 531
Martin v. Waddell, 41 U.S. (16 Pet.) 367
(1OED) ...rcccrsccscossasscssbovessssnnnansiennianne 382, 383, 387, 402
Maryland v. Louisiana, 451 U.S. 725 (1981) ......... §22, 523
Metlakatla Indian Community v. Egan, 369 U.S. 45
(EDGED) .....00cccrcccoccesesccessessdensecosincesesioesienseteesubecsennnnies 400
Minnesota ex rel. Alexander v. Block, 660 F.2d
1240 (8th Cir. 1981), cert. denied, 455 U.S.
1007 (1962) ..cccccscosecccesccscecccrescscsssesbovssenessssctososssesonss 498
Monaco v. Mississippi, 292 U.S. 313 (1934) ......-0eeee 520
Montana v. Unit.4 States, 450 U.S. 544 (1981) ........000+ 10,
340-48, 366, 382-445 passim, 453, 454, 455,
461, 478, 495, 496, 499
CASES XVii
New Hampshire v. Maine, 426 U.S. 363 (1976) ..... 307, 351
New Jersey v. New York, 345 U.S. 369 (1953)
Gee Gendinddiasbestacuinessdssecudstesdteteteccesccecscees 521, 523
New Mexico v. Aamodt, 537 F.2d 1102 (10th
Cir. 1976), cert. denied, 429 U.S. 1121
EE TE eee 541, 544, 547
Ex parte New York (No. 1), 256 U.S. 490 (1921) ........... 521
Nuesse v. Camp, 385 F.2d 694
ET lita ciacnttnetetenssccannecs 531, 532, 536, 538
Office of Personnel Management v. Richmond, 496
EEE 335
Ohio v. Kentucky, 410 U.S. 641 (1973) ....ccccccccccceccccceeenees 7
Oklahoma v. Texas, 258 U.S. 574 (1922) 0.0.0.0... $22, 523
Oregon ex rei. State Land Board v. Corvallis Sand
& Gravel Co., 429 U.S. 363 (1977) .......000 384, 92-93
Otis Elevator Co. v. Standard Constr. Co., 10
F.R.D. 404 (D. Minn. 1950) .0.........cccccccccccceceeeeeeees 532
Packer v. Bird, 137 U.S. 661 (1891) .........cccccccccccceeeeees 387
Pan American Petroleum & Transp. Co. v. United
TET PIII ds cctcececsanenesenccasanesssccsseccee 425
Phillips Petroleum Co. v. Mississippi, 484 U.S. 469
STII Getailibdlniniiibeatiasebebddntsscceusreceesesceesce 348, 378-79, 402
Pierson v. United States, 71 F.R.D. 75 (D. Del.
IIT eisinsainiiteliaialernsineennsanentonqsonaqnenetsetecenseccaceee 539, 545
Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845) ............. 15,
19, 50, 51, 113, 174, 346, 348, 381-84, 390,
391, 392, 402, 451, 455
Prentice v. Northern Pac. R.R., 154 U.S. 163
Ae Rh er 369-70, 482
xviii TABLE OF AUTHORITIES
Service v. Dulles, 354 U.S. 363 (1957) .......0-seeeeeeeeeenens 334
Shively v. Bowlby, 152 U.S. 1 (1894) ......ceeeeeeeeee 15, 348,
384-86, 397, 402, 403, 414, 415, 456, 461
Smith v. Reeves, 178 U.S. 436 (1900) .......-cceceecereeeeerens 521
South Dakota v. Nebraska, Report of Special Mas-
ter Oren Harris (1977), exception overruled, 434
U.S. 948 (1977) ....ccccccscccecsevcenseneesensssenesnennenensensnenes 524
South Dakota v. Nebraska, 434 U.S. 948 (1977) ........-+ 522
Stadin v. Union Elec. Co., 309 F.2d 912 (8th Cir.
1962), cert. denied, 373 U.S. 915 (1963) ... 539, 544, 546
Sullivan v. United States, 348 U.S. 170 (1954) ......... 334-35
Texas v. Louisiana, 416 U.S. 965 (1974) ........c..cccceeeeees 523
Texas v. New Mexico, Report of Special Master
Charles J. Meyers (1986), exceptions sustained
in part and overruled in part, 482 U.S. 124
(1987) ........ceccscercessrrerecssensonensersnsenenenssnsnssosesensnnensenenees 12
Texas v. Oklahoma, Report of Special Master John
A. Carver, Jr. (1981), ordered filed, 450 U.S.
905; acted upon, 450 U.S. 1038 (1981)... 524
Texas & Pac. Ry. v. Marshall, 136 U.S. 393 (1890) ...... 320
Trbovich v. United Mine Workers, 404 U.S. 528
| 538, 539, 540, 544
United States v. Alaska, 422 U.S. 184 (1975) (Cook
en 6, 45, 52, 119-21, 163
United States v. Alaska (No. 84, Original)
442 U.S. 937 (1979) .....c.ecccesesesrseersensesesesesressennens 3, 517
444 U.S. 1065 (1980) .........:cccccceececeerseenenennnnnns 4, 6, 517
445 U.S. 914 (19D) ........0c.cccerreereeesererenseesssrceenes 4,517
452 U.S. 913 (1981) .........ccccccereeeeeeeeeneee 8, 515, 518, 560
465 U.S. 1018 (1984) ........ccccccccceereeeesennenenennennnnnnnnnnenns 9
CASES .
XIX
United States v. Alaska, 503 U.S. 569 (1992)
(Norton Sound) ..............ccccceeeees 171, 306, 313, 325, 330
United States v. Alaska, 423 F.2d 764 (9th Cir.),
cert. denied, 400 U.S. 967 (1970) (Kenai Moose
SUN necseniiteettaneiiabantentetenesinemaeeaedn cs 401, 420-21
United States v. Aranson, 696 F.2d 654 (9th Cir.),
cert. denied, 464 U.S. 982 (1983) .ooccccccccccccccesesceeeees 420
United States v. Brown, 552 F.2d 817 (8th Cir.),
cert. denied, 431 U.S. 949 (1977) oooocccccccccccecceeeeeeens 498
United States v. Caceres, 440 U.S. 741 er 334
United States v. California, 332 U.S. 19 (1947) ....c..00.... 15,
16, 56, 76, 336, 391-92, 394
United States v. California, 332 U.S. 804 (1947)
Sa I cectiecnctticcnieesiciticweticeeheseeni 77, 79, 100
United States v California, 334 U.S. 855 (1948)
(ordering appointment of Master) .0.0.0.00.0.0....cccccoccsoee. 77
United States v. California, 337 U.S. 952 (1949
(directing Master to proceed) 200.000... ccc... iiinssanbictbe 77
United States v. California, Report of Special
Master William H. Davis (under order of June
27, 1949) (1951) (Ak. Ex. 85-90), reprinted in
The Reports of the Special Masters of the United
States Supreme Court in the Submerged Lands
Cases, 1949-1987 (Michael W. Reed, G.
Thomas Koester, & John Briscoe eds., 1991),
OD Ul cncindncmpitntiicmatietenne ene 78, 87-88, 98, 101
United States v California, 341 U.S. 946 (1951)
(ordering a briefing on the Master’s report) ................ 98
United States v. California, 342 U.S. 891 (1951)
(ordering the Master to proceed with hearings) ........... 98
XX TABLE OF AUTHORITIES
United States v. California, Report of Special Mas-
ter William H. Davis (under order of Dec. 3,
1951) (1952), reprinted in Reed, Koester, &
Briscoe, supra page xix, at 65, and in 1 Aaron
L. Shalowitz, Shore and Sea Boundaries (U.S.
Dep’t of Commerce Pub. 10-1, 1962), at 329
(U.S. Ex. 85-205) ............. 100, 103-05, 152-53, 323-24
United States v. California, 375 U.S. 927 (1963)
(authorizing a supplemental complaint and new
exceptions to the Master’s report) ...........c...-eeeeeeeee 152
United States v. California, 381 U.S. 139 (1965) ...... 17-18,
21, 34-54 passim, 104~-72 passim, 177, 214,
228, 293, 306, 313-14, 323-25, 329, 330,
333, 350, 371
United States v. California, 382 U.S. 448 (1966)
(supplemental decree) ...............ceseeeeeeeeerennenees 234, 330
United States v. California, 432 U.S. 40 (1977)
(second supplemental decree) ............ 218, 222, 223, 351
United States v. California, 436 U.S. 32 (1978)
(Channel Islands National Monument) ..................... 392,
394, 401-402
United States v. California, 447 U.S. 1 (1980)
(effect of piers on the coastline) ................c00000 315-16
United States v. City of Anchorage, 437 F.2d 1081
(9th Cir. 1971) (Alaska Railroad) ...............006+. 401, 420
United States v. Cook, 86 U.S. (19 Wall.) 591 (1873) ... 441
United States v. Florida, 363 U.S. 121 (1960) ............... 142
United States v. Florida, Supplemental Report of
Special Master Albert B. Maris (1975) (U.S. Ex.
85-507), reprinted in Reed, Koester, & Briscoe,
supra page xix, at 575, decree entered, 425
4 00d 61
CASES xxi
United States v. Florida, 425 U.S. 791 (1976) .......... 61, 351
United States v. Holt State Bank, 270 U.S. 49
Res ae es FR Oe 386-87, 461
United States v. IBM, 62 F.R.D. 530 (S.D.N.Y.
FT BL ae eee 539, 544, 545
United States v. Louisiana, 339 U.S. 699 (1950) .............. 6,
53, 84, 86, 89, 110, 137, 161
United States v. Louisiana, 340 U.S. 899 (1950)
SNES ,sihiiecciirneniricntitnmniiebinlttiiadettitntiataemssins 110
United States v. Louisiana, 350 U.S. 990 (1956)
(granting leave to file complaint) .....................0000000- 110
United States v. Louisiana, 351 U.S. 978 (1956)
(enjoining new development in the disputed area
unless by agreement of the parties filed with the
ES en nee 110
United States v. Louisiana, 354 U.S. 515 (1957)
(finding that all the Gulf States should be parties) ..... 112
United States v. Louisiana, 363 U.S. 1 (1960) ........00.c0000+. 6,
114, 132, 142, 151, 400, 493—95
United States v. Louisiana, 364 U.S. 502 (1960)
EO thy SE RE SS 142
United States v. Louisiana, 382 U.S. 288 (1965)
(supplemental decree) ...............cccccccceeeeeee 6, 155-57, 158
United States v. Louisiana, 389 U.S. 155 (1967)
(concerning jetties off the Texas coast) ................. 37, 43
United States v. Louisiana (Texas Boundary Case),
ee a ce 293
United States v. Louisiana (Louisiana Boundary
Case), 394 U.S. 11 (1969) ............ 6, 16, 34-170 passim,
183-85, 199, 203-05, 230, 272, 291, 293,
305-06, 314-16, 324, 333, 338, 350
xxii TABLE OF AUTHORITIES
United States v. Louisiana, 404 U.S. 388 (1971)
(third supplemental decree) ..............:cessceeeeeeereneeeeeeees 6
United States v. Louisiana, 409 U.S. 17 (1972)
(fourth supplemental decree) ............cccccssseeerereeeeeeeneees 6
United States v. Louisiana, Report of Special Mas-
ter Walter P. Armstrong, Jr. (1974) (U.S. Ex. 85-
415), reprinted in The Reports of the Special
Masters of the United States Supreme Court in
the Submerged Lands Cases, 1949-1987
(Michael W. Reed, G. Thomas Koester, & John
Briscoe eds., 1991), at 181, and in 59 1.L.R. 249,
exceptions overruled, 420 U.S. 529 (1975) .......0000000 41,
48, 80-81, 151-52, 161, 162, 184, 292
United States v. Louisiana (Louisiana Boundary
Case), 420 U.S. 529 (1975) ........ 6, 41, 48, 152, 184, 292
United States v. Louisiana, 422 U.S. 13 (1975)
CORRES GGT cncecccetecccccststittitarmcinsccctesctzensenceqesse 6
United States v. Louisiana, 446 U.S. 253 (1980)
(interpreting the interim agreement of October
FD. adisdicenrenicsidiliheniatasividhinisinbititatinesnnepeenmseess 6, 111
OE EE URES LIN CP OEM 6
(Special Master discharged) .................c0:cseeeeeeeeeeeeeeees 6
United States v. Louisiana (Alabama and Missis-
sippi Boundary Case), Report of Special Master
Walter P. Armstrong, Jr. (1984) (U.S. Ex. 85-
503), reprinted in Reed, Koester, & Briscoe,
supra, at 349, confirmed in part, 470 U.S. 93
(BPGG) ncnsoceserecssessseccnossconssonsssonmnnpenbenpetaiataviecsonenpooeeses 30,
53, 54, 55, 80, 83, 92, 94, 97, 103
CASES xxiii
United States v. Louisiana (Alabama and Missis-
sippi Boundary Case), 470 U.S. 93 (1985) .....cccccccceeees 16,
29, 34, 44, 45, 52-55, 58, 67, 70, 79, 89, 94,
95, 133, 135, 158
United States v. Maine, Report of Special Master
Albert B. Maris (1974), reprinted Reed, Koester,
& Briscoe, supra page xxii, at 593, exceptions
overruled, 420 U.S. 515 (1975) cocccccccccsccccsesseseeceseeves 273
United States v. Maine, 420 U.S. 515 (1975) ........... 273, 392
United States v. Maine (Massachusetts Boundary
Case), 452 U.S. 429 (1981) (Massachusetts Bay
CONE TD a cidicichiccnsheddlbdsccdiadbitiensecsseesecccce 351
United States v. Maine (Rhode Island and New York
Boundary Case), Report of Special Master
Walter E. Hoffman (Oct. Term, 1983) (U.S. Ex.
85-125), reprinted in Reed, Koester, & Briscoe,
supra page xxii, at 809, exceptions overruled,
TE 210
United States v. Maine (Massachusetts Boundary
Case), Report of Special Master Walter E.
Hoffman (Oct. Term, 1984) (U.S. Ex. 85-903),
reprinted in Reed, Koester, & Briscoe, supra
page xxii, at 703 (Nantucket Sound and Vine-
yard Sound), exception overruled, 475 U.S. 89
CE ee a ee Te 57-58
United States v. Maine (Rhode Island and New York
Boundary Case), 469 U.S. 504 (1985) oo.ccccccccccececsesoes 60,
89, 184-85, 200, 209-12, 214
United States v. Maine, 475 U.S. 89 (1986)
(Nantucket Sound) ...............cc0s00c0000 45, 58, 135, 173-74
United States v. Mendoza, 464 U.S. 154 (1984) oo... 30
XXiV TABLE OF AUTHORITIES
United States v. Midwest Oil Co., 236 U.S. 459, 59
CBG, GES CRIED sesennticcsintesmtasin 406, 411, 412, 413, 473
United States v. Nixon, 418 U.S. 683 (1974) ................. 334
United States v. Oregon, 295 U.S. 1
CRED ccralatusintiiinpilisaaisscsiipuiinniniiittnigniass 386-87, 403, 404
United States v. Texas, 339 U.S. 707 (1950) ...........ccc00000 84
United States ex rel. Accardi v. Shaughnessy, 347
Sh eG iteatierenennimmnepennn » 334
Utah v. United States, 394 U.S. 89
CRREED ccicercititineninmncgaininn 519, 521-22, 551-52
Utah v. United States, 780 F.2d 1515 (10th Cir.
1985), rev'd sub nom. Utah Div. of State Lands
v. United States, 482 U.S. 193 (1987) .....cc..-...-- 401, 444
Utah Div. of State Lands v. United States, 482 U.S.
SOD CODED icincenittectelescnindustidetlabeih inti 11, 347-48,
366, 382-445 passim, 454-56, 461, 495-99
Utah Power & Light Co. v. United States, 243 U.S.
I aa! oT 335
Vermont v. New York, 417 U.S. 270 (1974) ..c......-- 307, 351
Virginia v. Westinghouse, 542 F.2d 214 (4th Cir.
SOU ckicinssetiieianidedaieralaiec nei tetetinmitiatninstt 543
Vitarelli v. Seaton, 359 U.S. 535 (1959) ..ccccccssssessvssvees 334
Walden v. Elrod, 72 F.R.D. 5 (W.D. Okla. 1976) ... 539, 545
Walpert v. Bart, 44 F.R.D. 359 (D. Md. 1968) .............. 527
Wisconsin v. Baker, 698 F.2d 1323 (7th Cir.), cert.
denied, 463 U.S. 1207 (1983) ....ccccccocssssseseseveeees 404, 420
TREATIES XXV
Constitutions
U.S. Constitution
RET A i SR 432
i 5, 517
BR i ee oO I coca ca cecececceconccceseseceecemnce 384
Art. IV, § 3, cl. 2
(property clause) ................... 397, 398, 406, 456, 498
TE ihthintaciats mesdndaslahtinctdoctenutiniimacbensntne 520-24
Alaska Constitution .
FY PORNO ROR ONE CE REL RRe tee nee 34
| ES SSE ae a 400, 443
Treaties
Second Treaty of Fort Laramie, 15 Stat. 649
Ee eT 386, 422
North Sea Fisheries Convention, May 6, 1882, 160
ree ws 63, 290, 296
Convention on the Territorial Sea and the Contigu-
ous Zone, done Apr. 29, 1958, 15 U.S.T. 1606,
oe Ee ee 17-326 passim, 503
Article 3 ........... 21, 44, 229, 304, 314-16, 323, 333, 337
FOS Sieesticinovciveen 25-27, 29, 32, 43, 45-49, 134, 142,
153, 158-72, 503
ER Tt NE Sei AR POR. 304
IED cle dtniettidiireliinicckstemibenditdenhdidbiceeclidstesidloulhe 161
ESE RT ETC Y ees ee Se Fe 21
0 SE a ee ae TS ST 22
SE conititibihecceendintntincteeintercinn 44, 60, 153, 176, 371
SE a cme 195
| 181-226 passim
rn Lee 181
XXVi TABLE OF AUTHORITIES
FT FAD ccctenevensiniibianiiincltiiaasitiaiiueniiinn 44, 51, 58
FN le inicecinesih ctetcihciiseremaiiiihidi ai 44, 314-16, 323, 337
BE ED ccttitndiitaniiniids 21, 228-29, 234, 269-310 passim
SITET initicctnntateseneninedaniaibiiaaiieeaeiadiiatll 230, 304, 338
SEITIIIEE TETT cxincncciacinidutiemnsenuniuantninnieimendideeabieaiiieiumadia 130
pS SS a SAAT RH LOE, fA ee an SEE 44, 371
Vienna Convention on the Law of Treaties, done
May 22, 1969, 1155 U.N.T.S. 331. ..........ccccssersesersees 186
United Nations Convention on the Law of the Sea,
done Dec. 10, 1982, in The Law of the Sea, U.N.
RG RS, ee ae 17, 198
Statutes
FEDERAL
Act of Apr. 8, 1812, ch. 50, 2 Stat. 701 (admitting
FY a eee 494
Act of Mar. 3, 1891, ch. 561, 26 Stat. 1095
OB BG scccitcieviectntiinttinintnniedeccissitnlitiiteiattivaenensvininne 424
§ 15 (codified at 25 U.S.C. § 495 (1988)) ................. 399
Act of Feb. 11, 1897, ch. 216, 29 Stat. 526 ................... 412
Act of May 14, 1898. See Alaska Right of Way Act
Act of June 6, 1900, ch. 786, § 26, 31 Stat. 321,
329-30 (current version at 30 U.S.C. § 49a (1988)) .. 408
Act of June 14, 1906, ch. 3299, 34 Stat. 263
(formerly codified as amended at 48 U.S.C.
ED cxtcschatcinstahinslltisibanstiaihinntinkideinisagenbinitietsivin 119
Act of June 26, 1906, ch. 3547, 34 Stat. 478
(Alaska commercial fisheries law) (formerly
codified as amended at 48 U.S.C. §§ 230-239,
IED tadtdaivaibdinindiiitietele ee tS 462, 465
STATUTES
Act of June 25, 1910. See Pickett Act
Act of Aug. 24, 1912, ch. 369, 37 Stat. 497
(amending the Pickett Act, infra) ............cccccccccc.-..... 475
Act of Aug. 24, 1912, ch. 387, 37 Stat. 512................... 415
Act of June 6, 1924, 43 Stat. 464 (Alaska com-
mercial fisheries law) (formerly codified as
amended at 48 U.S.C. §§ 221-228) (see also
, 2 fg aed luk ea
Act of May 1, 1936, ch. 254, § 2, 49 Stat. 1250
(amending the Wheeler-Howard Act, ch. 576,
48 Stat. 984 (1934)) (repealed 1976) ..................
Act of May 31, 1938, ch. 297, 52 Stat. 588
Act of July 1, 1943, ch. 183, 57 Stat. 301
(Alaska game law) (formerly codified as
amended at 48 U.S.C. §§ 192-211) ooo...
Act of Aug. 8, 1946, ch. 916, § 1, 60 Stat. 950
(amending the Mineral Leasing Act of 1920,
infra) (current version at 30 U.S.C. § 181
XS Ata 435
Act of July 31, 1947, ch. 406, 61 Stat. 681 (disposal
of materials on public lands) (codified as
amended at 30 U.S.C. §§ 601-604 ( PS 450
Act of Aug. 8, 1947, ch. 514, 61 Stat. 916..................... 408
a — Sept. 7, 1957, Pub. L. No. 85-303, 71 Stat.
Act of Feb. 28, 1958, Pub. L. No. 85-337, § 1(2),
72 Stat. 27 (codified at 43 U.S.C. § 155(2)
SSE TT Oo eee
ba of July 3, 1958, Pub. L. No. 85-505, 72 Stat.
6 Fe ES aD oe ee oe
XXViii TABLE OF AUTHORITIES
Alaska National Interest Lands Conservation Act,
Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codi-
fied primarily at 16 U.S.C. §§ 3001-3233
COTE etccsceceqqneqnecstcenrinecnagipeimaginepreancroneees 409, 451
Alaska Native Claims Settlement Act, 43 U.S.C.
§§ 1601-1629 (1988 & Supp. V 1993) (enacted
ES BRE OIE RES ET ye 423,
528, 529, 531, 535, 537, 550, 551, 552
Alaska Right of Way Act, ch. 299, 30 Stat. 409
(May 14, 1898) (current version primarily at 43
U.S.C. §§ 942-1 to 942-9 (198B8)) .........ccccccreeeeeereeees 406,
410-11, 414—16, 437, 438, 476-77
Alaska Statehood Act, Pub. L. No. 85-508, 72 Stat.
339 (1958), reprinted as amended in 48 U.S.C.
note preceding § 21 (1988) ..........c.sccccccereeereeerneerees 18,
21, 32-34, 34-35, 37, 50, 109, 117. 730-31,
436, 438, 439, 440, 442, 448, 453, 462
BD cecssenscsesuibisecesbishahwanaliipisidiitciestbdiabliciasalibesaatcunite 34
0D snccccsscenscseasennisciacesisiicendsdusbesiiiasiaidiadadbisstbitdsitalabbaiial 34
A ccscuncsinatcinncitocmntanvcdiittnininiididitedadiaiad 400, 423, 431, 443
OS sccocainnalaiaciiniaceatapemapstiuentinediiiitemnisiat 229, 431, 443, 457
I ncusssnrescscinnspprepndiniaeiienininiiailile 431, 443
Dn Se ee 229, 462
SIE siisiciensrastciininalisbicadiiliiiadaieh 457, 458, 462-67, 471, 477
BD cnncececien += .ccsctsscinticonasensticiennionssaiianenasnaaalte 462
FE a er ae ae OE ee 443. 44
ST ctimeitotenimmniinn 18, 35, 431, 442, 443, 457, 458, 467
2 ee ae 404, 432-34, 439, 442
Federal Land Policy and Management Act of 1976,
Pub. L. No. 94-579, 90 Stat. 2743
§ 204 (codified at 43 U.S.C. § 1714 (1988)) ............. 407
TET detscscnsepinniiacnaniaiepniiniaundyiniieidasanieebaieeay 407, 473
[i TEED <inarecesesnesinciningtinnsitinatudiiaimseianepeinnee 411, 477
STATUTES xxix
Federal Water Pollution Control Act, Pub. L. No.
92-500, sec. 2, § 404(a), 86 Stat. 816, 884
(1972) (codified as amended at 33 U.S.C.
I 317
Mineral Leasing Act of 1920, ch. 85, 41 Stat. 437
(current version at 30 U.S.C. §§ 181-287 (1988
& Supp. V 1993)) ......... 412-13, 426, 427, 434, 435, 436
Naval Petroleum Reserves Production Act of
1976, Pub. L. No. 94-258, § 102, 90 Stat. 303
(codified as amended at 42 U.S.C. § 6502
TE Ea eee 345, 430, 433
An Ordinance for the Government of the Territory
of the United States north-west of the river Ohio,
art. V (1787), reprinted in | Stat. 51, 53 and in
U.S.C., vol. 1, at li, Hifi (1994) ooo. ccccecccsccccsseeocees-.. 383
Oregon Donation Act, ch. 76, 9 Stat. 496 (1850) ........... 384
Outer Continental Shelf Lands Act, ch. 345,
67 Stat. 462 (1953) (codified as amended
at 43 U.S.C. §§ 1331-1356 (1988 & Supp. V
eth lt AMEE: SIE Bek tS ae 8, 16, 42, 230, 351
Pickett Act, ch. 421, 36 Stat. 847 (June 25, 1910)
§ 1 (repealed 1976) ......... 406-16, 425, 472, 473, 474-75
§ 2 (repealed in part 1976; current version at 43
U.S.C. § 142 (198B)) ..2.....2.0s0cccecececesesess 473, 475, 476
Pub. L. No. 99-272, § 8005, 100 Stat. 82, 151
(1986) (codified at 43 U.S.C. § 1301(b) (1988))
(amending the Submerged Lands Acct, infra) ............. 306
Rev. Stat. §§ 2329-2333 (1878) (current version at
30 U.S.C. §§ 35-38 (1988) ooo. ccccccccccecseceseseeseeeses 412
Rivers and Harbors Appropriation Act of 1899, ch.
425, § 10, 30 Stat. 1121, 1151 (1899) (as
codified at 33 U.S.C. § 403 (1988))
XXX TABLE OF AUTHORITIES
S.J. Res. 54, 68th Cong., Ist Sess., 43 Stat. 5 (Feb.
B, UGDG cnvciinininsitnidvicesscidiibuhiiaiilbiltis Mi ctaaitaditbaoaks 425
Submerged Lands Act, ch. 65, 67 Stat. 29 (1953)
(codified as amended at 43 U.S.C. §§ 1301-1315
(19BB)) ...crcccrscescessoesosssscossscosecnsscasabcsenneeessee 3, 16, 19, 35,
36-44, 50, 109-16, 152-53, 169, 172, 176,
228, 293, 306, 311, 323, 325, 338, 349, 350,
371, 391-94, 401, 451, 456, 486 & passim
§ 2, 43 U.S.C. § 1301 ....cccosscscersscsressororccosssoscossessoees 493
§ 2(a)(2), 43 U.S.C. § 1301(A)(2) -.rceecceeceeereerseeenenenees 16,
36, 38, 176, 313, 381
§ 2(b), 43 U.S.C. § 1301(b) ............. 16, 37, 38, 306, 494
§ 2(c), 43 U.S.C. § 1301(C) ...... 16, 39, 41, 176, 313, 330
§ 2(€), 43 U.S.C. § 1301(€) ......ccccercerreerreeerenenenes 442, 498
8 3, 43 U.B.C. § ISTE ncccrcscccssrsevsrcsssocssccqocenens 16, 442-43
§ 3(a), 43 U.S.C. § 1311(@) «0... ceecsereeeereneeenennensnesnsnenes 36,
176, 313, 392, 432, 458, 498
§ S(a), 43 U.S.C. § 1313(0) ...02.....0ssererceccesorsssesesssrsee 343,
393, 394, 401. 402, 432, 443, 444-45, 458,
467, 468, 470, 477
© D, 43 UBC.§ 15GB cccoccccsessrsvssersesesccesesinesatsonsnsasesoas 16
Sundry Appropriations Act of 1888, ch. 1069, 25
8 § ope 405, 408, 410, 413, 414, 444
Sundry Appropriations Act of 1890, ch. 837, 26
Beat, 371, FOG ncccccceccsssssssivuheobiseteseccletnemetaiinan 405, 406
Trans-Alaska Pipeline Authorization Act, Pub. L.
No. 93-153, title II, 87 Stat. 569, 584 (1973)
(codified at 43 U.S.C. §§ 1651-1655 (1988)) .......... 318,
326-27, 331, 332
28 U.S.C. § 1251(b)(2) (1988) .cccccccsscccvsvveeecnensvnneeseenennneess
28 U.S.C. § 2409(a) (1988) ....ccccvccsssscsscsseesecessssseeeeenennneess
46 U.S.C. app. § 251 (19BB) ........ccccccceeeeeeesnneenerennnnnnnnnns 119
RULES :
XXX
White Act, ch. 272, § 1, 43 Stat. 464 (June 6,
1924), as amended by Act of June 18, 1926,
ch. 621, 44 Stat. 752 (formerly codified at 48
J 4 SER 117-18, 119, 120, 121
STATE
Alaska Stat. Ann. § 38.05.137 (1989) S32 AN Se oe 8
Alaska House Joint Memorial 23, 1959 Session
Laws 434 (Mar. 17, 1959) ooo. occcccccseesecoccc---... 460
FOREIGN
Cuban Law Decree No. 1948 of Jan. i i a 125
Rules
Federal Rules of Civil Procedure
en ahaa lel laa 533
a = eee IS 2 la Rae 524-25, 549
II ectcetesrachchccdenecidsscccsshensesecesnson 519, 527-48
Rule 24(a) advisory committee’ s note,
39 F.R.D. 69, 111 RS GO SR a ee 519
ti ae Ee ea 525-27, 528
= SE eT ae 562
Supreme Court Rules
Rule 9.2, 388 U.S. 937 (1966)... 524
Rule 17.2, 493 U.S. 1116 (1989)...
Ee
Xxxii TABLE OF AUTHORITIES
Administrative and Executive Materials
Exec. Order No. 908 (July 2, 1908), microformed
on Presidential Executive Orders, Nos. 1-7403,
reel 2 (Library of Congress Photoduplication Serv.) . 424
Exec. Order No. 1733 (March 3, 1913), micro-
formed on Presidential Executive Orders, supra,
Exec. Order No. 3797-A (Feb. 27, 1923), micro-
formed on Presidential Executive Orders, supra,
reel 6, reprinted in Joint Statement 18a—20a ....... 343-45,
349, 350, 352-57, 359-64, 366-68, 371-72,
379-80, 405, 406, 416, 421-30, 440, 441,
474
Exec. Order No. 10,355 (1952), 3 C.F.R. 873
(1949-1953), reprinted as amended in 43 U.S.C.
§ 141 note (1988 & Supp. V. 1993) ... 448, 450, 472, 473
Proclamation No. 39, 27 Stat. 1052 (1892) .............. —_—
Proclamation of July 23, 1907, 35 Stat. 2149 ................ 424
Proclamation of Feb. 23, 1909, 35 Stat. 2231 ......... . 423-24
Proclamation No. 3269 (1959), 3 C.F.R. 4 (1959
1963), reprinted in 48 U.S.C. note preceding
§ 21, at 15 (1GEB) ..............c2cceccerevrerrereesereenees 18, 448-49
Proclamation No. 5928, 3 C.F.R. 547 (1988),
reprinted in 43 U.S.C. § 1331 note (1988) ....18, 216, 230
Reorg. Plan No. 2 of 1939, § 4(e), 3 C.F.R. 254,
256 (Supp. 1939), reprinted in 5 U.S.C. app. at
1435, 1436 (1994) .......00..-ccccscersccnovsevssencssresssesesesers 118
Reorg. Plan No. 3 of 1946, § 403, 3 C.F.R. 193,
196 (Supp. 1946), reprinted in 5 U.S.C. app. at
ST I Ci osincscsinhinnnsttiiantinnsionag cuun 356
ADMINISTRATIVE AND EXECUTIVE MATERIALS XXXili
DEPARTMENT OF STATE
Histor ical Studies Division, US. Dep’t of State,
trance, mn gen .
E 85- ¢ 5-12 >. US.
Historical Studies Division, U.S. Dep’t of se
Research Project No. 637, Status of Hecate”
Strait, 1876-1963 (1963) (Ak. Ex. 85-128) ....... 118, 122
Historical Studies Division, U.S. Dep’t of State,
Research Project No. 637B, Status of Queen
aa Sound, 1897-1963 (1963) (Ak. Ex.
| = Oe ee 118, 122
Historical Studies Division, U.S. Dep’t of
Research Project No. 0031-8, Unies Same
Policy Regarding the Oceans and the Law of the
Sea, 1960-1967 (1974), excerpt from 31
Sf 8 ee st fltetiveciiiens 169
DEPARTMENY OF JUSTICE
Seizure in Neutral Waters, | Op. Att’y Gen. 32 (1793) ... 57
Withdrawal of Public Lands, 40 Op. Att’y Gen. 73
PONG Te a ED ain halt hall 406
Title to Naturally-Made Lands Under the Sub-
merged Lands Act, 42 Op. Att’y Gen. 241 (1963) .... 292
DEPARTMENT OF COMMERCE
45 Fed. Reg. 70,296 (1980) (Ak. Ex. 84A-8) ......... 258, 259
National Ocean Survey, U.S. Dep’t of Commerce, 9
United States Coast Pilot (9th ed. 1979) (Ak.
yg EE ieee 87, 139-40, 362, 366, 373, 374
XXXIV TABLE OF AUTHORITIES
Chart No. 1, Nautical Chart Symbols and Abbrevi-
ations (Dep’t of Defense and Dep’t of Com-
merce, 7th ed. 1979) (Joint Ex. a) ...........cccccsceeeeereees 381
DEPARTMENT OF THE INTERIOR
Regulations
43 C.F.R. §§ 295.9-295.11 (Supp. 1953) (promul-
gated, 17 Fed. Reg. 7368, 7677 (1952) ............0-+. 465-66
43 C.F.R. §§ 295.9-295.15 (as promulgated, 22
Fed. Reg. 6613 (Aug. 17, 1957)) ........cccccserceeeerereeees 447
IE cecterentrenpnintersannaeeammanesmacnmncnsditivien 471
§ 295.1 1(a) (1954, Supp. 1962)
E,W. I enstleersetnieremnnatentenntemevemete 452-53, 459
AT aCe 471
FO Fe ee itrrrcitentseccccssnnectrectinstowiintbensoetn 121
EE eee 121
21 Fed. Reg. 5446 (1956) .0.........cccccccsccceeneeeeeees 116-17, 122
SD Ba Be Ge cenecss cece cerrernsvenccnscscccsmnennt 116, 122
OE Fa certrtrcsecrsctanreretentnennevtscceneccities 116
25 Fed. Reg. 7681 (1960) (notice of proposed
revision of fish and wildlife regulations) ................... 116
25 Fed. Reg. 8397 (1960) (revision and
reorganization Of SOC.P.R.) .............cscmssrcseerseosesreess 116
Public land orders
Public Land Order 82, 8 Fed. Reg. 1599 (1943)
(withdrawing public lands for use in connection
with the prosecution of the war), rewoked by
Public Land Order 2215, 25 Fed. Reg. 12,599
en 452, 471, 483
ADMINISTRATIVE AND EXECUTIVE MATERIALS XXXV
Public Land Order 128, 8 Fed. Reg. 8557 (1943) esees 409-10
Pp ie 10 Fed. Reg. 9479 (1945) 345
Order 1749, 23 Fed.
“ae ee
or Order 2213, 25 Fed. Reg. 12,597
ont Re tC CC DeN See tes ea necenatntenteectabiteseeeceeesesesesses..,. 493
Public Land Order 2214, 25 Fed. Reg. 12,598
Cs a 449-50, 476, 477, 479, 493
Public Land Order 2215, 25 Fed. Reg. 12,599
GUID cccoccnesnas er EES Se 452
Public Land Order 2216, 25 Fed. Reg. 12,599
eet inetaricneiieen. 493
Withdrawal applications and amendments
23 Fed. Reg. 364 (1958) 0. 448, 449, 479
23 Fed. Reg. 7592 ( Le eae 474
23 Fed. Reg. 8163 (1958) (Ak. Ex. 74) 0. 469, 492
TTT TALE 492
ee 474
25 Fed. Reg. 10,323 ( nn 474
Administrative cases
State of Alaska, 102 IBLA 357 (Interior Bd. of
Land Appeals 85-768, June i 423
Solicitors’ opinions
(D.C. Cir. 1956), cert. denied, 356U.S. 933 (1956) . 427
XXXVi TABLE OF AUTHORITIES
Memorandum from Acting Solicitor J. Reuel Arm-
strong to the Secretary of the Interior (Opinion
M-36239, Oct. 1, 1954) (Ak. Ex. 85-37, Ak. Ex.
85-335, U.S. Ex. 85-403) .......ccceeceeeeneerenenrnneesenenenenes 115
Memorandum from Deputy Solicitor Edmund T.
Fritz to the Under Secretary of the Interior
(Opinion M-36562, Aug. 21, 1959) (Ak. Ex.
TE secackaneincttcbisialecilsessctdheiessnsibheseesttl 469, 470, 492
Solicitor’s Opinion, 86 Interior Dec. 151 (1978)
(Ak. Ex. 80), supplemented and modified, 100
Interior Dec. 103 (1992) ........ccccereeeeeeneeeenensnenennennns 414,
427, 445, 452, 462, 469, 470-71, 484
DEPARTMENT OF THE NAVY
Navy Department, History of Naval Petroleum Re-
serves, S. Doc. No. 187, 78th Cong., 2d Sess.
(1944) ...ccccscsocorsvcesssssserensensnserssssssosnsnnsosenenses 412, 427-28
Notice of Boundary Descriptics: of Naval Petroleum
Reserve No. 4, 37 Fed. Reg. 10,088 (May 19,
1972) (Ak. Ex. 90) ..ccccsssvecsccccscesssssseos 349-50, 365, 381
DEPARTMENT OF THE ARMY
33 CFR. § 209.120(g)(10) (1976), 40 Fed. Reg.
ee 329-30
33 C.F.R. § 209.120(i(2)( viii) (1976), 40 Fed. Reg.
31,322 Chal 25, IDPS) ccncccneceocoscccccorssnvesssseorone 328, 331
33 CFR. § 209.120, App. C (1976) ....coseesccsneecessnes 317, 318
33 CFR. § 320.4(f) (1994) -cccccccscsssssssssssssssssnossneesseseeee 330
OTHER
U.S. Public Land Law Review Comm’n, One Third
of the Nation's Land (1970) .........0-+-0:seseeeseveneees 395, 432
LEGISLATIVE MATERIALS XXXVii
Report to the President by Emergency Board No
151 (appointed by Exec. Order 11,042, 3 C.F.R.
626 (1959-63)) (Southern Pac. Co. & Brother-
hood of Ry. Clerks, Nat’! Mediation Bd. Case
| i alls, Si aati 309
Legislative Materials
PICKETT ACT (1910)
45 Cong. Rec. 621 (1910) .o.cccccccccccscssssssssssssssesosesssseeson 412
Oil-land Withdrawals and the Protection of
Locators of Oil Lands: Hearings on H.R. 24070
Before the House Comm. on the Public Lands,
Gist Cong., 2d Sess. (1910) oo.cccccccccccsecceseees 412, 413-14
SUBMERGED LANDS ACT (1953)
Submerged Lands: Hearings on S.J. Res. 13 and
Related Bills Before the Senate Comm. on Inte-
rior and Insular Affairs, 834 Cong., 1st Sess.
ORES. 6: a A ch 100
S. Rep. No. 133, 83d Cong,, Ist Sess. (1953) ........... 40, 468
99 Cong. Rec. 2619, 4236 (1953) ooeccccccccesssessesesssen 468, 469
99 Cong. Rec. 4240-43 (1953) oo.cccccccoccsesscssssssseoeseee 40, 41
99 Cong. Rec., pt. 13, at 583, 601-02 (1953) ooo... 486
ACT OF SEPTEMBER 7, 1957
H.R. Rep. No. 950, 85th Cong., Ist Sess. (1957) ........... 437
S. Rep. No. 1045, 85th Cong., Ist Sess. (195
reprinted in 1957 U.S. Code Cong. rym
OU bnccerersernntencciiiehdeshienenenrsesiniinmenninetecsenn 437, 438
XXXViii TABLE OF AUTHORITIES
ACT OF JULY 3, 1958
S. Rep. No. 1720, 85th Cong., 2d Sess. (1958),
reprinted in 1958 U.S. Code Cong. & Admin.
News 2893 ........ sailtinabbiadaeeensdliaiaeustiitnnninanes 434, 435, 438
104 Cong. Rec. 11,900, 12,256—57 (1958) .........0006 435-36
Alaskan Submerged Lands: Hearings on H.R. 8054
Before the Senate Comm. on Interior and Insular
Affairs, 85th Cong., 2d Sess. (1958) .......:::0000+ 435, 436
H.R. 8054, 85th Cong., Ist Sess. § 1, 103 Cong.
Ras. 19,GID—13 CIDA) cnrcccececccecesesccsesessssececososocsoscese
ALASKA STATEHOOD ACT (1958)
S. Rep. No. 1929, 81st Cong., 2d Sess. (1950) ....... 464, 466.
Alaska Statehood: Hearings on S. 50 Before the
Senate Comm. on Interior and Insular Affairs,
83th Cong., 2d Sess. (1954) ............. 35, 36, 38, 438, 439
Alaska-Hawaii Statehood, Elective Governor, and
Commonwealth Status: Hearings on S. 49, S.
399, and S. 402 Before the Senate Comm. on In-
terior and Insular Affairs, 84th Cong., 1st Sess.
CBDGBD ccccescocsssnscssnsscsrencactolisiisiotslitzentnabisntitnanitiateeene
Hawaii-Alaska Statehood: Hearings on H.R. 2535,
H.R. 2536, and Related Bills Before the House
Comm. on Interior and Insular Affairs, 84th
Comg,, bat Seas. (9958) ..ccrcccccocccccsecsceresessesoces 35, 38, 439
Alaska Statehood: Hearings on S. 49 and S. 35 Be-
fore the Senate Comm. on Interior and Insular
Affairs, 85th Cong., Ist Sess. (1957) ......cc.ccccceceeeeeeees 439
Statehood for Alaska: Hearings on H.R. 50 and
Other Bills Before the Subcomm. on Territorial
and Insular Affairs of the House Comm. on
LEGISLATIVE MATERIALS ,
XXXxix
Interior and Insular Affairs, 85th Cong., Ist
OG adenine ns 439, 466-67
H.R. Rep. No. 624, 85th Cong., Ist Sess. (1957)
reprinted in 1958 U.S. Code Cong. & Admin
RP iilicetnierhsinthntdi Eta et 439, 465
104 Cong. Rec. 9410-1] a ~
ARCTIC WILDLIFE RANGE
S. y 899, 86th Cong., Ist Sess. (1959), reprinted in
rctic Wildlife Range—Alaska, Lee 476
Miscellaneous Fish and Wildlife Le
gislation: Hear-
ings Before the Subcomm. on Fisheries and ng
Wildlife Conservation of the House Comm. on
Merchant Marine and F. isheries, 86th Cong., Ist
scsceh spac, re ne aT 460
Biren tacmnbcerenieg at Agama
(U.S. Ex. 28) marvel aee hiatal oe 460
106 Cong. Rec. 2516 RELI 460-61
H.R. 7045, 86th Cong., 2d Sess. (1960 ae
House, U.S. Ex. al ineniaia dois ohare 461
Arctic Wildlife Range—Alaska: Hearings on S.
1899 Before the Merchant Marine and Fisheries
Subcomm. of the Senate Comm, on Interstate and
Foreign Commerce, 86th Cong., Ist & 2d Sess
pts. 1 & 11(1959-60) -.. 461, 476
OTHER
Provisional U.S. Charts Delimitin
1g Alaskan Terri-
torial Boundaries, Hearing Before the rte
Comm. on Commerce, 92d Cong., 2d Sess.
(1972) (Ak. EX. 85-23) oo... cccccccccssssseeeeessesss... 118, 165
—_ — a retinas gece —
xl TABLE OF AUTHORITIES
H.R. Conf. Rep. No. 942, 94th Cong., 2d Sess.,
reprinted in 1976 U.S. Code Cong. & Admin.
I
International Materials
LEAGUE OF NATIONS
j he Codification
League of Nations Conference for t )
of International Law [1930) (ed. Shabta
Rosenne 1975) (4 vols.) ...... cee 68, 186
Conference for the Codification of im fonal
Law, 2 Bases of Discussion J errit aters,
League of Nations Doc. C.74.M@.39 1929 V
(1929), reprinted in 2 Rosenne, supra, ana
j . Ex. 85-4 ( Bases of
yma stg _—~ . ae were 68-70, 71, 294-95
Acts of the Conference for the Codification of In-
’ no “pe Minutes of the Second Commit-
tee: Territorial Waters, League of Nations Doc.
C.351(b).M.145(b).1930.V (1930), reprinted in
4 Rosenne, supra, and excerpted in Ak. Ex. 85-1
" 68, 71, 72,
“Acts of Conference”) ........c.sscccseeeeeeeeneeesennnes , 71,
one ~~ 75, 76, 101, 102, 187-88, 293, 294, 296
UNITED NATIONS
G.A. Res. 174 (II), 2 U.N. GAOR (123rd plen.
mtg., Nov. 21, 1947) at 105, U.N. Doc. A/519
(BTID eccccnctesccccrssantenrsenesecosenssnssncnessotoent iacherenrmers
Yearbooks of the International Law Commission,
1951-1956, U.N. Docs. A/CN.4/SER.A/1951 &
1951/Add.1 through A/CN.4/SER.A/1956 & yan
I" cascardnomsiliadgnbsendennsenennes 186,
INTERNATIONAL MATERIALS xli
Report of the International Law Commission to the
General Assembly, 6 UN. GAOR Supp. (No. 9),
U.N. Doc. A/1858 (1951), reprinted in [1951] 2
Y.B. Int’) L. Comm’ n 123 o.o.cccccccccccccseeses. 122-23, 188
J.P.A. Frangois, Report on the Régime of the Terri-
torial Sea, U.N. Doc. A/CN.4/53 (1952) (in
French), [1952] 2 Y.B. Int’] L. Comm’n 25 ..... 189, 297
J.P.A. Frangois, Second Report on the Régime of
the Territorial Sea, U.N. Doc. A/CN.4/6] (1953)
(in French), [1953] 2 Y.B. Int’l L. Comm’n 57 . 189, 297
Report of the Committee of Experts on Technical
Questions Concerning the Territorial Sea,
Annex to Frangois, Addendum to the Second
Report on the Régime of the Territorial Sea
NE tata 189, 193, 200
J.P.A. Frangois, Addendum to the Second Report on
the Régime of the Territorial Sea, U.N. Doc.
A/CN.4/61/Add.1 (1953) (in French), [1953] 2
Y.B. Int’! L. Comm’n 75; also U.S. Ex. 85-228
+ Naina Sia 2 Ra Se (sie ee 189
J.P.A. Frangois, Third Report on the Régime of the
Territorial Sea, U.N. Doc. A/CN.4/77 (1954) (in
French), [1954] 2 Y.B. Int’] L. Comm’n 1 ......... 190, 297
Summary Records of the 260th Meeting, [1954] |
YB. Tot?) L. Comm'n 90 0.........ccccesceccoscescossesceess...... 297
Report of the International Law Commission to the
General Assembly, 9 UN. GAOR Supp. (No. 9),
U.N. Doc. A/2693 (1954), reprinted in [1954] 2
Y.B. Int?) L. Comm’ n 140 ooo. cccccccccccccscoscoeesseseoeees.. 297
J.P.A. Francois, Amendments Proposed on the Basis
of the Observations of Governments on the Draft
of Provisional Articles Adopted by the Commis-
xlii TABLE OF AUTHORITIES
sion at Its Sixth Session, U.N. Doc. A/CN.4/93
(1955) (in French), [1955] 2 Y.B. Int’ L.
Copeman $ ccccccscnssvsctinivsictsosrcscsescesccnsscessvessvecscvnensncete 190
Summary Records of the 317th Meeting, {1955} |
Y.B. Int’) L. Comm’ n 201 .......cccccceeeeeeeeeeeeeeneeee 191, 193
Summary Records of the 318th Meeting, [1955] |
Y.B. Int’) L. Comm’ n 207 ........:cccccceeeeereees 191, 192, 209
Summary Records of the 324th Meeting, {1955} |
Y.B. Int’) L. Comm’ n 247 ........cccccccsssrrrereessenseesens 192
Report of the International Law Commission to the
General Assembly, 10 U.N. GAOR Supp. (No.
9), U.N. Doc. A/2934 (1955), reprinted in
[1955] 2 Y.B. Int’) L. Comm’ n 19 ........cccceceeee 192, 193
Summary Records of the 365th and 366th Meetings,
[1956] 1 Y.B. Int’) L. Comm’ n 187 .........0ccccceseeeereees 194
Report of the International Law Commission to the
General Assembly, 11 GAOR Supp. (No. 9),
U.N. Doc. A/3159 (1956), reprinted in [1956] 2
Y.B. Int’l L. Comm'n 253 .... 124, 129-30, 194, 195, 298
U.N. Conference on the Law of the Sea, Official
Records. U.N. Docs. A/CONF.13/37-39 (1958)
(3 WOES.) .cccccccoscressccrescscecssroponnesooossonsoseoessnsesnessoossoosese 186
U.N. Doc. A/CONF.13/C.1/L.101 (1958), U.N.
Conference on the Law of the Sea, 3 Official
U.N. Doc. A/CONF.13/C.1/L.109 (1958), U.N.
Conference on the Law of the Sea, 3 Official
SSS RE eee = 195
U.N. Doc. A/CONF.13/C.1/L.112 (1958), U.N.
Conference on the Law of the Sea, 3 Official
IE TIE sna ceccnstninsneniadiaianinateaanesnmniauntniiia 299-300
PLEADINGS, BRIEFS, ARGUMENTS
xliii
U.N. Doc. A/CONF.13/C.1/L.116 (1958), U.N.
Conference on the Law of the 3 Offici
het RCN a TR. i sedeaashics , pa paaA 130
U.N. Conference on the Law of the Sea, Ist
Comm., 47th mtg., 3 Official Records 144 (1958) .... 196
U.N. Conference on the Law of the Sea, Ist
Comm., 52d mtg., 3 Official Records 160 (1958) ..... 300
U.N. Conference on the Law of the Sea, 19th
é len.
mtg., 2 Official Records 61 (1958) ........... ‘ ienaiis 196, 300
U.N. Office for Ocean Affairs and the Law
of the
Sea, The Law of the Sea: Baselines, an Examina-
tion of the Relevant Provisions of the United Na-
tions Convention on the Law of the Sea, U.N.
Sales No. E.88.V.5 (corrected printing 1989) ...... 17, 198
Pleadings, Briefs, Arguments
UNITED STATES V. CALIFORNIA
Memorandum of the United States in Respo
; nse to
Request of Special Master of June 29, 1949,
United States v. California (No. 11, Orig.)
(U.S. Ex. 85-202, Ak. Ex. 85-63) oooccccccsccoooos-...... 76-78
Brief for the United States in Answer to Califor-
nia’s Exceptions to the Report of the Speci
pecial
Master (June 1964) (Ak. Ex. 85-16), United
States v. California, 381 U.S. 139 EE 131-32
Brief in Support of Exceptions of the State of Cali-
fornia to the Report of the Special Master Dated
October 14, 1952, Pursuant to Court Order of
December 2, 1963, United States v. Cali
381 U.S. 139 (1965) _
xliv TABLE ©F AUTHORITIES PLEADINGS, BRIEFS, ARGUMENTS
xlv
UNITED STATES V. LOUISIANA Brief for the State of Mississippi in Support of Mo-
Brief for the United States in Support of Motion for Gon for (Before the Spe-
Judgment (Feb. 1957) (Ak. Ex. 85-6), United cial Master) (1983) (Ak. Ex. 85-31), United
States v. Louisiana, 363 U.S. 1 (1960) ..........:0000+ 111-12 5 v. Louisiana, 470 U.S. 93 (1985) oo... 79-80, 94
Brief for the United States in Support of Motion for neply Brief for the State of Mississippi (1984) |
Judgment on Amended Complaint (May 1958) nited States v. Louisiana (Alabama and Missis-
(Ak. Ex. 85-7), United States v. Louisiana, 363 ‘ppi Case), 470 U.S. 93 (1985) 55. 94
TT UY See re 91, Transcript of oral argument (1984) [mised
112, 114, 115, 137, 146, 149 Louisiana Siicesend knee hao er v
Reply Brief for the United States (Sept. 1958) (Ak. Case), 470 U.S. 93 (1985) (Ak. Ex. 85-2314) $5
Bu, 05-10, Ottis ieee a eae ss UCC (i i‘CiéC OO OC!
3 CROGED .-ocmperinsininnssiigaieaiaiainaaaiae 84, 112, 116, 137 UNITED STATES V. MAINE
Motion by the United States for Entry of a Supple- Supplemental Post Trial Brie: of the United §
mental Decree (No. 1), Proposed Supplemental (Before the Special Master) (1985) (Ak. mo.
Decree, and Memorandum in Support of Motion 333), United States v. Maine, 475 U.S. 89 ( 1986
(filed Nov. 23, 1965) (Ak. Ex. 85-167), United (Massachusetts Case) ........ rs 3
States v. Louisiana, 382 U.S. 288 (1965) .........0++ 155-57 ee , 135
Motion by the United States for Entry of a Supple- Xa =e
mental Decree as to the State of Louisiana (No. Application of the United Kingdom, 1l9SI LCS
2), Proposed Supplemental Decree, and Memo- Pleadings (1 Fisheries Case) (Sept. 24 1949)
randum in Support of the Motion of the United Memorial of the United Kingdom ett.
States and in Opposition to the Motion of the 1951 CJ, Pleadings ( (U.K. v. Nor.),
State of Louisiana (filed Jan. 3, 1968) (Ak. Ex. annex III (Jan = io Fisheries Case),
85-168), Louisiana Boundary Case, 394 U.S. 11 4a, __ a 217, 224
Counter-Memorial of Norway (U.K. v. Nor.), 195]
(IDG) ..ccsevesvinivecsiseechinstuisiaiaieesiaipiaisaasiiaiumaall 159, 160
LC.J. Pleadings (1 Fisheries Case) (July 31,
Brief for the United States (Aug. 1968) (Ak. Ex. 1950)...
25-34. US. te 05900) Ee a. 95
Louisiana, 394 U.S. 11 (1969) «0... 157, 160-61, 162 ics a Yaar (U.K. v. Nor.), 195]
Reply Brief for the United States (Sept. 1968) (Ak. 1950)... (2 Fisheries Case) (Nov. 28,
S an kidman!!! lke 96, 97
Th), A 162 yo me: of the United Kingdom, 1951 1.C.J
xvi TABLE OF AUTHORITIES
Other Materials
Hans W. Baade, Proving Foreign and International
Law in Domestic Tribunals, 18 Va. J. Int'l L.
619 (1978) .ncnccccececesesssserererserensnsensnensnsnnsnsnenenenenneneness 273
Max W. Ball, Petroleum Withdrawals and Restora-
tions Affecting the Public Domain (U.S. Geolog-
ical Survey Bull. 623, 1916) ....-.------ev-eseerreeeeeeee 412, 425
David W. Barnes, Statistics as Proof (1983) ....2.---ec0eeeee 268
Ernest C. Baynard, Public Land Law and Proce-
dure § 1.1 (1986) ...-.eccccseenesnesnsnnennenennennsnnensnnsnnsnnenes 408
P.B. Beazley, Maritime Limits and Baselines: A
Guide to Their Delineation (The Hydrographic
Society, Spec. Pub. No. 2, 2d ed. rev. 1978)
(U.S. Ex. 85-229) ......esesecesesneneenenensnnnnenenens 209, 212, 214
Frederick W. Beechey, Narrative of the Voyage of
the Blossom (London 1831) .....-.----esrenersenennennennes 363
Black's Law Dictionary
6th Od. 1990 .....cccceccersercesscersensensensnesneesennnnnennaneennanens 321
Bd Od. 1933 ..ceccecensencercenssssnrsreenernsnsenssnsenssnssossnssnseness 371
Vd Od. 1910 ...ccececcessersecesseorerseneneenssnesesnnensennenssnnennenees 371
Ex. 85-61, U.S. Ex. 85-223) ..--cccevsenceeneernnrnennenennnennees 71,
73, 75, 79, 80, 88, 96, 116, 127, 188
S. Whittemore Boggs, Delimitation of Seaward
Areas under National Jurisdiction, 45 Am. J.
Int’l L. 240 (1951) (Ak. Ex. 85-96, U.S. Ex. 85-
DIA) cececuseseenssssesssssnsreresssnensnsensnenensnsenensneneness 88, 127, 128
OTHER MATERIALS
Susan B. Boyd, The Legal Status of the Arctic Sea
Can. YB. Int'l L. rye a Proposal, 22
E.D. Brown, Sea-Bed Energy and Mineral
snnaroes and the Lane ef the See: The Areas
ithin National Jurisdiction (1984)
John L. Burdick et al., Cold Regions: Descriptions
and Geotechnical Aspects, in Geotechnical Engi-
my hom ye 1 (Orlando B. Anders-
& Duwayne M. Anderson eds. 1978) ................ 271
Jonathan |. Charney, The Offshore Jurisdic.
’ tion
the States of the Aone tyr +d
of Canada—A Comparison, 12 Ocean Dev. &
Int’! L. 301 (1983), also in The Law of the Sea
and Ocean Industry: New Opportunities and
Restraints 426 (Douglas M. Johnston & Norman
G. Letalik eds., 1984) .
“an i 171
: Colombos, nternational Law
Sea (6th rev. ed. 1967) es 273
B. acter ae
Beyer ed., 28th ed. 1987) ........ babs Nascraadon tal 180
l —- Davis & Richard J. Pierce, Jr.,
Pp ny Law Treatise (3d ed. 1994) |... 335
Denis P. Duffey, The Northwest Ordinance
Constitutional Document, 95 4
929 (1995) ooo cccecoecsssoee imc 384
Euclid, The Thirteen Books of Euclid's Elements
(Thomas L. Heath trans., 2d ed., Dover reprint
Ri a el Maca 213
The Federalist No. 81 (Alexander ete o.. 520
Sir Gerald Fitzmaurice, The Territorial Sea and the
Contiguous Zone, 8 Int’! and Comp. L.Q. 73
(1959) (Ak. Ex. 85-406) ........cccccccecseereeneeeneneenennenanees 197
Stewart French & John C. Reed, Boundaries and
Status of Naval Petroleum Reserve No. 4 (Arctic
Inst. of N. Am., July 1971 & rev. & expanded
Sept. 1971) (Ak. Exs. 102, 103) ..........-c0000 349-50, 380
Thomas W. Fulton, The Sovereignty of the Sea
| |) a 290, 291
1 Green H. Hackworth, Digest of International Law
(1940) (Ak. Bx. 8S-SZ) ..20...000-.ccccescccccreevsreserceersonses 67-68
William E. Hall, /nternational Law (4th ed. 1895)
CRS Ss ae 65, 67
Robert D. Hodgson, /slands: Normal and Special
Circumstances, in Law of the Sea: The Emerging
Regime of the Oceans 137 (John K. Gamble &
Giulio Pontecorvo eds. 1974) .........cccccccseeeeereeenennens 272
Robert D. Hodgson & Lewis M. Alexander,
Towards an Objective Analysis of Special Cir-
cumstances (Law of the Sea Inst., Univ. of R.L.,
Occasional Paper No. 13, 1972) (Ak. Exs. 85-
401, -403, U.S. Ex. 85-222) ............... 206, 209, 212, 214
R.H. Kennedy, A Brief Geographical and Hydro-
graphical Study of Straits Which Constitute
Routes for International Traffic, U.N. Doc.
A/CONF.13/6 & Add. 1, in U.N. Conference on
the Law of the Sea, 1 Official Records 114, U.N.
Doc. A/CONF.13/37 (1958) .........cc.ccccccssoressereeeeesesees 70
OTHER MATERIALS shixe
Ernest de K. Leffingwell, The Canning River
Region, Northern Alaska (U.S. Geological Sur-
Professional Paper 109, 1919) (U.S. Ex.
prs Se 241, 363, 429
Myres S. McDougal & William T. Burke, The
Public Order of the Oceans (1962) a a ee 303
Vincent L. McKusick, Discretionary Gatekee :
The Supreme Court's Management of lis Orit
nal Jurisdiction Docket Since 1961, 45 Me. L.
Rev. 185 (1993), reprinted in 138 Proc. Am
Phil. Soc’y 195 (1994)... Sie 7
i be Ex. 84A-404) oo. 235, 236, 237, 238, 258
‘A. Marmer, Tidal Datum Planes (U.S. Dep’t of
Commerce, Special Pub. No. aT 235
cen, att et ee ROLES KEEL TO 274
| John B. Moore, Digest of International
(1906) SR em halon iwdngen seubeusecte 70, 102
the Sea (1.A. Shearer ed. 1982) .... 182, 204, 273-74, 297
Donald J. Orth, Dictionary of Alaska Place Names
(U.S. Geological Survey Professional Paper 567,
rev. 1971) (Ak. Ex. 75) ..........cccsscssososss...... 361, 362, 363
l TABLE OF AUTHORITIES
R.S. Patton, The Three-Mile Limit [1930] (Ak. Ex.
85-56, U.S. Ex. 85-200) ......ccssescersersseesenceesnerennenenees 187
G. Etzel Pearcy, Measurement of the U.S. Territo-
rial Sea, Dep’t St. Bull., June 29, 1959, at 963
(Ak. Ex. 85-138), reprinted as Dep't of State
Pub. 6879, General Foreign Policy Series 139
(U.S. Ex, 85-231) ...ccccccssrcerersereenceennnnnnenensnnsnenes 136, 164
Donat Pharand, The Law of the Sea of the Arctic
(1973) ....c.ecsrcsssesscsssersensessorersnsenessensnorsnsesenensensenens 273-74
Richard R. Powell, The Law of Real Property (rev.
Od. 19BB) ......ccccsccseesssscscssscessvvesensensenssessossrsrsnnsesenss 370
Malcolm J. Proudfoot, Measurement of Geographic
Area (U.S. Dep’t of Commerce, Bureau of the
Census, 1946) (excerpted in Ak. Ex. 85-77 and
U.S. Ex. 85-706) ......ccccsssccssscssssrsersseeessesesssensonsnees 80-83
Reginald W. Ragland, A History of the Naval Petro-
leum Reserves and of the Development of the
Present National Policy Respecting Them
(1944) .......cceccesceorersessserenseonsssenssnsenseossossossnseenses 412, 428
Peter Raven-Hansen, Regulatory Estoppel: When
Agencies Break Their Own “Laws,” 64 Tex. ke
Rev. 1 (1985) .......:ccscccsersnerssesessensensensenennessnsnnsnnnensenes 335
John C. Reed & Stewart French, Boundaries, and
Status of Land and Resources, of Naval Petro-
leum Reserve No. 4 (Arctic Inst. of N. Am., rev
& expanded Mar. 1975) (Ak. Ex. 105) .......e-seeesees 354
Restatement of the Foreign Relations Law of the
United States (Tent. Draft No. 1, Apr. 26, 1957) ...... 125
Restatement of the Foreign Relations Law of the
United States (Tent. Draft No. 2, May 8, 1958) ........ 125
OTHER MATERIALS l
1
Restatement (Third) of the Foreign i
Relations
of the United States (1986) ................. seat 186
— The Concept of a Bay as In-
aters, 13 Surveying and Mapping 432
(1953) (Ak. Exs. 85-43, EGY ae 187
US. De Pm ge ‘
S. *to
Ws D Pub. 10-1, 1962-64)
22, 53, 59, 60, 84, 85. 88.93
: , , SJ : + 94, 99, 100,
101, 102, 103, 104, 108, 111, 115, 128. 134
142, 147, 156, 173, 187, 188, 231, 232, 234
235, 236, 237, 258. 259 261. >
’ , ’ > , 62,
370, 376-77, 381, 414, 486 site
~— Ney ¥~ sari yaa on Intervention
ourts, Agencies Arbitrat
Harv. L. Rev. 721 (1968) a
~~ W. Skadel, The Coastal Boundaries of
aval Petroleum Reserve No. 4 (University of
Alaska Sea Grant Program, Alaska
Sea
Rep. No. 73-12, 1974) (Ak. Ex. 10) a
Resources of Northwestern Alaska
(U.S.
Geological Survey Bull. 815, 1930)
Robert L. Swanson, Variability o
Tidal Datums
and Accuracy in Det rey!
‘obert W. Swensen, Legal Aspects of Mineral Re-
sources Exploitation, in Paul W. Gates, Hist
sovessvevevessussesessnnosooesssoososceseneosusvedsbvecesersssssseees 16,
lii TABLE OF AUTHORITIES
Clive Symmons, The Maritime Zones of Islands in
International Law (1979) ....-++-s-sssssenenenereenenene® 273, 274
Donald M. Taylor, Man-made Permafrost Islands
for Offshore Drill Sites? Ocean Industry, Nov.
1972, Bt 42 .accececsscsssrersersenenennensnsessncssensnssnenssnenees® 272-73
Bo J. Theutenberg, The Evolution of the Law of the
Sea: A Study of Resources and Strategy with
Special Regard to the Polar Regions (1984) .......-+++: 274
James E. Thompson, Geometry for the Practical
Man (M. Peters ed., 3d ed. 1962) ..eccsssvsereerereeesreenenes 213
Kathleen L. Walz, The United States Supreme
Court & Article VII of the 1958 Convention on
the Territorial Sea & Contiguous Zone, \1
USF. L. Rev. 1 (1976) ...-.:-ssserssersesnerennnnnnsnenenes 212, 213
Gayl S. Westerman, The Juridical Bay (1987) ...----. 183, 199
Webster's Collegiate Dictionary (3d ed. 1916) ...----++000 372
Webster's Ninth New Collegiate Dictionary (1987) .....-- 321
Charles F. Wheatley, Jr., Study of Withdrawals and
Reservations of Public Domain Lands (U.S. Pub-
lic Land Law Review Comm’n, | Background
Studies, 1969 & photo. reprint) .....-+-+-----esesre0" 395, 473
Charles A. Wright & Arthu: H. Miller, Federal
Practice and Procedure, Civil §§ 1909, 1917
(1972) .ccessosssvssneenecssensnsnnennssnsssnennccnscnnsenssesees 525-26, 548
Charles A. Wright, Arthur H. Miller, & Edward H.
Cooper, Federal Practice and Procedure, Juris-
diction § 4416 (1981) .....s+:+-ssssesrsrsenennenensenensnnensnserens 553
IN THE
Supreme Court of the United States
OCTOBER TERM, 1995
No. 84, Original
UNITED STATES OF AMERICA
Plaintiff,
Vv.
STATE OF ALASKA
REPORT OF THE SPECIAL MASTER
Drew S. Days, III, Solicitor
idic«h United States De-
Bruce Bothelo
dant Attorney General of Alaska, for defen-
Louis
is F. Claiborne, Deputy Solicitor
Assistant Solieg General and Special
Gueaien Ge General; Michael W. Reed and
Cesrics W. Findlay, Il, Environment and Natural Resources
G US. Department of Justice for - T
Thomas Koester, Assistant Attore —
D.C., for Amoco Production Co. et al. as amici curiae
opposing the motion for leave to intervene.
I
INTRODUCTION
A. Nature of the controversy
These proceedings concern the rights to lands underlying
tidal waters off the Arctic coast of Alaska. The objective is
to identify the lands belonging, respectively, to the United
States and the State of Alaska. Important oil and gas re-
serves have been discovered nearby, and the controversy
arose from the desire of both sovereigns to grant leases for
exploration of these offshore areas.
The rights of the United States and Alaska depend on
interpretation of the Submerged Lands Act, 43 U.S.C.
§§ 1301-1315 (1988), and related doctrine. In general, the
Submerged Lands Act grants to the states the lands under
tidal waters out to three miles from their coastlines, and the
United States retains the rights over resources of the conti-
nental shelf beyond the three-mile limit.
Determining the rights of the parties involves two kinds
of issues. One is the location of the coastline from which the
three-mile belt is to be measured. The other is what lands
under tidal waters, if any, are part of federal reservations
along the Arctic coast and are excepted from the operation of
the Submerged Lands Act.
B. Initial proceedings
On May 30, 1979, the United States moved the Court for
leave to file an original bill of complaint, setting out a dis-
pute over the right to offer lands in the Beaufort Sea for min-
eral leasing. Alaska expressly acquiesced. Memorandum of
Nonopposition to Motion for Leave to File Complaint (June
8, 1979). The Court granted the motion on June 18, 1979.
442 U.S. 937.
The complaint stated that the submerged lands in contro-
4 1. INTRODUCTION
versy, in the view of the United States, were located in the
Beaufort Sea “more than three geographical miles seaward
from the ordinary low-water mark and from the outer limit
of inland waters along the coast of Alaska.” Complaint,
4 1V. Alaska submitted its Answer to the Complaint on Sep-
tember 12, 1979. At the same time, the State sought leave to
file a counterclaim alleging that the United States also
claimed rights along the north coast of Alaska in submerged
lands under certain inland waters. Counterclaim, 4 IV.
In particular the counterclaim sought a decree quieting
Alaska’s title to the offshore submerged lands lying inside
the barrier islands north of the Arctic National Wildlife
Range and to the submerged lands underlying the inland
waters of Harrison Bay, Smith Bay and Peard Bay. The
Wildlife Range (now called the Arctic National Wildlife
Refuge) faces on the eastern part of the Arctic coast, be-
tween approximately 141° and 146° west longitude. The
three named bays are in or adjacent to the National Petro-
leum Reserve—Alaska, which lies on the west side of the
Arctic coast between about 151° and 162° west longitude.
By comparison, the dispute that gave rise to the United
States’ complamt was focused primarily on the coast bo-
tween 146° and 150° west fongitude, around Prodhoe Bay.
See figure 1.1.
The United States, while denying the clams advanced by
Alaska, agreed that teave onght to be granted to the State to
file wts counterclaum See Momorandum of the United States
m Response to Alaska’s Motion for Leave w File Counter-
claim and Answer to Counterclaim (Dec. 14, 1979).
The Court appointed the Special Master on February 19,
1980, 444 U.S. 1065, and a referred the Motion for Leave to
File Counterclaim to the Master on March 3, 1980, 445 US.
914
C. ALASKA'S COUNTERCLAIM 5
C. Alaska’s counterclaim
At the urging of the parties and for the reasons elaborated
below, the Master determined to consider the issues tendered
by the counterclaim—subject, of course, to this Court's ulti-
mate ruling.
In the complaint the United States sought a decree declar-
ing its rights as against Alaska “in the subsoil and seabed
underlying the waters adjacent to Alaska in the area of the
Beaufort Sea” and enjoining interference with those rights.
Complaint at 6. The rights of the United States in the Beau-
fort Sea depend on the issues raised by the counterclaim as
well as those raised by the complaint. Both the Arctic Na-
tional Wildlife Refuge and the National Petroleum Reserve—
Alaska border the Beaufort Sea, which extends along the
Arctic coast eastward from Point Barrow.' As to the Petro-
leum Reserve, the State had already instituted litigation in
the district court. Alaska v. United States, Civ. No. J75-13
(D. Alaska; renumbered No. A78-069; partial consent judg-
ment entered Dec. 7, 1984; dismissed Nov. 26, 1986). As to
the Wildlife Refuge, the State had previously informed the
Department of the Interior that it intended to challenge the
federal position. Memorandum in Support of Motion for
Leave to File Counterclaim, at 15 n.1.
The Court’s original jurisdiction to entertain the counter-
claim, like the complaint, is conferred by Article III, section
2, clause 2 of the Constitution and 28 U.S.C. § 1251(b)(2)
(1988). Consent to suit is to be found in 28 U.S.C. § 2409a
(1988). California v. Arizona, 440 U.S. 59 (1979); Califor-
nia ex rel. State Lands Comm'n v. United States, 457 U.S.
273 (1982). Although the federal district courts have con-
current jurisdiction, the Court has repeatedly indicated that
' The Arctic coastline of the Petroleum Reserve also includes a por-
tion facing the Chukchi Sea, from Point Barrow west to Icy Cape.
6 lL. INTRODUCTION
coastal boundary disputes between the United States and a
state should be resolved in original suits here. eres
rel. State Lands Comm'n v. United States, 457 U.S. at =
n.6; United States v. Alaska, 422 U.S. 184, 186 n.2 (1975);
United States v. Louisiana, 363 U.S. 1, 85 n.143 =
Accordingly, it seems clear that the issues raised by _
counterclaim should, sooner or later, be brought before
"Se avoid piecemeal litigation, the parties and the Special
Master have deemed it proper to treat them now. It is true
that the issues raised by the counterclaim could have been
considered separately and that the Court has been willing to
entertain the same case again and again until all issues at
finally resolved. E.g., United States v. Louisiana, ee ,
699 (1950); id., 363 U.S. 1 (1960); id, 382 U.S. 288 (1 pin
id , 394 U.S. 11 (1969); id, 404 U.S. 388 (1971), id, ~
U.S. 17 (1972); id. 420 U.S. 529 (1975); id. 422 yo |
(1975); id., 446 U.S. 253 (1980); id., 452 U.S. 726 (1981);
id. , 456 U.S. 865 (1982). But the burden of these cases on a
crowded docket makes it desirable, when possible, to com-
i all maritime boundary controversies pertaining to the
post area in a single proceeding. This entails granting
Alaska leave to file its counterclaim. By
The Master further agreed, at the parties urging, that he
might proceed to hear the counterclaim without first subaat
ting an interim report on the motion for leave to file. =
the time and conditions for the filing of additional plead.
ings,” to “direct subsequent proceedings, and to “submi
well have been raised by an amended complaint; and they
did not require the exercise of the Court’s original jurisdic-
D. THE JOINT STATEMENTS OF QUESTIONS PRESENTED 7
tion beyond familiar bounds. The Court has consistently
agreed to hear federal-state disputes over submerged lands
and boundaries.” And the Court has stated that its “object in
original cases is to have the parties, as promptly as possible,
reach and argue the merits of the controversy presented.”
Ohio v. Kentucky, 410 U.S. 641, 644 (1973).
To that end, the parties have submitted and the present
Report recommends resolution of all the issues that must be
answered to fix the lines delimiting Alaska’s submerged
lands underlying tidal waters for the whole of its Arctic coast
from the Canadian border to Icy Cape. Accordingly, I rec-
ommend that Alaska’s Motion for Leave to File Counter-
claim be granted nunc pro tunc.
D. The joint statements of questions presented
To identify the disputed issues with particularity, the par-
ties submitted to the Special Master in May 1980 a Joint
Statement of Questions Presented and Contentions of the
Parties.’ Some ten issues were identified. After a first evi-
dentiary hearing in July 1980, and partly as a result of expert
testimony there given, it became necessary to augment the
Statement of Questions Presented. A Supplement to the
Joint Statement, adding three questions, was filed in Septem-
ber 1980. Two more issues were added by a Second Supple-
ment to the Joint Statement, filed in July 1984.
The entire list of fifteen questions, in their original order
? See Vincent L. McKusick, Discretionary Gatekeeping’ The Supreme
Court's Management of Its Original Jurisdiction Docket Since 1961, 45
Me. L. Rev. 185, 200, 211 (1993), reprinted in 138 Proc. Am. Phil. Soc’y
195, 209, 219 (1994),
* The original Joint Statement and the two Supplements thereto are
readily identifiable in the Special Master’s record as the only printed
documents filed initially with him.
Xx Il. INTRODUCTION
but without the statements of contentions, is given in Appen-
dix A. The Git quastion, wheten Alene ees oaeee
leave to file its counterclaim, has already been treated Ove.
The body of this report deals with the remaining questions,
grouping them according to subject matter.
E. The motion for leave to intervene
On May 12, 1981, the Inupiat Community of the Arctic
Slope and the Ukpeagvik Inupiat Corporation moved for
leave to intervene in the case, claiming rights over areas in
dispute between the United States and Alaska. On June 8,
the Court referred the motion to the Special Master. 452
U.S. 913. Briefs opposing the motion were filed by the orig-
inal parties and, as amici curiae, by Amoco Production
Company et al., the mineral lessees of a portion of the con-
tested area.4 The movants filed a reply brief. The Master
heard oral argument on the intervention motion on March
26, 1982.5 as
On the Inupiats’ theory of the case, their rights were to
areas beyond the three-mile limit. Several of the issues in
the Joint Statement and Supplement affected the location of
the three-mile limit, since they involved determining the
coastline from which the three miles are measured. On the
issues as framed by the original parties, the Inupiats were
‘ To permit mineral leasing during this litigation, the parties entered
an interim agreement on October 26, 1979, as authorized by the Outer
Continental Shelf Lands Act, § 7, 43 U.S.C. § 1336 (1988), and Alaska
Stat. Ann. § 38.05.137 (1989). See Joint Statement 2 & App. |. A joint
federal-state lease sale, covering the area between 146° and 150° west
longitude, was held in December 1979. | am informed that oil company
artnet tenet nit edn now in escrow.
5 Unlike most of the transcript, the volume for March 26, 1982, is not
numbered.
E. THE MOTION FOR LEAVE TO INTERVENE 9
aligned with the United States in seeking to maximize the
area beyond the three-mile limit. Ultimately, the Inupiats’
interests were adverse to the United States, and they were
pursuing their claim in the federal district court. Inupiat
Community v. United States, Civil No. A81-019 (D. Alaska,
filed Jan. 19, 1981).
The Master’s report on the intervention motion (Appen-
dix B) was submitted to the Court on January 10, 1984. For
the reasons there stated, the report recommended that the
motion to intervene be granted, subject to several restric-
tions. In general, the intervention was to be limited to issues
not yet submitted; the intervenors were to be restricted to
supporting the position of the United States; and their parti-
cipation was to continue so long as they could credibly claim
an interest in the disputed areas. Report of Jan. 10, 1984, at
40-42. An order implementing these recommendations was
issued on the same day (Appendix C).
At the suggestion of the Master, supported by all parties,
the Court did not immediately review the report on interven-
tion, merely ordering it filed. 465 U.S. 1018 (Feb. 21,
1984).
A final decision against the intervenors, in their
suit against the United States, was reached in 1985. Inupiat
Community v. United States, 548 F. Supp. 182 (D. Alaska
1982) (granting summary judgment for defendants), aff'd,
746 F.2d 570 (9th Cir. 1984), cert. denied, 474 U.S. 820
(1985). By a letter of October 23, 1985, the intervenors in-
formed the Special Master that they no longer appeared to
satisfy the conditions for continued participation in the pres-
ent action. Accordingly, the Master issued an order on June
3, 1986 (Appendix D), dismissing the intervenors from fur-
ther participation, but not from their obligation to bear their
due share of costs, as ultimately determined by the Court, for
the period during which they participated.
10 |. INTRODUCTION
F. Additional proceedings before the Special Master
Two of the questions presented in the Joint Statement and
supplements did not require the taking of evidence. One was
the question of Alaska’s counterclaim (question 1). The
other was subsequently settled by a joint survey and a stip-
ulation (question 14).
By agreement, the other questions were divided into three
groups for the purposes of trial. It was decided first to hear
evidence and argument on the questions pertaining to the
National Petroleum Reserve—Alaska (questions 7 and 8 and,
as later added, question 11), the Arctic National Wildlife
Refuge (questions 9 and 10), and the effect on the coastline
of a pier extension at Prudhoe Bay (question 6). The evi-
dence was heard on July 28 and 29, 1980.
Post-trial briefs on these issues were filed in November
1980 and February 1981. On March 24, 1981, however, the
Court decided Montana v. United States, 450 U.S. 544,
which Alaska suggested significantly affected the claim to
tidal water bottoms within the Petroleum Reserve and the
Wildlife Refuge. After a lapse of time due to the interven- .
tion proceedings, the United States and Alaska submitted a
joint motion respecting the issues of these areas on October
31, 1983.
The Master granted the motion by an order of January 4,
1984, noting that the subject matter had no implications for
the Inupiat petitioners for intervention. As will be explained
more fully in section VIII, the order relieved the State of a
concession it had made and invited supplemental briefs on
the relevance of the Montana case. At the same time, a
newly discovered map was permitted to be introduced in evi-
dence. The supplemental briefs and reply briefs were sub-
mitted in January and February 1984. The Master heard oral
argument on the same issues, together with the issue of the
pier extension, on March 4, 1985. Transcript [hereafter
“Tr.”}, vol. 17. A second set of supplemental briefs was
F. ADDITIONAL PROCEEDINGS BEFORE THE SPECIAL MASTER 1]
prompted by the Court’s decision in Utah Division
Lands v. United States, 482 U.S. 193 (1987), and vai ar
were received in September and October 1987.
. The second set of evidentiary hearings was confined to a
single issue from the Joint Statement, the status as an island
ofa formation known as Dinkum Sands (question 5). These
hearings, requiring nearly three weeks, took place in July
and August 1984, with the participation of the intervenors as
well as the original parties. Briefs were submitted in March
and May 1985. The Master heard oral argument on the Din-
oe a in June 1986. Tr., vol. 24.
inaily, in May and June 1985, the last group of iss
was reached for hearing: the effect of offshore islands on os
legal coastline (questions 2, 3, 4, 12, and 13) and the status
of southern Harrison Bay as a juridical bay (question 15)
Briefing followed in the fall of 1985 and spring of 1986, and
final oral arguments were held in November 1986. Tr., vol.
25. The intervenors did not participate in these proceedings
Besides the formal hearings, the Master has made a site
Visit to the Prudhoe Bay area with counsel for Alaska and the
United States. The visit took place on July 31 and August |
1980, just after the first evidentiary hearings, and included
observations of Dinkum Sands (question 5) and the pier ex-
wey Prudhoe Bay (question 6).
s the several parts of the rt were com
the Master has circulated nent the cematae
parties, under an order for confidentiality, for technical
review and comment.® The circulation process, which began
; ® Rule 53(e5) of the Federal Rules of Civil Procedure provides:
Before filing the master’s report a master may submit a draft thereof to
counsel for all parties for the purpose of receiving their suggestions.”
oe Rule 17.2 states that the Federal Rules, “when their appli-
1S appropriate, may be tak i i igi
peering wee y en as a guide to procedure in an original
For precedents for circulating a draft report to counsel in original
12 I. INTRODUCTION
in 1989, has proved a valuable aid to accuracy. As now sub-
mitted, the Report incorporates both technical corrections
and revisions reflecting the Master’s own further review.
actions, see Texas v New Mexico, Report of Special Master Caries 1]
Mocyers, at 4 (1936), exceptions sustained in part and overraed im port,
432 US. 124 (1937), Arizona v. California, Report of Special Master
Semon H. Réfkiad (7960), at 3, qnprowed in part and disapprowed in pari,
373 US. 346 (7953).
PART ONE
ALASKA’S COASTLINE
15
II
THE LEGAL BACKGROUND
All the issues concerning the location of Alaska’s coast-
line share the same legal background, outlined here.
It was long the received doctrine that new states, upon
their admission to the Union, in general become vested with
title to the beds of navigable waters within state boundaries.
Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845); Shively v.
Bowlby, 152 U.S. 1, 26-31 (1894). In 1947, the Court quali-
fied this rule to distinguish between inland navigable waters,
such as lakes and rivers, and the marginal sea traditionally
claimed as a three-mile belt along the Nation’s coasts. The
Court explained that the precedents had involved only inland
navigable waters. For the marginal sea, it held that federal
rights were paramount:
[W]e are not persuaded to transplant the Pollard rule of
ownership as an incident of state sovereignty in relation
to inland waters out into the soil beneath the ocean, so
much more a matter of national concern. If this rationale
of the Pollard case is a valid basis for a conclusion that
paramount rights run to the states in inland waters to the
shoreward of the low water mark, the same rationale leads
to the conclusion that national interests, responsibilities,
and therefore national rights are paramount in waters
lying to the seaward in the three-mile belt.
United States v. California, 332 U.S. 19, 36 (1947). With
the Court’s decision in California, the right to issue oil and
gas leases in coastal waters came to rest with the states if the
waters qualified as inland, and otherwise with the Federal
Government. The Court recognized, however, that there
might be “many complexities and difficulties” in locating the
exact line between inland waters, including harbors, bays,
and rivers, and the marginal sea. /d. at 26.
The distinction between inland waters and the marginal
16 ll. THE LEGAL BACKGROUND
sea was traditionally a distinction of international law. Un-
der that tradition, the sea is divided into inland waters, the
marginal or territorial sea, and the high seas. See United
States v. Louisiana (Alabama and Mississippi Boundary
Case), 470 U.S. 93, 98-99 (1985); United States v. Louisi-
ana (Louisiana Boundary Case), 394 U.S. 11, 22-23 (1969);
1 Aaron L. Shalowitz, Shore and Sea Boundaries 22-24
(U.S. Dep’t of Commerce Pub. 10-1, 1962). With the 1947
California decision, the international distinction was seem-
ingly made applicable to a domestic controversy between the
Federal Government and a state.
Congress disagreed with the 1947 California decision. In
May 1953 it enacted the Submerged Lands Act, ch. 65, 67
Stat. 29 (codified as amended at 43 U.S.C. §§ 130!-1315
(1988)), which gave the states all the United States’ right,
title, and interest in “lands beneath navigable waters within
the boundaries of the respective States.” § 3(a)-(b)(1), 43
U.S.C. § 1311(a)}{b)(1). These included lands out to a line
three miles seaward from the coastline, § 2(a)(2), 43 U.S.C.
§ 1301(a)(2), and for most states were not to extend beyond —
this three-mile belt, § 2(b), 43 U.S.C. § 1301(b). The Act
defined the term “coast line” to mean “the line of ordinary
low water along that portion of the coast which is in direct
contact with the open sea and the line marking the seaward
limit of inland waters.” § 2(c), 43 U.S.C. § 1301(c). The
phrase “inland waters” was still left undefined.'
The next major development was an international one. In
April 1958, the first United Nations Conference on the Law
of the Sea adopted a convention that did attempt to define
| As to lands of the continental shelf lying beyond those granted to
the states, Congress confirmed federal jurisdiction and control. Sub-
merged Lands Act § 9, 43 U.S.C. § 1302; Outer Continental Shelf Lands
Act, ch. 345, .§ 2(a), 3, 67 Stat. 462 (Aug. 7, 1953) (codified as amended
at 43 U.S.C. §§ 1331(a), 1332 (1988)).
ll. THE LEGAL BACKGROUND 17
inland waters. Convention on the Territorial Sea and the
Contiguous Zone, done Apr. 29, 1958, 15 U.S.T. 1606, 516
U.N.T.S. 205. This Convention, which the United States
signed in 1958, was approved by the Senate in 1960 and rati-
fied by the President in 1961. The Convention took effect in
1964 upon approval by the requisite number of nations.
In 1965, the Court handed down its second decision in the
California litigation, this time on the meaning of “inland
waters” in the Submerged Lands Act. United States v. Cali-
fornia, 381 U.S. 139 (1965). The Court found first that Con-
gress had meant io leave the definition of “inland waters” to
the courts. 381 US. at 150-60. It noted that the 1947 opin-
ion clearly indicated that ‘inland waters’ was to have an in-
pg eye and it found that, unlike the situation in
, the Convention now provided “a settled international
rule defining inland waters.” 381 U.S. at 162, 163. The
Court concluded that the meaning of “inland waters” in the
Submerged Lands Act should conform to the Convention:
It is our opinion that we best fill our responsibili of giv-
ing content to the words which Congress on la
adopting the best and most workable definitions available.
? The relevant provisions of the 1958 Convention have in general
Haan carried forward, with some additions, into a later treaty United Na-
Convention on the Law of the Sea, done Dec. 10, 1982, in The Law
of the Sea, U.N. Sales No. E.83.V.5 (1983). See also U.N. Office for
Ocean Affairs and the Law of the Sea, The Law of the Sea: Baselines, an
sow an he tae et Prentcions of tha Untied Nations Comen
a .N. Sales No. E.88.V.5 (corrected printing
The United States did not sign the Law of the Sea Convention in 1982
a opposed the provisions, not relevant here, on deep seabed min-
» &.. agreement changing these provisions was reached in July 1994,
convention and agreement have now been transmitted to the Sen-
ate for advice and consent. S. Treaty
(Oct. 7, 1994). Doc. No. 39, 103d Cong., 2d Sess.
18 ll. THE LEGAL BACKGROUND
The Convention on the Territorial Sea and the Contiguous
Zone, agproved by the Senate and ratified by the Presi-
dent, provides such definitions. We adopt them for pur-
poses of the Submerged Lands Act. This establishes a
single coastline for both the administration of the Sub-
merged Lands Act and the conduct of our future interna-
tional relations (barring an :..: <pected change in the rules
established by the Convention). Furthermore the compre-
hensiveness of the Convention provides answers to many
of the lesser problems related to coastlines which, absent
the Convention, would be most troublesome.
Id. at 165 (footnotes omitted).
Alaska was admitted to the Union in 1959, after passage
of the Submerged Lands Act and negotiation of the Conven-
tion, but before the United States ratified the Convention and
before the second California decision. The Alaska State-
hood Act, approved on July 7, 1958, provided:
The Submerged Lands Act of 1953 . . . shall be applicable
to the State of Alaska and the said State shall have the
same rights as do existing States thereunder.
Alaska Statehood Act, Pub. L. No. 85-508, § 6(m), 72 Stat.
339, 343 (1958), reprinted as amended in 48 U.S.C. note
preceding § 21 (1988). Admission followed by presidential
proclamation on January 3, 1959. Proclamation No. 3269, 3
C.F.R. 4 (1959-1963), reprinted in 48 U.S.C. note preceding
§ 21, at 15 (1988).
\ Late in 1988 President Reagan issued a proclamation extending the
territorial sea to twelve miles. Proclamation No. 5928, 3 C.F.R. 547
(1988), reprinted in 43 U.S.C. § 1331 note (1988). The change appears
not to affect the federal-state rights at issue in this case, for the Sub-
merged Lands Act grant is not framed in terms of the territorial sea, and
or otherwise alters existing Federal or State law or any jurisdiction,
rights, legal interests, or obligations derived therefrom...” /d
19
Il
THE EFFECT OF ISLANDS ON THE COASTLINE
When a new state enters the Union, it ordinarily takes ti
. . title
to lands under its inland navigable waters. "yemea Vv
Hagan, 44 US. (3 How.) 212 (1845). In addition, Congress
port ema eadencenge, «-deened > yon-< of inland navi-
: ee Submerged Lands Act, ch. 65, 67
tat. 29 (1953) (codified as amended at 43 U.S.C. §§ 1301-
1315 (1988)). For purposes of both the Pollard doctrine and
the Submerged Lands Act, the extent of a state’s rights may
Teeny Facsnss of idtantnoliinese.
n this part of the case, the dispute is over the
method for determining Alaska’s rights where Ay a
islands. In questions 2, 3, and 4 of the Joint Statement,' the
issue is the effect of near-shore islands in the so-called
leased area of Alaska’s Arctic coast. This stretch of the
coastline lies between 146° and 150° west longitude, in the
Beaufort Sea; it includes Prudhoe Bay. As to oil and gas
leasing of the disputed parts of the area, see supra section I,
Figure 1.1 shows the leased area on a small scale
. The
National Petroleum Reserve—Alaska is to the west, and the
Arctic National Wildlife Refuge is to the east.
i Questions 2 and 3 both have to do with methods for locat-
ing the dividing line between inland waters and the marginal
—— The question of the dividing line also arises in
areas of the Petroleum Reserve and the Wildlife Refuge.
sRusetions 12 and 13 extend questions 2 and 3 to the entire
coast, cy Cape to the Canadian
Lane 4 border. See Supple-
Question 4 concerns another theory of the effect of off-
' The language of the questions will be given i i
given in section B, .
2 For the Petroleum Reserve and the Wildlife Refuge, the rights of the
parties depend also on the questions to be considered in part 2.
20 ii. THE EFFECT OF ISLANDS ON THE COASTLINE
shore islands, this one not depending on the seaward limit of
inland waters but rather on the particular configuration of
islands. Because configurations of the type relevant to ques-
tion 4 exist only in the leased area, there is no further ques-
tion extending question 4 geographically.
The Special Master heard evidence on questions 2, 3, 4,
12. and 13 on May 28 through June 4, 1985. The parties
filed post-hearing briefs and reply briefs in the fall of 1985
and spring of 1986. Final argument was held on November
20, 1986.
A. The United States’ position
A positive answer to any of questions 2, 3, 4, 12, and 13
would be an answer in favor of Alaska. The United States’
position, which all the questions attack, must be understood
as background. I begin with that position and turn later to
Alaska’s various challenges to it. On the United States’
view, all the questions should be answered no.
The United States holds a single theory about how the
sources reviewed in section II should be applied to the north
‘ In this section of the report, the briefs will be referred to as AB,
USB. ARB. and USRB. The corresponding full titles are as follows:
Alaska’s Post-Trial Brief on Questions 2, 3, 4, 12, 13 and 15 of the Joint
Statement of Questions Presented and Contentions of the Parties, Post-
Trial Memorandum of the United States on Issues 2, 3, 4, 12, 13 and 15,
Alaska’s Reply Brief on Questions 2, 3, 4, 12, 13 and 15; Post-Trial
Rebuttal Memorandum of the United States on Issues 2, 3, 4, 12, 13 and
15. Question 15 is treated separately in section IV, infra.
Alaska also presented, on the opening date of trial, a 264-page docu-
ment titled “Chronological Outline of Relevant Events in American For-
eign Policy with Respect to the Delimitation of the Territorial Sea and
Other Maritime Zones, 1782-1985.” A revised version of the chronology
dated June 27, 1995, has been received with consent. A timeline chart to
accompany the chronology, revised from a chart originally submitted
with Alaska’s Reply Brief, was submitted on October 26, 1995.
A. THE UNITED STATES’ POSITION 21
coast of Alaska. It starts from the Alaska Statehood Act
which applies the Submerged Lands Act to Alaska. By the
Submerged Lands Act, in the United States’ view, Alaska
received submerged lands out to three miles from its coast-
line. The location of the coastline, under the Submerged
Lands Act, depends on the seaward limit of Alaska’s inland
waters. The identification of Alaska’s inland waters, under
rnd 1965 California decision, depends on the 1958 Conven-
It now becomes important to review the Convention's
definition of inland waters. The Convention defines the di-
viding line between inland waters (or “internal waters”) and
the marginal sea (or “territorial sea”) in terms of a baseline:
Article 5
L. Waters on the landward side of the baseline of the
territorial sea form part of the internal waters of the State.
Normally the baseline is the low-water line along the coast:
f Article 3 r
xcept where otherwise providea in these articles, the
normal baseline for measuring the breadth of the territo-
rial sea is the low-water line along the coast as marked on
— charts officially recognized by the coastal
tate.
Respecting the baseline for islands, the Convention simply
provides:
Article 10
2. The territorial sen of an ielend is measured in eccer-
dance with the provisions of these articles.
With a “normal baseline” under Article 3, this means that
each island has its own belt of territorial sea.
for a distance determined by each nation for itself. The
22 ill. THE EFFECT OF ISLANDS ON THE COASTLINE
United States has traditionally claimed three miles—the
same width as the standard grant to the states under the Sub-
merged Lands Act. The outer limit of the territorial sea
(given the baseline and the width) is constructed by a
method called the method of arcs of circles. Article 6 of the
Convention defines the result of the method: “The outer
limit of the territorial sea is the line every point of which is
at a distance from the nearest point of the baseline equal to
the breadth of the territorial sea.”
Figure 3.1 shows the normal baseline and the three-mile
belt in the presence of coastal islands. The figure is a sche-
matic representation of the United States’ position as to
Alaska’s rights in submerged lands. It also illustrates the
consequences to which Alaska objects. If offshore islands
each have independent three-mile belts, they may create
enclaves of federal lands—that is, lands that are more than
three miles from any upland but which are wholly sur-
rounded by lands within the three-mile belt. There may also
be pockets or cul-de-sacs of federal lands—that is, areas that
are largely, though not entirely, so surrounded.°
* To envision the working of the method, one may imagine a circle,
whose radius is the width of the territorial sea, rolling along the seaward
side of the baseline. The outer limit of the territorial sea will be the path
traced by the center of the circle. See 1 Aaron L. Shalowitz, Shore and
Sea Boundaries 169-72 (U.S. Dep’t of Commerce Pub. 10-1, 1962).
» The parties have often referred to these as enclaves or cul-de-sacs of
high seas. Since the territorial sea was extended to twelve miles, supra
section II, note 3, that designation is no longer accurate. It does remain
accurate to call the disputed areas enclaves or cul-de-sacs of outer conti-
nental shelf lands. See supra section II, note |.
A. THE UNITED STATES’ POSITION 23
“POCKET”OR"CUL-DE-8ac”
BEYOND THREE-MLE BELT
MAINLAND
10
is
SCALE IN NAUTICAL MILES
STRICT APPLICATION OF THE METHOD OF ARCS OF CIRCLES
DRAWN FROM THE “NORMAL BASELINE” OF ARTICLE 3
OF THE 1958 CONVENTION
Figure 3.1. The normal baseline and the three-mile belt in the pres-
ence of islands.
24 ill. THE EFFECT OF ISLANDS ON THE COASTLINE
Figure 3.2 shows the United States’ position as applied in
the leased area. It includes at least one federal enclave, just
south of the Stockton Islands. A second, larger area, land-
ward of the islands from the Midways to the McClures, is
either another enclave or a cul-de-sac depending on the out-
come of question 5.®
6 Question 5, treated in section V infra, asks whether Dinkum Sands
is an island. If it is, the island generates its own three-mile belt, which
overlaps the belts of other islands to create an enclave. Even if Dinkum
Sands is not an island, the islands that do exist in the vicinity create a cul-
de-sac under the United States’ position.
East and west of the leased area, the United States does not assert that
there are enclaves or cul-de-sacs of high seas inside the barrier islands.
Most of the islands are close enough to the mainland to avoid any such
result. In other cases, such as Peard Bay and Dease Inlet in figure 1.1, no
question of enclaves arises because the waters behind the islands are
agreed to form a bay.
EST AVAILABLE COP
~
148°00
as
row
ee
as
A R C T I C
. a ~* . 30 : . *. Prudhoe Boy.
; . : st O's A
. “i en. ° * > e 7 a Td
: . . fom
" , a =. , .
. my anit Mr . .. ‘ “ee 2 =
- bY - @. i ’ = ~4 “ : : . .~™ y: ee . fe -_*- . :
. : : — — — — if Dinkum Sands is anisiand ~-. — - -
| t.. ; - : =
Lome oe TAGs fags ro sax Fyeet 04 |
bh?» | Mg OSES < a 2 — . ra m8 ot, ” ‘ ‘
: 4 Pt eS AS + =" if Dinkum Sands is not anisiand . . Sake
- = >
.- er =. > +
eA Ws ‘ a
, Ad 4 P Compsied A ‘
: “Horrison Boy” doted 1955, “Beechey Point” doted 1955, &
, ae 4, ;
i( AS ./ whe oA : é
j + , e . . . . °
** a - ? ‘ ‘Ge. .* ae * . *
~— 4 At L *
oe S * ae . q :. : 7 , otha’: > : . ;
: trom US Geologic! Survey topographic serves |'250,000 Maps
“Fiaxman isiond”
IZ Wits ie th Te, 2, 58 “et
PE Nine ae Rae iy ‘s .- ome GS, ane alias wy $ fee
ay : : _ «+ * «se> . > Federal Contention in the Leased Area
. 2. » .# ~%e Nore Ameraan Dene of 1927 P *2 P . :
¢ 1so"00 as . « ~ :
- " ' ’
EEE
Figure 3.2
, 146°00
4
/WATIONAL WILDLIFE REFUGE »
ros 4
B. ALASKA’S POSITION 25
B. Alaska’s position
Alaska contests the United States’ position at several
points. Its basic objection, however, is to the claim that
there are federal submerged lands that are wholly or largely
surrounded by state-owned submerged lands.
The objection is grounded in history. The most salient
feature of the history, according to Alaska, is that the United
States never claimed there were high seas in such areas until
well after Alaska became a state. E.g., Tr. 3532. In Alas-
ka’s view, it gained the rights to the disputed lands at state-
hood, and these rights could not later be taken away. E£.g.,
Tr. 3528-29, 3585-86.
Alaska has proposed three other methods, as alternatives
to the United States’ method, by which to draw the dividing
line between state and federal lands offshore. The first
method corresponds to questions 2 and 12 of the Joint State-
ment; the second method, to questions 3 and 13; and the
third method, to question 4. See Tr. 2521-25. The methods
are introduced briefly below. The legal theories offered in
support of the several methods will be treated in later sec-
tions.
1. Questions 2 and 12: straight baselines
The Convention provides an alternative to the normal
baseline described in section A. Questions 2 and 12 of the
Joint Statement refer to this alternate method:
Question 2: Should the extent of Alaska’s submerged
lands in the leased area be determined on the basis of
“straight baselines”?
Question 12: Should the extent of Alaska’s offshore sub-
merged lands between Icy Cape and the Canadian border,
not included within the “leased area,” be determined on
the basis of “straight baselines”?
26 ill. THE EFFECT OF ISLANDS ON THE COASTLINE
The straight baseline provisions appear in Article 4 of the
Convention:
Article 4
1. In localities where the coastline is deeply indented
and cut into, or if there is a fringe of islands along the
coast in its immediate vicinity, the method of straight
baselines joining appropriate points may be employed in
drawing the baseline from which the breadth of the terri-
torial sea is measured.
2. The drawing of such baselines must not depart to
any appreciable extent from the general direction of the
coast, and the sea areas lying within the lines must be suf-
ficiently closely linked to the land domain to be subject to
the regime of internal waters.
6. The coastal State must clearly indicate straight base-
lines on charts, to which due publicity must be given.
Figure 3.3 illustrates the use of Article 4 baselines for a
fringe of islands near the coast, using the same hypothetical
coastline as figure 3.1. Straight baselines join the islands;
there is no fixed limit on their length. Waters on the land-
ward side of the baselines become inland waters. Extending
outward from the straight baselines, which form the seaward
limit of inland waters, are both the territorial sea and the
three-mile belt granted by the Submerged Lands Act. With a
three-mile territorial sea, these coincide.
Alaska proposes the use of Article 4 baselines along the
Arctic coast subject to a limitation that no straight baseline
be more than ten miles long. For the hypothetical coastline
of figures 3.1 and 3.3, the result would be as shown in figure
3.5 (page 31). In the areas actually in dispute, the distances
between adjacent islands are in fact all less than ten miles.
Figure 3.4 shows, for the leased area, the approximate
B. ALASKA'S POSITION 27
MAINLAND
Is
SCALE IN NAUTICAL MILES
APPLICATION OF ARTICLE 4 STRAIGHT BASELINES
Figure 3.3. Article 4 straight baselines. The baselines shown are not
limited by the distance between islands. For the effect of limiting Article
4 baselines to ten miles, as Alaska proposes, see figure 3.5.
28 Il. THE EFFECT OF ISLANDS ON THE COASTLINE
straight baselines proposed and the three-mile limit beyond
them.’
As a comparison of the schematic figures makes plain,
straight baselines can significantly increase a state’s inland
waters. Although less obvious from the figures, they can
also increase the area within the three-mile belt. Under the
arcs-of-circles method (fig. 3.1), the belts around islands
may overlap, so that on the seaward side the perimeter of the
three-mile belt comes to a point. With straight baselines be-
tween islands (figs. 3.3, 3.5) such points are eliminated,
bringing additional smal! wedge-shaped areas inside of the
three-mile belt. Alaska has referred to these as the “pointed
intrusions of high seas.” AB 27.
With straight baselines of up to ten miles (fig. 3.4),
Alaska would gain, as inland waters, the areas inside the is-
lands that were shown as federal enclaves or cul-de-sacs in
figure 3.2. It would also gain numerous wedge-shaped areas
that newly come within the three-mile limit. East and west
of the leased area, the additions to lands inside the three-mile
limit are fewer and are only of the second type.
” Again the exact lines depend on the outcome of question 5. See
supra note 6. If Dinkum Sands is an island, then straight lines join it to
its neighbors on each side. Otherwise, one longer line (about 9.2 nautical
miles) joins the neighbors directly. See AB 29.
= 4
i _ ee | << = <~ Song, ———.
=
~
— - \
— : : ae et ir)
4
M4 ~ . aaa > *
- = fa - "y - + 6
o < ~e or a
~ ~ XY ? 7 PONT —
— . \ &,
—— ‘ - \
-_ m
of ; ‘ ae . . g 3... : : . oo eee f. . \ 4%
, ° a ~~
e* a
— a - ”
“ ° -
- -
” a ° « =
- :
. ~ > .
~ 4 <.
ad y : a
> 4
- - % P ) ‘
‘ : —— —uv mee if Dinkurn Sands is an tsiand-
j = ; a >. . 4 . .
oe eee _- ee ° if Dinkum Sands ts not an isiand
. “ = - . b* « ° ? +
= : Comoves fram US Geologico! Survey topograpmc senes | 250,000 Maps
Morrison Boy” dotec 1955. “Beechey Pont” doted 1955. & “Ficxumon isiond”
Gotec 1955. mune rewsions 1962
ae os fe State of Alaska Contention in the Leased Area
s+ : <_ + North Amencan Ostum of 1927 *
ch)
Stockton
islands
re
rm
ae
—"™ ‘ ae
=
“ 4@
Figure 3.4
Fiaxmar
tsiand
se
eg ARETIC }
y ~~ ‘
NATIONAL WILDLIFE REFUGE
*
L£
1<6°OD as vA . »~
B. ALASKA'S POSITION 29
2. Questions 3 and 13: the ten-mile rule
The previous questions, questions 2 and 12, asked
whether the extent of Alaska’s offshore submerged lands
should be delimited by Article 4 straight baselines up to ten
miles long. Questions 3 and 13 assume that Article 4 base-
lines are not to be used. They ask whether the submerged
lands between the shore and the barrier islands are inland
waters even without Article 4:
Question 3: Do the submerged lands between the main-
land and the barrier islands in the leased area (including
areas more than three miles from any upland) belong to
Alaska on the ground that they underlie inland waters?
Question 13: Should the extent of Alaska’s offshore sub-
merged lands between Icy Cape and the Canadian border,
not included within the “leased area,” be determined on
the basis that the waters between the mainland and the
barrier islands are inland waters, even if the “straight
baseline” contention is not accepted?
Associated with questions 3 and 13 is a method for delim-
iting inland waters behind fringing islands known as the ten-
mile rule. The Court found in 1985 that such a rule has
indeed been the policy of the United States:
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 en-
trance 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 Bound-
ary Case), 470 U.S. 93, 106-07 (1985) (opinion by Black-
mun, J.). In making this finding, the Court drew on the find-
30 ill. THE EFFECT OF ISLANDS ON THE COASTLINE
ings of its Special Master. United States v. Louisiana (Ala-
bama and Mississippi Boundary Case), Report of Special
Master Walter P. Armstrong, Jr., at 5-6, 53-54 (1984) (U.S.
Ex. 85-503).8
The parties agree that the historic policy of the United
States on enclosing inland waters is a question of fact, Tr.
3522, 3565, and Alaska does not seek to invoke collateral
estoppel against the United States, Tr. 3521-24 (citing
United States v. Mendoza, 464 U.S. 154 (1984)). Accord-
ingly, the question of the ten-mile rule—its existence, its
scope, and its life-span—has been treated as open for fresh
consideration in these proceedings.
Figure 3.5 illustrates the ten-mile rule along the same fic-
titious coastline as the other figures. The lines shown differ
from the Article 4 straight baselines of figure 3.3 only be-
cause of the length limitation. Along Alaska’s north coast,
where none of the islands are as much as ten miles apart, this
difference does not exist. See Tr. 2925; AB 29; ARB 13 n.3.
Hence figure 3.4 serves again to show the actual lines pro-
posed.
3. Question 4: assimilation and simplification
Should Alaska prevail on question 2 or question 3, the
disputed parts of the leased area become inland waters and
belong to the State. Question 4 becomes significant if the
United States prevails on both questions 2 and 3. It asks
whether the disputed areas belong to Alaska even if the
waters are not inland:
Question 4: If they do not underlie inland waters of
Alaska, do the submerged lands between the mainland
and the barrier islands in the leased area which are more
® Reprinted in The Reports of the Special Masters of the United States
Supreme Court in the Submerged Lands Cases, 1949-1987 (Michael W.
Reed, G. Thomas Koester, & John Briscoe eds., 1991), at 349.
B. ALASKA’S POSITION
3]
INLAND WATERS
~MILE BELT )
THE TEN-MILE RULE
ARDING THE BASELINE, AS OPPOSED To
BOUNDARY CASE, 470 U.S.93 (1985)
THE OUTER LIMIT OF THE THREE
AS DESCRIBED IN THE ALABAMA AND MISSISSIPP}
( A RULE REG
MAINLAND
SCALE IN NAUTICAL MILES
Figure 3.5. The ten-mile rule.
32 Ill. THE EFFECT OF ISLANDS ON THF COASTLINE
' than three miles from any upland, but are totally sur-
rounded by submerged lands owned by Alaska, belong to
Alaska on the ground that they lie within Alaska’s most
seaward contiguous boundary?
Question 4 is based on another method for dealing with
enclaves and cul-de-sacs that are created by the presence of
coastal islands. This method, called the method of assimila-
tion and simplification, is illustrated in figure 3.6. Here
enclaves of high seas, and optionally certain cul-de-sacs of
high seas as well, are assimilated to the territorial sea. The
method was first proposed in 1930, and the parties agree that
for some period it represented the official international pol-
icy of the United States. AB 53-54; USB 26-27; Tr. 3567
(United States).
C. Organization of the discussion
Despite the correspondence between methods and ques-
tions, it is not practical to treat each delimitation method as a
separate topic. They are interrelated in too many ways. For
example, Article 4 contains one version of straight baselines;
the ten-mile rule may constitute another version; and it is
disputed whether the two versions are essentially the same or
essentially different. Furthermore, the argument for drawing
straight baselines under Article 4 rests on the historical prac-
tice that the United States is said to have followed with
respect to the ten-mile rule. And the historical practice with
respect to the ten-mile rule cannot be separated from the his-
torical practice with respect to the assimilation method: the
two methods provide distinct and possibly incompatible ap-
proaches to similar situations.
Therefore, I will proceed instead in terms of the various
theories Alaska has suggested in support of using one or an-
other of the methods. In the next section I consider certain
points of statutory interpretation relating to the Alaska
33
MAINLAND
ASSIMILATION AND SIMPLIFICATION” MET HOD OF
DELIMITATION FIRST ADVANCED BY THE UNITED STATES AT
THE 1930 HAGUE CODIFICATION CONFERENCE
THE *
dn. AREAS “ASSIMILATED” TO THREE-MILE BELT
SCALE IN NAUTICAL MILES
Figure 3.6. The method of assimilation and simplification.
34 lll. THE EFFECT OF ISLANDS ON THE COASTLINE
Statehood Act and the Submerged Lands Act. I conclude
there that the general rules are much as the United States
claims. Under these rules, the normal baseline provisions of
the Convention would be controlling, with results as shown
in figures 3.1 and 3.2.
s fae turn to whether any exception to the general rules
applies. The Court has said that a contraction of a state’s
recognized territory, made by the United States in the name
of foreign policy, would be highly questionable. United
States v. California, 381 U.S. 139, 168 (1965); United States
v. Louisiana (Louisiana Boundary Case), 394 U.S. 11, 73
n.97, 77 n.104 (1969); United States v. Louisiana (Alabama
and Mississippi Boundary Case), 470 U.S. 93, 111-12
(1985). Section E examines the doctrine and the ways it
might apply to Alaska. Section F reviews the past practice
of the United States, which is critical to whether a contrac-
tion has taken place. Finally section G recommends answers
to the questions posed in the Joint Statement.
D. Statutory provisions
1. The Alaska Statehood Act
The Alaska Constitution provides:
The State of Alaska shall consist of all the territory, to-
gether with the territorial waters appurtenant thereto,
included in the Territory of Alaska upon the date of ratifi-
cation of this constitution by the people of Alaska.
Alaska Const. art. XII, § 1. The Alaska Statehood Act
“accepted, ratified, and confirmed” the constitution. Pub. L.
No. 85-508, § 1, 72 Stat. 339 (1958), reprinted in 48 U.S.C.
note preceding § 21 (1988). The Statehood Act says, simi-
larly to the constitution, that the State “shall consist of all the
territory, together with the territorial waters appurtenant
thereto, now included in the Territory of Alaska.” Jd., § 2.
D. STATUTORY PROVISIONS 35
The parties agree that the description of the State’s terri-
tory in the Statehood Act does not itself convey any sub-
merged lands. Tr. 3510 (Alaska); Tr. 3542, 3545 (United
States). Rather, submerged lands were provided for in the
Statehood Act by section 6(m):
The Submerged Lands Act . . . shall be applicable to the
State of Alaska and the State shall have the same rights as
do existing States thereunder.
The parties also agree that Congress intended, in this sub-
merged lands provision, to treat Alaska on an equal basis
with the other states. AB 11, 70, 123-24; USB 7, 68-69.
On these agreed points the parties are clearly correct. See
generally Alaska Statehood: Hearings on S. 50 Before the
Senate Comm. on Interior and Insular Affairs, 83rd Cong.,
2d Sess. 219-26, 280-82 (1954) (“1954 Senate Hearings’’);
Hawaii-Alaska Statehood: Hearings on H.R. 2535, H.R.
2536, and Related Bills Before the House Comm. on Interior
and Insular Affairs, 84th Cong., Ist Sess. 114-19, 246—50,
270-76 (1955) (“1955 House Hearings”). The question
remains how the Submerged Lands Act applies to Alaska in
practice.
* Members of the Senate committee took special care to distinguish
between the location of the boundary and the question of title to sub-
merged lands inside the boundary:
Senator Corpon. .. Senator Daniel, . . . . [t}he second paragraph
of the suggested substitute language ... reads:
The State of Alaska shall consist of all the territory, together with
the territorial waters appurtenant thereto, now included in the Ter-
ritory of Alaska.
In your opinion, will that language give to the new State of Alaska a
political or State boundary 3 miles from shore?
Senator DanieL. It would give the State of Alaska at least that, |
would say.
Senator Dante. Your question related strictly to the boundaries
36 lll. THE EFFECT OF ISLANDS ON THE COASTLINE
2. The Submerged Lands Act
The Submerged Lands Act provides that the states are
entitled to “the lands beneath navigable waters within the
boundaries of the respective States.” § 3(a), 43 U.S.C.
§ 1311(a). The Act defines “lands beneath navigable
waters” to include
all lands permanently or periodically covered by tidal
waters up to but not above the line of mean high tide and
seaward to a line three geographical miles distant from
the coast line of each such State and to the boundary line
of each such State where in any case such boundary as it
existed at the time such State became a member of the
Union, or as heretofore approved by Congress, extends
seaward (or into the Gulf of Mexico) beyond three geo-
graphical miles... .
§ 2(a)(2), 43 U.S.C. § 1301(a)(2). By going up to the line of
mean high tide, this section includes the tidelands. By guing
seaward three miles from the coastline, it includes the tradi-
tional belt of territorial sea. By going beyond the three-mile
belt to a state’s boundary when it entered the Union, it also
appears to grant to the states certain areas that the United
States has considered high seas.
Somewhat redundantly, the Act also defines the word
“boundaries” to include “the seaward boundaries of a State
_. . as they existed at the time such State became a member
of the new State, did it not, Senator?
Senator Corpon. Yes, the boundary line.
Senator DANIEL. You are not asking about title to the submerged
lands?
Senator Corpon. No. That we will have to take care of as we did
in Hawaii, with a special provision making the provisions of the Sub-
merged Lands Act applicable. | am now simply talking about the
boundaries of the State.
1954 Senate Hearings at 280.
D. STATUTORY PROVISIONS 37
of the Union... .” § 2(b), 43 U.S.C § 130
fi Nn... , B.C. 1(b). Both defi-
nitions are limited by the following ov se
but in no event shall the term “boundaries”
b es” or the term
lands beneath navigable waters” be interpreted as ex-
tending from the coast line more than three geographical
miles into the Atlantic Ocean or the Pacific Ocean. or
more than three marine leagues into the Gulf of Mexico
§ 2(b), 43 U.S.C. § 1301(b).
The Court has stated that the Act
makes two entirely separate types of
grants of submerged
lands to the States. The first is an unconditional aon
allowing each coastal State to claim a seaward
el : toe — geographical miles distant from its
Pee be ae — iS a grant conditioned upon a
United States v. Louisiana, 389 U.S
' S. 155, 156 (1967) (con-
meer the effect of artificial jetties off the Gulf Coast of
Alaska’s claims under the Submer
ged Lands Act
framed in terms of this distinction between a ntasititene’
grant (out to the state’s historic seaward boundaries) and an
ag — my grant (out to three miles). AB 116, 128, 131:
bs 86-8 . Alaska has said that its contentions regarding
ten-mile rule (questions 3 and 13) and the assimilation
ay _— 4) are directed only to the conditional
a. The conditional grant
Alaska argues that Congress, in writi
ng the Statehood
Pa gave careful consideration to its seaward Sasa
that it defined the boundaries in terms of the teritorial sea
claimed by the United States, and that it was aware of
38 ill. THE EFFECT OF ISLANDS ON THE COASTLINE
the relationship to the Submerged Lands Act in making this
definition. Thus Alaska says, “Congress intended Alaska’s
Submerged Lands Act grant to be co-extensive with the ter-
ritorial sea claimed by the United States at the time of
Alaska’s admission.” AB 119.
These points are basically correct. See 1954 Senate Hear-
ings, supra page 35; 1955 House Hearings, supra page 35.
However, Congress did not lay down a line marking Alas-
ka’s seaward boundary or the outer limit of the territorial
sea. It clearly understood that the territorial sea was mea-
sured outward from the coastline. See, e.g, 1955 House
Hearings, supra, at 247-48, 272-73 (remarks of committee
chairman Engle). And since the width of the territorial sea
was three miles, the language of the Submerged Lands Act
defining Alaska’s entitlement would have been (at least pri-
marily) the language italicized:
all lands permanently or periodically covered by tidal
waters up to but not above the line of mean high tide and
seaward to a line three geographical miles distant from
the coast line of each such State and to the boundary line
of each such State where in any case such boundary as it
existed at the time such State became a member of the
Union, or as heretofore approved by Congress, extends
seaward (or into the Gulf of Mexico) beyond three geo-
graphical miles... .
§ 2(a)(2), 43 U.S.C. § 1301(a)(2) (emphasis added).'° Ac-
cordingly, the central question is the location of Alaska’s
coastline.
\0 Under one of Alaska’s suggested delimitation methods, the assimi-
lation method, the territorial sea could in some places be more than three
miles from any point on the baseline. See figure 3.6. Only if that method
was used would the later language of the section, referring to a boundary
extending “seaward . . . beyond three geographical miles,” come into
play. In that case, there would be a further question whether section 2(b)
D. STATUTORY PROVISIONS 39
b. The definition of “coast line”
m.. Submerged Lands Act defines the coastline as fol-
The term “coast line” means the line of ordi
ordi low
rae th oe a portion of the coast which Gi ane
WI open sea and the line marking
ward limit of inland waters . . . . re ad
§ 7S. U.S.C. § 1301(c).
as ’$ next contentions go to the applicati f thi
definition where the ‘mainland is fringed by vrs hen
anauy spaced busier intends. Alaska says that the coastline
in case is formed in part by lines joining the barrier
islands. The United States says that the coastline consists
of the line of ordinary low water along the mainland and
around each island individually. For this result it relies on
the 1965 California case, which held that the meaning of
wat waters in the Submerged Lands Act should conform
1958 Convention, and on subsequent decisions of the
Court. Alaska makes two replies, as follows.
(1) The Douglas amendment
First, Alaska argues that Congress rej ,
4 jected the United
aa interpretation of “coast line” at the time it passed the
ubmerged Lands Act. It points to the Senate floor debate.
me a Douglas of Illinois offered an amendment that
would ve defined “coast li ” . >
States now argues for: ay pet Ce way Ge Unie’
The term “coast line” means the line
. of ordinary lo
water along that portion of the coast of the main continent
nant Act, quoted supra page 37, should be read as limiting grants into
The sean an in the same way as grants into the Atlantic and Pacific.
and F(S\(d\2), below. : rosea ety gong
40 lll. THE EFFECT OF ISLANDS ON THE COASTLINE
which is in direct contact with the open sea and the line
marking the seaward limit of inland waters, and in the
case of any island seaward of such coast, means the line
ot ordinary low water around such island.
99 Cong. Rec. 4240 (1953).'' The purpose, Senator Douglas
indicated, was to foreclose expansive state claims where
there were “remote islands” lying off the coast, as in Califor-
nia. Senator Long of Louisiana objected that the amendment
would cover all offshore islands, even nearby ones such as
the Chandeleur Islands fringing the Louisiana coast, where it
was generally agreed that the intervening waters were inland
waters. The amendment was defeated. 99 Cong. Rec. 4240-
43 (1953).
pee. concludes that to apply the normal baseline provi-
sions of the Convention to near-shore island fringes is con-
trary to the intent of Congress. It suggests that the Court's
1965 decision in United States v. California pertained only
to remote islands like those off the California coast.
I agree with the United States that Alaska’s argument
comes too late. In California the Court found, after a thor-
ough review of just this history, that Congress had no intent
as to the definition of inland waters but meant to leave its in-
terpretation to the courts. It read the rejection of the Doug-
las amendment as merely rejecting the idea that Congress
should adopt its own definition. 381 U.S. at 150-60. After
the California decision adopted the Convention’s definition
for purposes of the Submerged Lands Act, 381 U.S. at 161-
67, the Court went on in the Louisiana Boundary Case to
apply that same definition to near-shore island fringes. '?
|! For the committee version of the definition, which Senator Douglas
sought to amend, see S. Rep. No. 133, 83d Cong., Ist Sess. 2 (1953). The
committee version was the same as that ultimately enacted.
\2 Except, as Alaska emphasizes, for Chandeieur and Breton Sounds,
which the United States had conceded to belong to Louisiana and for a
D. STATUTORY PROVISIONS 41
United States v. Louisiana (Louisiana Boundary Case), 394
U.S. 11, 66-73 (1969); id, Report of Special Master Walter
P. Armstrong, Jr., at 49-52 (1974) (U.S. Ex. 85-415), re-
printed in Reed et al., supra note 8, at 181, and in 59 I.L.R.
249 (ruling that Caillou Bay was not inland water); id , 420
U.S. 529 (1975) (accepting the Master’s report).
(2) The meaning of “open sea”
Second, Alaska argues that the definition of “coast line”
in the Submerged Lands Act has two parts. The coastline
consists of (1) “the line of ordinary low water along that por-
tion of the coast which is in direct contact with the open sea”
and (2) “the line marking the seaward limit of inland
waters.” § 2(c), 43 U.S.C. § 1301(c). The Court has ruled
on the part concerning inland waters, Alaska says, but it has
not determined what Congress meant by the other part of the
definition, “the line of ordinary low water along that portion
of the coast which is in direct contact with the open sea.”
Furthermore, Alaska argues, Congress intended the
phrase “in direct contact with the open sea” to include only
the seaward side of near-shore barrier islands. It relies par-
ticularly on remarks of Senator Holland, in opposition to the
Douglas amend aent (supra page 39), that “the coastline of
Louisiana was along the outer line of the great bow of is-
lands which comprise the Chandeleur Islands” and that under
the committee’s bill “there would be no question about the
outer rim of the Chandeleur Islands being that portion of the
coast which is in contact with the open sea.” 99 Cong. Rec.
4242 (1953). Alaska would draw its own coastline similarly,
along the outer rim of its barrier islands. In addition to Sen-
ator Holland’s statement, Alaska refers to (1) the ordinary
meaning of “open sea,” (2) contemporaneous administrative
time described as inland water. | will consider the implications of that
concession later.
42 ill. THE EFFECT OF ISLANDS ON THE COASTLINE
interpretations of the Submerged Lands Act, (3) the comple-
pa language of the Outer Continental Shelf Lands Act,
43 U.S.C. § 1331(a) (1988), which applies to lands “lying
seaward and outside of” the lands conveyed to the State un-
der the Submerged Lands Act, and (4) the undesirability of
enclaves and pockets of high seas.
On first examination Alaska’s position appears plausible.
I conclude, however, that Alaska’s interpretation of “coast
line” is inconsistent with the 1965 California decision. First,
the Court there took “open sea” simply to mean any waters
other than inland waters:
It is precisely that problem of defining what constitutes
open sea and what constitutes inland waters which we
must decide in the present case.
... . [T]Jhe Convention on the Territorial Sea and the
Contiguous Zone, to which we became a party in 1961,
now establishes rules for separating the open sea from
inland waters.
381 U.S. at 162 n.25. When it made this remark, the Court
was specifically concerned with the meaning of “inland
waters” in the Submerged Lands Act, see id. at 149, 161, and
it was not considering the Act’s usage of “open sea.” The
Court did also indicate, however, that it was adopting the
Convention’s definitions for all purposes concerning delimi-
tation of the coastline. Thus it said in California that its
action “establishes a single coastline for both the administra-
tion of the Submerged Lands Act and the conduct of our fu-
ture international relations,” id. at 165. Later the Court was
even more explicit:
The decision in the second California case . . . held that
Congress had le‘t it up to this Court to define the “coast
line” from which the standard three-mile grant was to be
measured.
D. STATUTORY PROVISIONS 43
United States v. Louisiana, 389 U.S. 155, 158 (1967).
Second, even if one reads California as passing only on
the definition of inland waters, Alaska’s position is still in-
consistent with the decision. The coastline Alaska contends
for would consist not only of the low-water line along the
seaward side of the barrier islands but also of straight lines
connecting the islands. In Alaska’s own view, the latter
would become the seaward limit of inland waters. Tr. 3514.
The State’s position would thus create two kinds of inland
waters: those that qualify as inland under the Convention
(without using Article 4) and those resulting from the inter-
pretation of “open sea” in the Submerged Lands Act. To
recognize the second class as inland waters would contra-
vene California’s holding that the definition of inland waters
should conform to the 1958 Convention.
This conclusion is supported by the testimony of expert
witnesses for both sides. Alaska’s witness on the subject
was Dr. J.R. Victor Prescott, a reader in geography at the
University of Melbourne (since promoted to full professor).
Professor Prescott testified initially that the mainland shore
inside the barrier islands was not in direct contact with the
open sea, Tr. 2926-27, 2931-36, 2951, but he later changed
his position and said that a coast facing the open sea is one
that does not face inland waters. Tr. 2953, 2975-79, 2985~
87. Dr. Robert Smith, Chief of the International Boundary
and Resource Division in the Office of the Geographer, De-
partment of State, testified for the United States in support of
the latter position. Tr. 3202, 3276-79.
Alaska suggests that its reading of “open sea” can be
reconciled with California by considering the lines joining
the islands to be straight baselines, which Article 4 of the
Convention authorizes. Tr. 3525. The conditions for using
straight baselines, however, are severely limited, as I shall
discuss in the next section, and in any case they are indepen-
dent of the meaning of “coast line” in the Submerged Lands
44 Ill. THE EFFECT OF ISLANDS ON THE COASTLINE
Act. I conclude that the “open sea” argument adds no extra
weight to Alaska’s case.
E. The impermissible contraction theory
According to the analysis so far, Alaska’s grant under the
Submerged Lands Act is measured outward from its coast-
line; the coastline depends on the seaward limit of inland
waters; and inland waters are to be defined according to the
Convention.
Under the Convention, waters can qualify as inland
waters in three ways: (1) they are landward of the normal
baseline or of the closing line across a bay, river, or harbor;
(2) the method of straight baselines is used, and they are
landward of a straight baseline; or (3) they qualify as a his-
toric bay.
The United States’ position, as already described, calls for
use of the first method. In general the normal baseline is the
low-water line (Article 3), with special provisions for bays
(Article 7), harbor works (Article 8), and rivers (Article 13),
but not for fringing islands. United States v. Louisiana
(Louisiana Boundary Case), 394 U.S. 11, 66-73 (1969).
Alaska argues for applying the Convention’s second
ground for inland waters, straight baselines, but not for the
third ground, historic bays.'? Alaska also offers another the-
'3 By Article 7(6) of the Convention, “so-called ‘historic’ bays” are
exempted from the usual rules for bays (Art. 7(1)}-7(5)). The Court has
applied the doctrine cf historic bays (or, more generally, of historic in-
land waters) to one fringing island situation, namely Mississippi Sound.
United States v. Louisiana (Alabama and Mississippi Boundary Case),
470 U.S. 93 (1985). The Court found there that “the United States has ef-
fectively exercised sovereignty over Mississippi Sound as inland waters
from the time of the Louisiana Purchase in 1803 until 1971, and has done
so without protest by foreign nations.” 470 U.S. at 102.
The evidentiary requirements for historic inland waters are stringent,
as the quotation just given indicates. Alaska does not claim to be able to
E. THE IMPERMISSiBLE CONTRACTION THEORY 45
ory that is independent of the Convention, which may be
called the “inland waters at statehood” argument. In this
section I examine the legal bases of these arguments; in sec-
tion F, I examine the underlying facts.
1. Article 4 straight baselines
Straight baselines under Article 4 of the Convention are
the first of Alaska’s proposed methods for determining the
State's rights in submerged lands. See supra section B(1)
and figures 3.3, 3.4, and 3.5.
The parties agree that the north coast of Alaska meets the
geographical conditions for straight baselines, as described
in Article 4(1), supra page 26. Alaska’s witness, Dr. Pres-
cot, drew such lines, and the United States agreed that, if
Article 4 baselines were to be used at all, Dr. Prescott’s lines
were in general appropriate. See Tr. 2893-2920, 2921-24:
Ak. Exs. 85-920A through 85-920T; AB 22-31.
The parties also agree, however, that the Convention
makes the use of straight baselines permissive, not manda-
tory. Within the United States, the decision whether to use
straight baselines is normally one for the Federal Govern-
ment, not the states. United States v. California, 381 U.S.
139, 167-69 (1965); United States v. Louisiana (Louisiana
Boundary Case), 394 U.S. 11, 72-73 (1969); United States
v. Louisiana (Alabama and Mississippi Boundary Case), 470
U.S. 93, 99 (1985); United States v. Maine, 475 U.S. 89, 94
n.9 (1986). Thé United States has chosen not to draw
straight baselines under Article 4. Joint Statement 7. The
satisfy them for the lands along its north coast. Cf United States v.
Alaska, 422 US. 184 (1975) (holding evidence insufficient to show Cook
porto we bay). Alaska does rely, however, on some of the same evi-
dence as for Mississippi Sound about the ice of the Uni
ma rene general practice o United
46 lll. THE EFFECT OF ISLANDS ON THE COASTLINE
general rule would thus foreclose Alaska’s claim to Article 4
baselines.
The cases have left room, however, for a possible excep-
tion to the general rule. In the 1965 California case, Califor-
nia argued that, if its inland waters were to be determined
according to the Convention, they should be determined
using Article 4. The Court, rejecting this argument, said that
the State could not use Article 4 baselines to extend our
international boundaries, beyond their traditional limits,
against the expressed opposition of the United States:
We agree with the United States that the Convention rec-
ognizes the validity of straight base lines used by other
countries, Norway for instance, and would permit the
United States to use such base lines if it chose, but that
California may not use such base lines to extend our inter-
national boundaries beyond their traditional international
limits against the expressed opposition of the United
States... . [A]n extension of state sovereignty to an inter-
national area by claiming it as inland water would neces-
sarily also extend national sovereignty, and unless the
Federal Government’s responsibility for questions of ex-
ternal sovereignty is hollow, it must have the power to
prevent States from so enlarging themselves. We con-
clude that the choice under the Convention to use the
straight-base-line method for determining inland waters
claimed against other nations is one that rests with the
Federal Government, and not with the individual States.
381 U.S. at 167-68. At the same time, the Court remarked
that a contraction of a State’s recognized territory by the
United States in the name of foreign policy would be highly
questionable: -
The national responsibility for conducting our interna-
tional relations obviously must be accommodated with the
legitimate interests of the States in the territory over
E. THE IMPERMISSIBLE CONTRACTION THEORY 47
which they are sovereign. Thus a contraction of a State’s
recognized territory imposed by the Federal Government
- _ name of foreign policy would be highly question-
e.
Id. at 168. To evaluate Alaska’s argument, it thus becomes
relevant to determine whether the use of straight baselines
off Alaska’s north coast would be an extension (or the fail-
ure to use them a contraction) compared to former practice
In the Louisiana Boundary Case, 394 U.S. 11 (1969)
Louisiana wanted to use Article 4 baselines connecting the
mainland and fringes or chains of islands along the coast.
~ at 66-67. The Court held to its position in California.
94 U.S. at 72-73. It added that, if the United States refused
to extend its coastline, it would not matter that the motiva-
lion was partially domestic:
While we agree that the straight baseline method was de-
signed for precisely such coasts as the Mississippi River
Delta area, we adhere to the position that the selection of
this optional method of establishing boundaries should be
left to the branches of Government responsible for the
formulation and implementation of foreign policy. It
would be inappropriate for this Court to review or over-
turn the considered decision of the United States, albeit
partially motivated by a domestic concern, not to extend
its borders to the furthes: extent consonant with interna-
tional law.
Id. But, the Court said, if the United States had contracted
its territory from a position that had been its “consistent offi-
cial international stance . . . , it arguably could not abandon
that stance solely to gain advantage” over Louisiana. /d at
74 n.97. Louisiana was to be permitted to argue before the
Special Master that the United States “had actually drawn its
international boundaries in accordance with the principles
and methods embodied in Article 4” in the past:
48 lll. THE EFFECT OF ISLANDS ON THE COASTLINE
Louisiana further contends that the United States is
estopped from denying the “inland water” status of such
areas by its concession in earlier stages of this litigation
that the areas between the mainland and all the offshore
islands were inland waters. . . .
It might be argued that the United States’ concession
reflected its firm and continuing international policy to
enclose inland waters within island fringes. It is not con-
tended at this time, however, that the United States has
taken that posture in its international relations to such an
extent that it could be said to have, in effect, utilized the
straight baseline approach sanctioned by Article 4 of the
Convention. If that had been the consistent official inter-
national stance of the Government, it arguably could not
abandon that stance solely to gain advantage in a lawsuit
to the detriment of Louisiana. Cf. United States v. Cali-
fornia, 381 U.S. 139, 168: “[A] contraction of a State’s
recognized territory imposed by the Federal Government
in the name of foreign policy would be highly question-
able.” We do not intend to preclude Louisiana from argu-
ing before the Special Master that, until this stage of the
lawsuit, the United States had actually drawn its interna-
tional boundaries in accordance with the principles and
methods embodied in Article 4 of the Convention on the
Territorial Sea and the Contiguous Zone.
Id. at 73 n.97 (1969).'4
The parties have disputed exactly what showings would
\4 In the Louisiana Boundary Case, the Master later found that the
United States had not used straight baselines. United States v. Louisiana
(Louisiana Boundary Case), Report of Special Master Walter P. Arm-
strong, Jr. (1974) (U.S. Ex. 85-415), reprinted in Reed et al., supra note
8. at 181, and in 59 1.L.R. 249. The Court accepted the Master’s report.
420 U.S. 529 (1975).
E. THE IMPERMISSIBLE CONTRACTION THEORY 49
have to be made to bring Alaska within the di
e dictum of
Louisiana Boundary Case. The most fundamental ao
ment, however, is clear: Alaska would be required to show
oo —* United States’ present position represents a contrac-
on of territory, compared to its position at the relevant time
ne scena the past. Only if this first showing is made does
wt ce necessary to decide what other requirements there
The next section, section F, will review th
ction, ; e facts about
whether Alaska’s territory has been contracted. ;
2. Inland waters at statehood
The argument for using Article 4 straight baselines, in-
troduced in the previous section, begins from the Court’s
rer 9 in the 1965 California case and the Louisiana
See, Case. Those statements, especially in California,
phasized the interests of the Federal Government and the
states as sovereigns. Alaska also makes a separate argument
which is independent of Article 4 and which rests on its
rights of property. In the Joint Statement it fi i
second position as follows: agra
'S Other requirements that have been
iechidetae Gateninn suggested or at least touched
|. That the United States must have foll inci
Unit owed “the principles and
— embodied in Article 4” quite literally, including even the pub-
sage of charts showing straight baselines in accordance with Article
dig = ge But see Tr. 3558-59 (United States). For Alaska’s
pense , 107, 150-51; ARB 51-52 & app. A at 35-36: Tr.
2. That the United States must have contracted i i
! its territory “solely to
a in a lawsuit to the detriment of” Alaska. USB 57-63. ag
see Tr. 3527 (Alaska), 3562 (United States) (agreeing for different rea-
7 oe is irrelevant).
: all mie Ps i
desman the criteria for a historic bay must be met. USB 55-56; Tr.
50 lll. THE EFFECT OF ISLANDS ON THE COASTLINE
The State of Alaska contends that the submerged lands
between the mainland and the barrier islands in the leased
area underlie waters which Congress considered inland
waters at the time Alaska was admitted to the Union. Ac-
cordingly, Alaska submits (1) that those lands vested in
Alaska at the moment of statehood under the Pollard rule
_. . and cannot be divested by any subsequent change of
law; and (2) that the same result obtains under the Sub-
merged Lands Act.
Joint Statement 9-10. See also Tr. 3528-29, 3585-86; ARB
39-45.
The argument has two strands, one based on the Pollard
rule and the other on the Submerged Lands Act. In the sec-
ond strand, the claim is that the Submerged Lands Act g~ant
to Alaska took effect in January 1959 and so that Alaska’s
rights must be determined as of that date. This claim cannot
be sustained. The same reasoning would lead one to say
that, because the Submerged Lands Act took effect for the
first forty-eight states in 1953, the rights of those states must
be determined as of 1953. But the United States took that
position in the 1965 California case, and the Court rejected
it. 381 U.S. at 164-65. Nor did Congress impose a special
reading on the Submerged Lands Act as applied to Alaska.
On the contrary, the Congress that enacted the Alaska State-
hood Act intended that Alaska be treated under the Sub-
merged Lands Act like the other states. See supra section
D(1).
The other part of Alaska’s argument is based on the Pol-
lard doctrine, which says that new states, upon admission to
the Union, take title to the beds of inland navigable waters
within their boundaries. Alaska says the disputed areas were
considered inlend waters at statehood by virtue of the ten-
mile rule—the sucond of its proposed delimitation methods.
Therefore, Alaska concludes, actions purporting to divest it
of these areas would be an impermissible contraction of its
E. THE IMPERMISSIBLE CONTRACTION THEORY $1
territory under the 1965 California and Louisiana Boundary
cases.
: The United States responds that the ten-mile rule was
not an unqualified principle and most likely would not
serve to enclose the waters shoreward of the barrier islands
off the North Slope of Alaska.” USB 6. Further, it says that
the rule was not its policy at Alaska’s statehood in January
1959: “[T]he federal evidence indicates that the United
States ceased following the so-called ten-mile rule for inter-
national purposes as soon as the Convention had been signed
in 1958. USB 8-9. See also USB 18-42 (giving the
United States’ version of the policy over the years); USB
53-54 (on the qualifications to the rule); USRB 9 n.3, 13-14
(also on the qualifications). Finally, the United States argues
pene re ne the — at statehood in 1959, the doctrine of
. Hagan does not free iti i
phat mae ze the definition of inland
I turn to the evaluation of these arguments in section F.
3. General remarks
Alaska points out that it is not attempting to show that the
waters inside barrier islands qualify as historic bays under
Article 7(6) of the Convention. Rather, it seeks to show that
these waters were inland by virtue of a general delimitation
system that the United States employed at the times signifi-
cant to the development of Alaska’s rights. AB 124-25: Tr.
3531-32. Either because the system amounted to a long-
standing use of straight baselines, or because the system
made the waters inland at the moment of statehood, a later
move to the normal baseline provisions of the Convention
dg Alaska’s view, an impermissible contraction of its
If this were a historic bay case, the burden would be on
Alaska to show, inter alia, a long-continued exercise of gov-
ernmental authority over the disputed areas as inland waters.
§2 Il. THE EFFECT OF ISLANDS ON THE COASTLINE
See United States v. California, 381 U.S. 139, 172-75
(1965); Louisiana Boundary Case, 394 U.S. 11, 74-78
(1969); United States v. Alaska, 422 U.S. 184 (1975); Ala-
bama and Mississippi Boundary Case, 470 U.S. 93 (1985).
| assume arguendo that something less than the disclaimer of
a historic bay might amount to an impermissible contraction
of a state’s territory.'® To relax the requirements, however,
is not to shift the burden of proof. Alaska must at least show
that the disputed areas were once part of its territory. Where
no particularized claim to these areas has been made, it
would require a rather well-established and well-defined rule
for inland water delimitation to imply such a claim. For
such a rule, Alaska relies on the Alabama and Mississippi
Boundary Case.
F. Past delimitation practice of the United States
The past practice of the United States in delimiting its
inland waters and territorial sea bears on two related but dis-
tinguishable questions, raised in sections E(1) and E(2):
1. Has there been a contraction of Alaska’s recognized
territory within the meaning of the California and Louisiana
Boundary cases?
2. Were the disputed areas considered inland waters at
Alaska’s statehood?
In addition, a review of the practice will lead to a con-
clusion about Alaska’s final theory, which is based on the
assimilation of certain waters to the territorial sea.
1. The Alabama and Mississippi Boundary Case
As noted in section B(2), the Court has already made a
finding as to the delimitation practice of the United States in
1959. The context of that finding was a controversy over the
status of Mississippi Sound. The Court said:
6 The United States suggests the contrary. See supra note 15.
F. PAST DELIMITATION PRACTICE OF THE UNITED STATES 53
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 en-
trance 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
Se Ts ee anes tote ange Gallen wave
aware United States had adopted this policy. In-
dou the Wiha Sieh? pedlee eoneted oat torah
length by both the United Kingdom and Norway in the
celebrated Fisheries Case (U.K. v. Nor.), 1951 1.C.J. 116.
Nor is there any doubt, under the stipulations of the par-
ties in this case, that Mississippi Sound constitutes inland
waters under that view.
United States v. Louisiana (Alabama and Mississippi Bound-
ary Case), 470 U.S. 93, 106-07 (1985) (footnotes omitted)
In a footnote the Court added: ,
The United States confirmed this policy in a number of
official communications during the period from 1951 to
1961. See Report of Special Master 48-54. Also, the
United States followed this policy in drawing the Chap-
man line along the Louisiana coast following the decision
in United States v. Louisiana, 339 U.S. 699 (1950). See
Shalowitz, at 161. In a letter to Governor Wright of Mis-
SiSSippi, written on October 17, 1951, Oscar L. Chapman,
then Secretary of the Interior, indicated that if the Chap-
man line were extended eastward beyond the Louisiana
a it would enclose Mississippi Sound as inland
470 U.S. at 106 n.9.
The parties ag
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