# Special Master Report — Cuban American Bar Ass'n v. Christopher > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0005%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Special Master Report - **Published:** January 1, 1995 - **Citation:** 516 U.S. 913 ## Text > 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 . 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 :..: yon- 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 .- 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 | * - = fa - "y - + 6 o . ~ 4 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+ : 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 agree that the Court’s finding in the Alabama and Mississippi Boundary Case was one of fact, and Alaska does not seek to invoke collateral estoppel against the United 54 Il. THE EFFECT OF ISLANDS ON THE COASTLINE States. Rather, Alaska has introduced evidence aimed at proving the ten-mile rule independently—including, among many other documents, those referred to in the Court's foot- note and in the Master’s report there cited. The United States contests Alaska’s interpretation of the evidence. It says that the Court’s statement of the ten-mile rule was overly broad and was not necessary to the decision. | agree with the United States that the ten-mile rule was not strictly necessary to the decision. It was one element among others contributing to a finding that Mississippi Sound was a historic bay. See supra page 44 n.13. As to the scope of the rule, the United States explains that the matter was not fully briefed. Tr. 3567. The explanation seems correct. In his report (supra page 30), Special Master Armstrong quoted numerous statements of the pre-Conven- tion policy for delimiting inland waters, id. at 39-42, 48-53, and he concluded: On March 24, 1961 the United States ratified the Ge- neva Convention, which, as noted in United States v. Cal- ifornia, supra, represented a departure from its previously held position; therefore the material quoted above repre- sents the publicly stated position of the United States from 1903 (Alaskan Boundary Arbitration) to that date. Under that position, there is no doubt that Mississippi Sound constituted inland waters, as none of its mouths exceeds ten miles in width. Id. at 53-54. There is considerable variation among the statements the Master quoted in support of this conclusion, but as I read the report, he did not select any particular state- ment of policy as being more accurate or more authoritative than the others. Rather, the selection was ascribed to him by Mississippi in its reply brief to the Court: Neither does the United States take issue with the Mas- ter’s finding that the United States prior to the effective F. PAST DELIMITATION PRACTICE OF THE UNITED STATES 55 date (September 10, 1964) of the Convention on the Ter- ritorial Sea had adopted a policy of enclosing as internal waters those areas between the mainland and offlying islands which were so closely grouped that no entrance exceeded ten (10) nautical miles in width. (Report, pp. 41-44 and 48-54). Reply Brief for the State of Mississippi at 26-27, Alabama and Mississippi Boundary Case, 470 U.S. 93 (1985) (foot- note omitted). At oral argument, counsel for Alabama de- scribed the policy somewhat differently: [T]}he ten-mile rule . . . is basically a rule that inland waters of the United States which are straits or sound{s] which lead to other bodies of inland water, which are no more than ten miles wide, should be dealt with - closed as inland water. sy ps tg Transcript of oral argument, Alabama and Mississippi Boundary Case (Ak. Ex. 85-231a), at 37. The Court’s a ion then stated the rule in the language Mississippi had used, with a correction in the duration to accord with the Master’ s er “ U.S. at 106-07. ven this history, I do not believe that the i Alabama and Mississippi Boundary Case tence wr upon what statement of the rule most accurately reflected United States policy regarding near-shore islands. For Mis- sissippi Sound, the differences among statements apparently made no difference in result. For the northern coast of Alaska, that may not be the case. Moreover, as the differing descriptions just referred to suggest, the exact nature of the United States’ historic practice is a matter of some intricacy. Because of the Court’s statement in the Alabama and Missis- sippi Boundary Case, | have included in this report a more detailed examination of the practice than might otherwise have seemed necessary. 56 lll. THE EFFECT OF ISLANDS ON THE COASTLINE 2. United States policy to 1929 In the 1947 California case the Court found that, shortly after we became a nation, our statesmen took actions that led to acquisition by the Federal Government of a three-mile belt of marginal sea: From all the wealth of material supplied, . . . we cannot say that the thirteen original colonies separately acquired ownership to the three-mile belt or the soil under it, even if they did acquire elements of the sovereignty of the En- glish Crown by their revolution against it. At the time this country won its independence from England there was no settled international custom or un- derstanding among nations that each nation owned a three-mile water belt along its borders. . . . It did happen that shortly after we became a nation our statesmen became interested in establishing national dominion over a definite marginal zone to protect our neutrality. Largely as a result of their efforts, the idea of a definite three-mile belt in which an adjacent nation can, if it chooses, exercise broad, if not complete dominion, has apparently at last been generally accepted throughout the world .. . . That the political agencies of this nation both claim and exercise broad dominion and control over our three-mile marginal belt is now a settled fact. . . . Not only has acquisition, as it were, of the three-mile belt been accomplished by the National Government, but protection and control of it has been and is a function of national external sovereignty. United States v. California, 332 U.S. 19, 31-34 (1947) (cita- tions and footnotes omitted). The parties have traced the development of this claim to a marginal belt and, with it, the development of the doctrine of inland waters, from whose seaward limit the marginal belt begins. Rather little of the early material deals specifically F. PAST DELIMITATION PRACTICE OF THE UNITED STATES 57 with waters behind islands. The authorities that do exist, however, provide background useful for understanding later efforts at codification. a. Delaware Bay The first relevant precedent was an opinion submitted in 1793 by Attorney General Edmund Randolph to Secretary of State Thomas Jefferson. Seizure in Neutral Waters, 1 Op. Att'y Gen. 32. Although the facts involved a bay rather than islands,'’ the opinion quoted one passage relevant to both. The following comes from the seventeenth-century Dutch writer Hugo Grotius: [I]t seems to appear that the property and dominion of the sea might belong to him who is in possession of the lands on both sides, though it be open above as a gulf, or above and below as a strait; provided it is not so great a part of the sea, that, when compared with the land on both sides, it cannot be supposed to be some part of them. 1 Op. Att’y Gen. at 36 (quoting Grotius, Of War and Peace, book 2, ch. 3, sec. 7) (emphasis added). The significance of this passage has recently been noted in connection with an- other dispute involving islands less than ten miles apart. United States v. Maine (Massachusetts Boundary Case), Report of Special Master Walter E. Hoffman, at 34-36, 38, '? Randolph held that Delaware Bay was within the territory of the United States and that the shi had i i - es ip Grange had therefore been illegally seized On the basis of Attorney General Randolph’s opinion, Delaware nas Saag elie as Shenae billed Geetenadithe ttead tam and Gen under the 1958 Convention, as a juridical bay less than 24 miles wide. Ak. Ex. 85-208, at 7 (attachment to letter from Edmund B. Clark, Depart- ment of Justice, to Leonard C. Meeker, Legal Adviser, Department of State (Sept. 23, 1968)); Ak. Ex. 85-215 (letter from Leonard C. Meeker to Solicitor General Erwin N. Griswold (Apr. 8, 1969)). 58 ill. THE EFFECT OF ISLANDS ON THE COASTLINE 62-63 (Oct. Term, 1984) (U.S. Ex. 85-903), reprinted in Reed et al., supra note 8, at 703, exception overruled, 475 U.S. 89 (1986).'8 b. Long Island Sound Another early case, this one concerning Long Island Sound, was decided by the New York Court of Appeals in 1866. Mahler v. Norwich & New York Transportation Co., 35 N.Y. 352. A fatal boating accident took place on the sound, and the plaintiff charged the transportation company with negligence. The trial court dismissed the complaint on the ground that the collision occurred outside the jurisdiction of the State of New York. The Court of Appeals, reversing, found that the place of the accident was within the state boundary. To construe the boundary statute as excluding the waters of the sound, the Court said, would be an abandonment, by a maritime power, of juris- diction over an inland body of water, inclosed within the 'S In the dispute before Special Master Hoffman, Massachusetts claimed Vineyard Sound and Nantucket Sound as historic inland waters under Article 7(6) of the 1958 Convention. Report at 9, 10. The Master found that both sounds were “the kinds of bodies of water which both En- glish and American practice [during the colonial and early national pe- riods} would have considered suitable for treatment as inland, county waters” or “waters inter fauces terrae." Id. at 37-38. Ultimately Special Master Hoffman concluded that Massachusetts had established historic title to Vineyard Sound, Report at 61, but not to Nan- tucket Sound because there had been no timely actual assertion of juris- diction, id at 64-66. Regarding the effect of the ten-mile rule as found by the Court in the Alabama and Mississippi Boundary Case, the Master repeated that “while either the United States or Massachusetts cou/d have treated Nantucket Sound as internal waters, their actions and fishing stat- utes, standing alone, could only serve as an exercise of jurisdiction, but fell short to show any actual intent to establish jurisdiction over Nan- tucket Sound.” Report at 69.3 n.1. F. PAST DELIMITATION PRACTICE OF THE UNITED ST ATES 59 State at each of its termini, and with no outlet to the ocean except under the command of our cannon from either shore. That Long Island Sound was included within the terri- torial dominions of the British Empire, at the date of the charter from Charles the Second to the Duke of York, isa Proposition too plain for argument. It was an inland arm of the sea, washing no shores but those of the provinces, and with no opening to the ocean, except by passing be- tween British headlands less than five miles apart... . The rule is one of universal recognition, that a bay, strait, sound or arm of the sea, lying wholly within the domain of a sovereign, and admitting no ingress from the ocean, except by a channel between contiguous headlands which he can command with his cannon on either side, is the subject of territorial dominion. . . . Within this rule, the islands at the eastern extremity of Long Island Sound are the fauces terrae, which define the limits of territorial authority, and mark the line of separation between the open ocean and the inland sea. Id. at 354-56 (citations omitted). Either by the charter to the Duke of York or by the revolution, the states had succeeded to the rights of the king, id. at 356, and New York had not relinquished these rights (so far as pertinent here) to the Fed- eral Government, id. at 357. Furthermore, New York’s ju- risdiction over Long Island Sound was supported by long usage and had never been disputed. /d at 360. . Although the Mahler case does not state a ten-mile rule,!9 it has been cited as a principal authority for treating islands '? The range of cannon, mentioned in the opinion, was conventional taken to be three miles. See | pana |. thant, Shoeant tue Band aries 24-26 (U.S. Dep’t of Commerce Pub. 10-1, 1962). 60 II. THE EFFECT OF ISLANDS ON THE COASTLINE less than ten miles apart as enclosing inland waters. | Shalo- witz, supra note 19, at 108 n.7. See also id. at 141 n.73,.20 c. Cuba and the Florida keys Another early occasion for considering the effect of is- lands was a dispute between the United States and Spain over the breadth and delimitation of the territorial sea off the coast of Cuba. On August 10, 1863, Secretary of State Sew- ard wrote to Mr. Tassara, the Spanish Minister, protesting Spain’s claim to a six-mile breadth but acknowledging that, along some parts of the coast, the baseline would be a line of offshore keys: The undersigned has further ascertained, as he thinks, that the line of keys which confront other portions of the Cuban coast resemble, in dimensions, constitution and vicinity to the mainland, the keys which lie off the South- ern Florida coast of the United States. The undersigned assumes that this line of keys is properly to be regarded as the exterior coast-line, and that the inland jurisdiction ceases there, while the maritime jurisdiction of Spain be- gins from the exterior sea front of those keys. Ak. Ex. 85-29. As I shall describe shortly, the United States 20 Long Island Sound itself is now treated (together with part of Block Island Sound) as a juridical bay under Article 7 of the Convention. United States v. Maine (Rhode Island and New York Boundary Case), 469 U.S. 504 (1985). Under the Court’s interpretation of the Convention, that result was made possible only by a finding that Long Island could be treated as part of the mainland. /d at 514-20. Previously, Long Island Sound (but not Block Island Sound) was claimed as historic internal waters. Id at 509. Alaska has not argued that the islands off its Arctic coast could be treated as part of the mainland. F. PAST DELIMITATION PRACTICE OF THE UNITED STATES 61 later quoted this letter as representative of i iti its own positi regarding the baseline and the treatment of islands.2! os d. The Alaska boundary arbitration Although the preceding materials provide some authority for treating waters inside islands as inland waters, Alaska re the “full formulation” of a ten-mile rule for islands to Alaska boundary arbitration of 1903. AB 48. This arbi- ome conducted pursuant to treaty between the United poe and Great Britain, is reported in Proceedings of the askan Boundary Tribunal, 8. Doc. No. 162, 58th Cong 2d Sess. (1903-04) (hereafter Proceedings). ‘ The general area of concern in the arbitration was the Alaska panhandle, that is, the southeastern part of Alaska and not the Arctic coast. The issue was the boundary line between the United States and Canada. This line, inland from the Alexander Archipelago, was first described in a =~ yreress Russia and Great Britain in 1825. Decision may laskan Boundary Tribunal, 1 Proceedings, pt. 1 at . The same boundary description had been used in the iy by which Russia ceded Alaska to the United my r o Argument of the United States, 5 Proceedings, The boundary was defined in terms of the ocean and the coast. In part, it was to follow “the summit of the mountains situated parallel to the coast,” provided, however that when- ever the summit was “more than 10 marine leagues from the ocean, the boundary would be “a line parallel to the wind- ings of the coast, and which shall never exceed the distance 2! The letter does not describe the Uni ited States’ present position. It mantis foe keys do not enclose inland waters. a States v. Florida, 425 U.S. 791, 793 (1976); id, Supplemental eport of Special Master Albert B. Maris (1975) (U.S. Ex. 85-507) reprinted in Reed et al., supra note 8, at 575. , 62 ill. THE EFFECT OF ISLANDS ON THE COASTLINE of 10 marine leagues therefrom.”22. Thus, Alaska was to in- clude a strip, or lisiére, whose inland boundary was at most ten leagues from the coast and, if the mountains referred to were nearer, at their summit. 22 The 1825 treaty, as translated from the French in the opinion of the United States members of the tribunal, read as follows: Ill. The line of demarcation between the possessions of the High Contracting Parties, upon the coast of the continent, and the islands of America to the northwest, shall be drawn in the manner following: — Commencing from the southernmost point of the island called Prince of Wales’ Island, which point lies in the parallel of 54° 40’ north latitude, and between the 131st and the 133rd degrees of west longitude (meridian of Greenwich), the said line shall ascend to the north along the channel called Portland Channel, as far as the point of the continent where it strikes the 56th degree of north latitude, from this last-mentioned point, the line of demarcation shall follow the summit of the mountains (‘la créte des montagnes’) situated parallel to the coast, as far as the point of intersection of the 141st deg, ce of west longitude (of the same meridian); and, finally, from the said point of intersection, the said meridian line of the 141st degree, in its prolongation as far as the Frozen Ocean, shall form the limit between the Russian and Brit’sh possessions on the continent of America to the north-west. IV. With reference to the line of demarcation laid down in the preceding Article, it is understood: First. That the island called Prince of Wales’ Island shall belong wholly to Russia. Second. That wh © «er the summit of the mountains (‘la créte des montagnes’) which extend in a direction parallel to the coast, from the 56th degree of north latitude to the point of intersection of the 141st degree of west longitude, shall prove to be at the distance of more than 10 marine leagues from the ocean, the limit between the British possessions and the line of coast which is to belong to Russia, as above mentioned, shall be formed by a line parallel to the windings of the coast, and which shall never exceed the distance of 10 marine leagues therefrom. | Proceedings, pt. | at 47. F. PAST DELIMITATION PRACT ICE OF THE UNITED STATES 63 lowing all the sinuosities of the mainland shore. Case of Great Britain, 3 Proceedings, pt. 1 at 79-80. F or Lynn Canal, a mainland indentation more than ten miles wide, it proposed a crossing where the canal first narrowed to ten miles or, with a stricter rule, to six miles. Jd 23 The United States argued that this procedure confused the — coastline with the political coastline. In the United oom ree the treaty used “coast” to mean the physical re ine 0 the mainland, including al! its sinuosities. Thus isiére ran inland from (for example) the head of Lynn > In support of a ten-mile line. G itai a ten- , Great Britain quoted the ba i rule from a convention on North Sea fisheries: “Ast regards aa 1. The precise limits within which international regards bay * * as territorial waters have never been ce om ms i national ity over the i i i j ‘dean waters claimed, are evidence going to jus- 3. If the size and configuration of an ing i opening is such that the li may rightly be drawn from headland to headland, the belt of territorisi water is to be measured from the line outwards. Id. at 32. 64 I. THE EFFECT OF ISLANDS ON THE COASTLINE Canal and not from some more seaward line. In contrast, the United States said that the political coastline ran outside the islands of the Alexander Archipelago. Counter Case of the United States, 4 Proceedings, pt. 1 at 31-32; Argument of the United States, 5 Proceedings, pt. 1 at 14-18 (Ak. Ex. 85- 41).24 Spelling out this position at oral argument, counsel for the United States said: © 24 The United States said in its Counter Case: The political coast line (since all arms of the sea not exceeding six miles, and in some cases more, in width, and all islands are practically treated as portions of the mainland) extends outside the islands and waters between them. In the present instance the political or legal coast line drawn southward from Cape Spencer would cross to the northwestern shore of Chichagof Island and follow down the western side of that island and of Baranof Island to Cape Ommaney; at this point it would turn northward for a short distance and then cross Chatham Strait to the western shore of Kuiu Island; thence again turn- ing southward along that shore and along the outlying islets west of Prince of Wales Island, the line would round Cape Muzon and pro- ceed eastward to Cape Chacon; thence following northward along the eastern shore of Prince of Wales Island to Clarence Strait it would cross the latter at its entrance and proceed southeastward to the paral- lel of 54°40’ at the point where it enters Portland Canal. Thus the political coast line of Southeastern Alaska does not touch the main- land between Cape Spencer and 55° of north latitude. Counter Case of the United States, 4 Proceedings, pt. | at 31-32. To similar effect was the printed argument of the United States: The boundary of Alaska,—that is, the exterior boundary from which the marine league is measured,—runs along the outer edge of the Alaskan or Alexander Archipelago, embracing a group composed of hundreds of islands. When “measured in a straight line from headland to headland” at their entrances, Chatham Strait, Cross Sound, Sumner Strait and Clarence Strait, by which this exterior coast line is pierced, measure less than ten miles. That fact, according to the authorities quoted in the British Counter-Case, pp. 24—28, places them within the category of territorial waters. All of the interior waters touching upon the /isiére, such as Behm Canal, Taku Inlet and Lynn Canal are, in the F. PAST DELIMITATION PRACTICE OF THE UNITED STATES 65 [The political coast line] is an imaginary line which the law superimposes upon the physical coast line as a basis. But for the purposes of international law, instead of following all the convolutions and sinuosities of the Coast, it Is permitted to go across the heads of bays and inlets, and it is in that particular that the rule of interna- tional law comes in as to the width of bays and inlets, either 6 or 10 miles. We are not encumbered with that question, because the British Case contends that they must be 10 miles, and we do not dispute it, and these out- side inlets are 10 miles... . The minute you establish it, the minute you fix it, all waters back of it, whether they are waters in the Archipelago there of Alexander or the Archipiélago de Los Canarios, of Cuba, they all became. as Hall says, salt-water lakes: they are just as much inte- rior waters as the interior waters of Loch Lomond ___. Argument of Hannis Taylor, 7 Proceedings 611 (in Ak. Ex. 85-18).25 It is this statement of position on behalf of the United States that is said to constitute the “full formulation” the political 4 ap address the location of Argument of the United States, 5 Proceedings , pt. | at 15-16. Fora depiction of the boundary described, see Ak. Ex. 85-901 A. Related testi- mony appears at Tr. 2632-40, 2716~20, 2745-47. See also Ak. Ex. 85- 99, U.S. Ex. 85-328 (containing a 1952 Justice Department memoran dum, “Alaskan Boundary [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0005%3A09. Public record. Not legal advice.