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In the Supreme Court

United S States

OcToser Term, 1995

UNITED STATES OF AMERICA,

Plaintiff

STATE OF ALASKA

ON THE REPORT OF THE SPECIAL MASTER

"EXCEPTIONS OF THE STATE OF ALASKA AND

“SUPPORTING BRIEF

hig aes a EO P.O. Box 110300

Juneau, Alaska 99811-0300

907-465-3600

2 -

G. Thomas Koester

2250 Fritz Cove Road

— eee eee ——— ee

BEST AVE AVAILABLE COPY

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7. -———s

No. 84, Original

In the Supreme Court

OF THE

United States

October Term, 1995

UNITED STATES OF AMERICA,

Plaintiff

STATE OF ALASKA

ON THE REPORT OF THE SPECIAL MASTER

EXCEPTIONS OF THE STATE OF ALASKA

The Report of the Special Master addresses the rights of

the State of Alaska under the equal footing doctrine and the

Submerged Lands Act, 43 U.S.C. §§ 1301 et seq., along

Alaska’s north coast. The State excepts to three of the

Master’s recommendations: (1) that, where there are near-

shore fringing islands less than ten miles apart, Alaska’s

rights are to be determined not under the 10-mile rule,

which the Court in United States v. Louisiana (Alabama

and Mississippi Boundary Case), 470 U.S. 93 (1985), found

was the United States’ official policy from 1903 to 1961 but,

instead, under the United States’ current practice; (2) that

the feature known as “Dinkum Sands” is not an island and

thus is not part of Alaska’s “coast line” for Submerged

Lands Act purposes; and (3) that Alaska’s entitlement to

the tide and submerged lands within the exterior boundaries

of the National Petroleum Reserve-Alaska was defeated by

Alaska’s Statehood Act. The Master discusses these matters

at pages 19-174, 227-310, and 343-445 of his Report, states

his conclusions at pages 174-75, 310, and 445-46, and

summarizes his recommendations at pages 503-06.

August 1996.

Respectfully submitted,

Bruce M. Botelho

Attorney General

Joanne M. Grace

Assistant Attorney General

G. Thomas Koester

John Briscoe

Washburn, Briscoe & McCarthy

TABLE OF CONTENTS

Stefansson Sound and other areas enclosed by near-

shore fringing islands less than ten miles apart are

inland waters under the 10-mile rule this Court in

1985 found was the United States’ policy from 1903

to 1961, and Alaska owns the lands underlying

GED c ccccocnncenceessctsecncesoscecessonese: 7

A. The United States should be precluded from

relitigating the Court's finding that the 10-mile

rule was the United States’ policy ............ x

B. The evidence supports the Court’s 1985 finding

that the 10-mile rule was the United States’

policy from at least 1903 to 1961 ............. 9

1. The United States’ maritime delimitation

policy when Alaska became a State controls

resolution of these questions ............... 10

2. The Master overlooked well-established

principles governing consideration of the

evidence of the United States’ policy ....... 13

3. The evidence shows that the Court was

correct: The 10-mile rule war \he United

States’ policy from at least 1903 to 1961 .... 16

a. The United States articulated the 10-mile

rule as its policy at the 1903 Alaska

Boundary Arbitration .................. 19

b. The Court recognized that islands enclose

inland waters shortly after the Alaska

Boundary Arbitration .................. 21

c. Two events in 1929 are consistent with the

Ee 22

d. The United States in 1930 preserved the

10-mile rule as a rule for straits leading to

inland seas and rejected the arcs-of-circles

method for islands less than ten miles

e. After 1930, the United States continued to

follow the 10-mile rule .................

f. Congress in 1953 rejected the arcs-of-

circles method in the Submerged Lands

g. The United States in the 1950s and 1960s

used island fringes to delimit inland waters

for Submerged Lands Act purposes ......

h. The United States followed the 10-mile

rule even after the Court adopted the

Convention for Submerged Lands Act

i. The United States changed its position in

1971 for reasons unrelated to international

C. Stefansson Sound and other areas enclosed by

islands on Alaska’s north coast are inland

Beste Gunde on bien’ eutee Go Cxnsnaien

and is part of Alaska’s coast line for Submerged

RED GR concevcscescoccesccocescce:

is sometimes submerged ................55..

B. Dinkum Sands, a permanent alluvial formation

that is far more stable than the Mississippi

mudilumps, is an island under the Convention...

C. Alternatively, Dinkum Sands is an island except

when it is below high tide ...................

The submerged lands within the exterior boundaries

of NPRA passed to Alaska at statehood ..........

A. Congress did not clearly intend to include

submerged lands in NPRA and did not clearly

intend to defeat Alaska’s title to them.........

1. The Pickett Act did not authorize the federal

executive to reserve the submerged lands in

Pee 66dedondsenésddeteekeseceniceccees

requiring the

B. An attempt by the United States to retain title

to submerged lands in a statehood act would

violate the equal footing doctrine .............

" statehood would violate the equal footing

2. When an international duty or a public

exigency necessitates federal retention of

submerged lands, the United States’ retained

interest should be limited to those rights

absolutely necessary rather than fee title... ...

ST Liber ckodededdecdeteaneeccedese<

APPENDIX A

APPENDIX B

TABLE OF AUTHORITIES

Cases

Page

Alaska v. United States, 353 F.2d 210 (9th Cir. 1965) .. 65

Alaska v. United States, (Unpublished Opinion, No. 87-

0450-CV (HRH) (D. Alaska 1996)................ 65, 71

Alaska Pacific Fisheries v. United States, 248 U.S. 78

SEs 606 bd bd nde bees Habbedbedunadasokecesces 68

Amoco Production Co. v. Village of Gambell, 480 U.S. 531

Spee eksoeensceedesantnbeusevescdinceedéesacs 60

The Anna, 165 E.R. 809 (1805) ..............4... 45, 46, 47

Barker v. Harvey, 181 U.S. 481 (1901) ............... 59

Baumhart v. McClure, 21 Ohio App. 491, 153 N.E. 211

Seen edeescodédbsedbedbdsbsectdsksdetsisares 49

Beecher v. Wetherby, 95 U.S. 517 (1877) ............. 71

Borax Consolidated, Lid. v. Los Angeles, 296 U.S. 10

SENSE cocunnsedhtencnnedsussstnhiinbodenecs< 43, 59

Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973) ..... 70

City of Chicago v. Ward, 169 Ill. 392, 48 N.E. 927 (1897) 49

Coyle v. Smith, 221 U.S. $59 (1911) .............055. 67

Federenko v. United States, 449 U.S. 490 (1981) ....... 51

Fisheries Case (U.K. v. Norway), 1951 1.C_J.

SED ov ccdvcccssceecdsenceseececeesecesecccoecs passim

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) ....... 70

Hammonds v. Ingram Industries, Inc., 716 F.2d 365 (6th

Gh Ge dedccdbabnsudededconievésvbedeccescec 49

Hardin v. Jordan, 140 U.S. 371 (1891) ............... 67

Illinois Central R.R. Co. v. Illinois, 146 U.S. 387 (1892) 68

Interstate Circuit, Inc. v. United States, 306 U.S. 208

ED cencddndecoddseeddencesecbecueuceceee: 15, 16, 38

Kohl v. United States, 91 U.S. 367 (1876) ............ 64

Louisiana v. Mississippi, 202 U.S. | (1906) ........... 21

Mammoth Oil Co. v. United States, 275 U.S. 13 (1927) 15, 38

TABLE OF AUTHORITIES

CASES

Page

Mann v. Tacoma Land Company,153 U.S. 273 (1894) .. 59

Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842) ...... 2

Montana v. United States, 450 U.S. 544 (1981) ........ 62

Minnesota v. Hitchcock, 185 U.S.373 (1902) .......... 59

Mulry v. Norton, 100 N.Y. 424, 3 N.E. 581 (1885)..... 49

New Mexico v. Texas, 275 U.S. 279 (1928), modified as to

other issues, 276 U.S. 557 (1928) ..... 2... 66 ecceeee 6

Newhall v. Sanger, 92 U.S.761 (1876)............055. 59

Northern Lumber Co. v. O'Brien, 139 F. 614 (8th Cir.

SO A eal a Se eee 59

Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77 ‘.

ih cccldemsbbatnabhadhdeassesessuddecoeececs

Oregon ex rel. State Land Board v. Corvallis Sand &

Gravel Co., 429 U.S. 363 (1977) ... 6... ccc cece 2, 67, 70

Pollard v. Hagan, 44 U.S. (3 How.) 212) ........ 2, 64, 67, 69

Randolph v. Hinck, 277 Ill. 11, 115 N.E. 182 (1917)... 49

Stearns v. Minnesota ex rel. Marr, 179 U.S. 223 (1900) 68

United States v. Alaska, 422 U.S. 184 (1975).......... 14, 33

United States v. Alaska, 236 F. Supp. 388 (D. Alaska

1964), rev'd on other grounds sub nom. 353 F. 2d 210

LB FEET OUT TTT TTT TTT TTT Te 37

United States v. Alaska, 423 F.2d 764 (9th Cir. 1970),

cert. denied, 400 U.S. 967 (1970)...............4.5. 69

United States v. California, 332 U.S. 19 (1947) ....2,3, 17,69

United States v. California, 381 U.S. 139 (1965) ...... passim

United States v. California (Supplemental Decree), 382

Sh MD Acbbububeedsdecceceescecccoecccs 43

United States v. California, 436 U.S. 32 (1978) ........ 3,17

United States v. City of Anchorage, 437 F.2d 1081 (9th

Se, Me nbeenedécnsdecéonecoessecbedeesesasees 69

TABLE OF AUTHORITIES

CASES

Page

United States v. Florida, 363 U.S. 121 (1960) ......... 40

United States v. Louisiana, 339 U.S. 699 (1950) ....... 26

United States v. Louisiana, 363 U.S. 1 (1960)........ 3, 11, 13

United States v. Louisiana (Louisiana Boundary Case),

SE OE Kn ctiddnendansadcuanesansanes passim

United States v. Louisiana (Texas Boundary Case), 394

Gb EEE nudnestenceminbietinintdnné<cnces 55

United States v. Louisiana (Alabama and Mississippi

Boundary Case), 470 U.S. 93 (1985) .............. passim

United States v. Mendoza, 464 U.S. 154 (1984)........ s

United States v. New York, New Haven & Hartford

Seateas, 555 US. SEB (IGG) oc cccccccccccesccces 15, 38

United States v. Oregon, 295 U.S. 1 (1934) ........... 68

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

RE: nécdvasavddcnnenceibthnicdbedadssinds passim

Widdicombe v. Rosemiller, 118 F. Cas. 295 (C.C.W.D.

SUES GEN Sot demcatiainttta td ee ee 49

Constitutions

U.S. Constitution

TD Widéceseiidd hoe suuhendesoesatieane 63

Alaska Constitution

RES Se a eee ea ie 11, 12

Treaties

Convention on the Territorial Sea and Contiguous Zone,

Apr. 29, 1958, 15 U.S.T. (pt. 2) 1607, T.LA.S.

Sab UE tcandindbanciéhcoaddevseeémsbeenstsens passim

vii

TABLE OF AUTHORITIES

Statutes

Page

Federal }

Act of March 8, 1922, ch. 96, § 2, 42 Stat. 416 (codified as

amended at 43 U.S.C. §§ 270-272 (1996)).......... 71

Alaska Right-of-Way Act of May 14, 1898, ch. 299, 30

Stat. an case version primiarily at 43 U.S.C. §§

942-1 to 942-9 (198B)) 2... cc cece cere eee e eens 58

Alaska Statehood Act, Pub. L. No. 85-508, 72 Stat. 339

(1958) (reprinted as amended in 48 U.S.C. note

preceding § 21 (1987)) ..... 6. cc ceeeeeeeeeennens passim

Dene dbo dL ciibhweddbeneeeséeons ce ds 12

- SP ote. cos cee shes eve deetbubcoses 12

BGKERD ccccccccccccccccccccccvccscccevens 13, 41

BANC). ncccccccccvccvccccscesevececcess passim

Outer Continental Shelf Lands Act, ch. 345, 67 Stat. 462

(1985) (codified as amended at 43 U.S.C.§§ 1331-1356

(1988 & Supp. V. 1993)) ..... 0. cece cere eee e nee 5, 31

4B UBL. 6 1SDEGE) 2. ccccccccccccccsccecs 31

Pickett Act of June 25, 1910, ch. 421, § 1, 36 Stat. 847

(formerly codified at 43 U.S.C. §§ 141-142; repealed in

part 1976; current version at 43 U.S.C. § 142

CIGES)) a ccccccccvccccccscccccccccccvcvcvcess 58, 59, 60

43 U.S.C. § 141 (1970) ... 2... cece cee nee 58, 59

43 U.S.C. § 142 (1970) 2... cece cece eee 58, 60

Submerged Lands Act, ch. 65, 67 Stat. 29 (1953) (codi

fied as amended at 43 U.S.C. §§ 1301-1315 (1988)) .......

MTTTTITTITIITTITTTTTI TTT passim

43 U.S.C. § LSOU(B) ... cece eccecceceees 3, 11

43 U.S.C. § 1301 (C) 0... ccc cece eens 3, 30

43 U.S.C. § 1502... ccc ccccesccccccccesens 31

43 U.S.C. § 1311 (a)... cece ee ee eens 3

43 U.S.C. §1313(a) 0... cece eee eee eees 58, 69, 70

EE SRR SAE Sere 64

TABLE OF AUTHORITIES

Executive and Administrative Materials

Page

Presidential Proclamations

Proclamation No. 5030, 3 C.F.R. 22 (1983) (reprinted in

Be ne I I i 4

Proclamation No. 2667, 59 Stat. 884 (1945)........... 4

Legislative Materials

Hearings

Joint Hearings on S. 1988, 80th Cong., 2d Sess. (1948) 45, 46

Hawaii-Alaska Statehood: Hearings on H.R. 2535, H.R.

2536, and Related Bills Before the House Comm. on

Interior and Insular Affairs, 84th Cong., Ist Sess.

Sees ctbddsdveddndbacdesseasneses vacebaatian 13

Hawaii-Alaska Statehood: Hearing Before the House

Comm. on Interior and Insular Affairs, 84th Cong., \st

DON, Gon dnb cvecbcacacss ciddkbe cécdeuicdes 64

Alaska Statehood: Hearings on S. 50 before the Senate

Comm. on Interior and Insular Affairs, 83d Cong., 2d

Ss WN ok. de eseebe decdenidedconcecdscescun 12

Debates

Sy hs CEP CUED vcenctdccnGidecuvesbawis 30

er ED ov cdcecidicvoudécabdcsecs 30, 31

Pe Se Bs GE CED ov cvceccccacvcececceccece 31

Reports

H.R. Rep. No. 1778, 80th Cong., 2d Sess. (1948), re-

printed in 2 1953 U.S. Code Cong. & Admin. News

1415...

iedceptbecunavenubaaccctae mains. 57

H.R. Rep. No. 695, 82d Cong., Ist Sess. (1951) (“1951

House Report”), reprinted in 2 1953 U.S. Code Cong. &

RE ee ee eae 57

H. R. Rep. No. 215, 83d Cong., Ist Sess. (1953), reprinted

in 2 1953 U.S. Code Cong. & Admin. News 1385)... 57

TABLE OF AUTHORITIES

Legislative Materials

S. Rep. No. 133, 83d Cong., Ist Sess. (1953), reprinted in <-

2 1953 U.S. Code Cong. & Admin. News 1474 ...... 3, 57

S. Rep. No. 1028, 83d Cong., 2d Sess. (1954) ......... 13

Other

Alaska Boundary Controversy (1952)... ......-0++0085 9, 21

Proceedings of the Alaskan Boundary Tribunal, S. Doc.

No. 162, 58th Cong., 2d Sess. (1903-04)............

Public Land Order 82, 8 Fed. Reg. 1599 (1943), revoked

by Public Land Order 2215, 25 Fed. Reg. 12,599 (1960) 64, 65

Erk Reimnitz, et al., U.S. Dept. of the Interior Geological

Survey, Dinkum Sands (U.S. Ex. 84A-504) ......... 53

Solicitor’s Opinion M-36911, 86 Interior Dec. 151 (1978),

supplemented and modified, 100 Interior Dec. 103

CBDDED . cc vccvcccccccccecceevescvcccveccccoscess 65

Statement on United States Ocean Policy, I Pub. Papers of

the President 378 (Ronald Reagan) (March 10, 1983) 50

International Materials

3 Acts of the Conference for the Codification of Interna-

tional Law, Minutes of the Second Commitee: Territorial

Waters, League of Nations Doc. C.351(b).M.145(b).

SGGGY CIDTED oc ccccccccvcccecccsscccccecscecs 24, 45, 47

United Nations, The Law of the Sea, Official Text of the

United Nations Convention on the Law of the Sea 4

CODED oc ccccvcccccscccccesccccccesvescevescooecs 50

TABLE OF AUTHORITIES

Pleadings, Briefs, Arguments

United States v. California (No. 5, Original)

Memorandum of the United States in Response to Request

of Special Master of June 29, 1949 (Aug. 1949), United

States v. California (No. 11 (now No. 5), Original)

(Oct. Term, 1949) (Ak. Ex. 85-063) ............... 17

Brief for the United States in Answer to California’s

Exceptions to the Report of the Special Master United

States (“United States 1964 Brief’) (June 1964),

United States v. California, (No. 5, Original) (Oct.

‘Bee, BGR) CAR, Be, GOED cc cccccccccccccccces 18, 21

United States v. Florida (No. 52, Original)

Report of Albert B., Maris, Special Master (Sept. 1971),

United States v. Florida (No. 52, Original) (Oct. Term,

1973), reprinted in The Reports of the Special Masters

of the United States Supreme Court in the Submerged

Lands Cases, 1949-1987 (Michael W. Reed, G. Thomas

Koester & John Briscoe, eds. 1991) at 471 .......... 41

United States v. Louisiana (No. 9, Original)

Brief for the United States in Support of Motion for

Judgment (Feb. 1957), United States v. Louisiana

(No. 11 (now No. 9), Original) (Oct. Term, 1956)

Ss aes Sc cndasavccustbhaccetnessdneteecs 33,

Brief for the United States in Support of Motion for

Judgment on Amended Complaint (May 1958), United

States v. Louisiana, (No 11 (now No. 9), Original)

(Oct. Term, 1957) (Ak. Ex. 85-007) ............... 33, 34

Reply Brief for the United States on Motion for Judgment

on Amended Complaint (Sept. 1958), United States v.

Louisiana, (No. 10 (now No. 9), Original) (Oct. Term,

pees Ge CE beck cechuugudedecdsecét este 34

TABLE OF AUTHORITIES

PLEADINGS, BRIEFS, ARGUMENTS

Motion by the United States for Entry of a Supplemental

Decree (No. 1), Proposed Supplemental Decree, and

Memorandum in Support of Motion (Nov. 1965),

United States v. Louisiana (No. 9, Original) (Oct.

Term, 1965) (Ak. Ex. 85-167) .......-- 0 cece eeees 37

Motion by the United States for Entry of a Supplemental

Decree (No. 2), Proposed Supplemental Decree, and

Memorandum in Support of The United States and in

ition to the Motion of The State of Lousiana

(Jan. 1968), United States v. Louisiana (No. 9, Origi-

nal) (Oct. Term, 1968) (Ak Ex. 85-168)........--. 38

R of Special Master Walter P. Armstrong, Jr.

Taly 31, 1974), United States v. Louisiana (No. 9,

Original) (Oct. Term, 1974), reprinted in Reed, et al.,

Cee ae Ok ee 47

United States v. Maine (No. 35, Original)

Report of the Special Master, United States v. Maine

(Massachusetts Boundary Case) (No. 35, Original)

(Oct. Term, 1984), reprinted in Reed, et al., supra at

Fisheries Case

Counter-Memorial of Norway, Anglo-Norwegian Fisheries

Case, 1951 1.C.J. Pleadings (July 31, 1950) ... .24, 25, 28, 29

Other Materials

Thomas Baty, The Three-Mile Limit, 22 Am. J. Int'l L.

GED GUT <6 vo ccsccdecvoccedeccseccsoccessccces 23

S. Whittemore Boggs, Delimitation of Seaward Areas

under National Jurisdiction, 45 Am. J. Int'l L. 240

CODGED Sa vcd cdccc cess dberctccccvcccccecceteons 28

xii

TABLE OF AUTHORITIES

OTHER MATERIALS

Page

S. Whittemore Boggs, Delimitation of the Territorial Sea:

The Method of Delimitation Proposed by the Delegation

of the United States at the Hague Conference for the

Codification of International Law, 24 Am. J. Int’! L. 541

FP ensehcnquestiddecksandabeseraddesbbes<chts<. 25

Jonathan I. Charney, Judicial Deference in the Submerged

Lands Cases, 7 Vand. J. Transnatl. L. 383 (1974) .... 14

2 Great Britain and the Law of Nations 369 (H. Smith, ed.

Wn 806555 cds ccbtinknbiockes edacuedeatesicues 23

2 Curtis H. Lindley, Lindley on Mines (3rd Ed. 1914) .. 59

Hale, De Jure Maris (Francis Hargrave, ed. 1787), re-

printed in Stuart A. Moore, A History of the Foreshore

FE GE nk 6 bbb ab ddiians bin tesdennnsaeetos oe 48, 49

Christopher B.V. Meyer, Extent of Jurisdiction in Coastal

ED iidiieducedend dakdhd badd cudciscass 3a

5 Oxford English Dictionary (2d ed. 1989) ............ 61

J.R.V. Prescott, The Maritime Political Boundaries of the

Ny I Guus cuhadduduedeemsnsenindhesacch ys 36

The Reports of the Special Masters of the United States

Supreme Court in the Submerged Lands Cases, 1949-

1987 (Michael W. Reed, G. Thomas Koester & John

eS TCE Uh cacidtnnnncdecsne débivics 41, 42, 47

1 Aaron L. Shalowitz, Shore and Sea Boundaries (U.S.

Dept. of Commerce Pub. 10-1, 1962) .............. passim

2 Aaron L. Shalowitz, Shore and Sea Boundaries (U.S.

Dept. of Commerce Pub. 10-1, 1964) ............ 43, 44, 52

Clive Symmons, The Maritime Zones of Islands in Inter-

I Sidis bh cn ccnc padencssdecmancae. 50

United States Coast Pilot, Pacific and Arctic Coasts Alaska:

Cape Spencer to Beaufort Sea (9th Ed. 1979) ....... 4

No. 84, Original

In the Supreme Court

United States

OCTOBER TERM, 1995

UNITED STATES OF AMERICA,

Plaintiff

STATE OF ALASKA

ON THE REPORT OF THE SPECIAL MASTER

BRIEF FOR THE STATE OF ALASKA

IN SUPPORT OF ITS EXCEPTIONS

INTRODUCTION AND SUMMARY OF ARGUMENT

Alaska owns the lands beneath its inland waters under the

equal footing doctrine and offshore submerged lands within

three miles of its coast line under the Submerged Lands

Act. The United States has exclusive rights to the seabed

seaward and outside of Alaska’s submerged lands to a

distance of at least 200 miles. The issues in this case address

Alaska’s submerged land ownership along its north coast,

and involve both lands beneath inland waters and offshore

submerged lands. The Special Master recommends against

Alaska in three respects, urging (1) that the 10-mile rule

the Court found was the United States’ policy from at least

1903 to 1961, United States v. Louisiana (Alabama and

Mississippi Boundary Case), 470 U.S. 93, 106-07 (1985),

not apply to Alaska because the Court erred in that case,

(2) that the feature known as Dinkum Sands be deemed not

an island and thus not part of Alaska’s coast line because the

accepted definition of an island contains an “implicit modi-

fier” that precludes island status for Dinkum Sands, and (3)

that Congress in the Alaska Statehood Act tacitly intended

to defeat Alaska’s equal footing doctrine rights to the

submerged lands within the National Petroleum Reserve-

Alaska (“NPRA”). Alaska excepts to these three

recommendations.

This Court more than 150 years ago established that lands

underlying navigable waters within State boundaries belong

to the States as an inherent attribute of State sovereignty.

The original thirteen States succeeded to the British

Crown’s sovereign title to such lands following the Revolu-

tion. Martin v. Waddell, 41 U.S. (16 Pet.) 367, 410 (1842).

Title to such lands must vest in subsequently admitted

States to ensure that they join the Union on an “equal

footing” with the original thirteen. Pollard v. Hagan, 44

U.S. (3 How.) 212, 229-30 (1845). “The shores of naviga-

ble waters, and the soils under them, were not granted by

the Constitution to the United States, but were reserved to

the States respectively.” Jd. at 230. “Thus under Pollard’s

Lessee the State’s title to lands underlying navigable waters

within its boundaries is conferred not by Congress but by the

Constitution itself.” Oregon ex rel. State Land Board v.

Corvallis Sand & Gravel Co., 429 U.S. 363, 374 (1977).

Despite the long-standing rule of State ownership, the

United States challenged California’s title to offshore sub-

merged lands shortly after World War II. The Court held

that the equal footing doctrine applied only to lands underly-

ing inland navigable waters and that the United States had

“paramount rights” to offshore submerged lands, United

States v. California, 332 U.S. 19, 38-39 (1947), despite

prior cases indicating that States own all lands underlying

navigable waters within their boundaries, including those

offshore. Jd. at 36.

Believing the 1947 California decision had improperly

divested the States of title to submerged lands, United States

v. Louisiana (“Louisiana”), 363 U.S. 1, 16-20 (1960),

Congress enacted the Submerged Lands Act, 43 U.S.C.

§§ 1301-1315 (1988), to restore offshore submerged lands

to the States. See United States v. California, 436 U.S. 32,

37 (1978). The Act also confirmed State title to lands

underlying inland navigable waters because of concern that

the 1947 California decision might apply to title to those

lands as well. See, e.g.,S. Rep. No. 133, 83d Cong., Ist Sess.

6-7, 62-63 (1953), reprinted in 2 1953 U.S. Code Cong. &

Admin. News 1474. In the Act, Congress “recognized,

confirmed, established, and vested” in the States the title to

lands beneath navigable waters within their boundaries. 43

U.S.C. §1311(a). The Act defines “boundaries” as the

seaward boundaries of a State as they existed at statehood or

as later confirmed by the Congress, but extending from the

“coast line” no more than three miles into the Atlantic or

the Pacific or more than three marine leagues into the Gulf

of Mexico. 43 U.S.C. § 1301(b). “Coast line” includes 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.” 43 U.S.C.

§ 1301 (c).

Despite enactment of the Submerged Lands Act, few

disputes between States and the United States have occu-

pied as much of the Court’s docket as those involving

submerged lands. These cases are fundamentally important

to the States. Title to lands beneath inland waters vests in

the States as a direct consequence of admission to the Union

on an equal footing with all other States. A State’s seaward

boundaries define its offsnore submerged lands, and State

control over offshore resources is key to a coastal State’s

economy and quality of life. In contrast, the United States’

proprietary interest offshore dwarfs the States” (see, e.g.,

Alaska Exhibit (“Ak. Ex.”) 84A-015, reproduced opposite)

even though it does not have the same intimate and direct

connection with near-shore resources as coastal States.

This dispute arose in the mid-1970s. Alaska and the

United States cach claimed ownership of submerged lands

in Stefansson Sound, “an extensive lagoon”? on Alaska’s

north coast enclosed by a fringe of near-shore islands less

waters whose submerged lands vested in the State at state-

hood under the equal footing doctrine. Its coast line for

Submerged Lands Act purposes thus should include the

seaward shores of the islands and straight lines connecting

them. Alaska’s contention as to its submerged lands owner-

ship in the vicinity of Stefansson Sound is shown on Fig-

ure 3.4 of the Report (facing 28).

The United States claimed that Stefansson Sound is not

inland waters, that Alaska owns only those submerged lands

granted by the Submerged Lands Act, and that this grant

must be determined by strictly applying the “arcs-of-cir-

‘In 1945, the United States was the first nation to claim the entire

continental shelf off its shores. Proclamation No. 2667, 59 Stat. 884

(1945). Justice Black thus found it “difficult to understand why the

Federal Government is subjecting the State of Louisiana and this Court

to a long series of technical and wasteful lawsuits” because, once

concluded, “the United States will have little more undersea land than it

already had.” United States v. Louisiana (Louisiana Boundary Case),

394 U.S. 11, 78 n. 2 (1969) (Black, J., dissenting). The United States

now claims resource jurisdiction over a 200-mile Exclusive Economic

Zone (“EEZ”). Proclamation No. 5030, 3 C.F.R. 22 (1983), reprinted

in 16 U.S.C. § 1453 (1985).

? United States Coast Pilot, Pacific and Arctic Coasts Alaska: Cape

Spencer to Beaufort Sea (“Coast Pilot’) 345 (9th Ed., 1979) (Ak. Ex.

136 at the 1980 hearing).

~ =

——_— Ue. Se ee ae re

*4.-

Conservation Zone

MAD SEABED RAT OF AND CLAIMED BY US

Sataid ity. ae

AS FEDERALLY -OWNED OUTER CONTINENTAL Sig F

OCEAN POLICY STATEMENT 363

PRES PEAGAN

Alaska's Submerged Lands Act grant in purple, and the disputed lands in Stefansson Sound in

Figure |. Chart of Alaska’s north coast, AK 84A-015, showing the United States’ EEZ in pink,

amber and green.

om)

hed

—

—_—

La @

—

—)

cles” method — i.e., by swinging three-mile arcs from points

on the mainland and each island.’ In the United States’

view, all lands outside those arcs, even if surrounded by

submerged lands owned by Alaska, constitute federal outer

continental shelf (“ ”) under the Outer Continental

Shelf Lands Act, 43 U.S.C. §§ 1331-1356 (1988 & Supp. V

1993). The United States’ contention in the vicinity of

Stefansson Sound is shown on Figure 3.2 of the Report

(facing 24).

To resolve the dispute, the United States moved for leave

to file a complaint against Alaska under the Court’s original

jurisdiction in May, 1979. The Court granted the motion

and directed Alaska to answer. 442 U.S. 937 (1979). Alaska

answered and sought leave to file a counterclaim raising

additional submerged land disputes along its north coast.

The Court appointed J. Keith Mann as Special Master to

conduct proceedings and report to the Court. 444 U.S. 1065

(1980).

The Master has now submitted his report (the “Report”’).

Alaska excepts to the Master’s recommendations that (1)

Alaska’s submerged land ownership in Stefansson Sound

and other areas enclosed by near-shore fringing islands less

than ten miles apart is limited to lands within three miles of

the mainland and each island; (2) Dinkum Sands, one of

the islands enclosing Stefansson Sound, is not an island; and

(3) submerged lands within NPRA did not pass to Alaska

at statehood.*

*1 Aaron L. Shalowitz, Shore and Sea Boundaries (“1 Shalowitz”)

171 (U.S. Dept. of Commerce Pub. 10-1, 1962). Strict application of

the arcs-of-circles method is illustrated in Figure 3.1 of the Report (at

23).

“Alaska does not except to the Master's recommended finding that

lands underlying coastal lagoons were included in the pre-statehood

application for the Alaska National Wildlife Refuge (“ANWR”). See

Report at 477-99. The Master concludes that title to these lands passed

to Alaska at statehood because ANWR was not established until after

A penchant for making things more difficult than neces-

sary runs through the Report. The issues on which Alaska

excepts to the Master’s recommendations, however, are

easily resolved. Shortly before trial on the Stefansson Sound

issue, the Court found in a related case that from at least

1903 until 1961 the United States had claimed as inland

waters areas that, like Stefansson Sound, are enclosed by

islands less than ten miles apart. Alabama and Mississippi

Boundary Case, 470 U.S. at 106-07. The Master, however,

reconsiders the Court’s 1985 finding and, despite considera-

ble evidence supporting it, concludes that the Court was

wrong. On Dinkum Sands, the evidence shows that it was

first surveyed as an island, has often been seen above high

water since then, but on occasion submerges. Instead of

recommending that it be considered an island as are similar

features under both the common law and international law,

he rewrites the internationally accepted definition of island

by adding an implicit modifier that is virtually the same as

one its drafters deliberately rejected. As to NPRA, a pre-

statehood federal reservation can defeat a State’s entitle-

ment to submerged lands only if Congress clearly intended

to include submerged lands within the reservation and

affirmatively intended to defeat a new State’s title to those

lands. Utah Division of State Lands v. United States

(“Utah”), 482 U.S. 193, 202 (1987). The Master finds both

requirements met on the basis of speculative inferences and

not direct evidence, an approach contrary to the strong

presumption of State ownership established in Utah and

earlier cases.

Alaska’s admission. See Report at 447-77. The Court has indicated that

subsidiary matters “need not be dealt with separately, as they are

merged in the ultimate question whether . . . the master’s finding as to

the [ultimate question presented] is correct.” New Mexico v. Texas, 275

U.S. 279, 286 (1928), modified as to other issues, 276 U.S. 557 (1928).

Alaska will address the ANWR issues only if the United States excepts

to the Master’s recommendation on the title issue.

The Court should hold that Stefansson Sound is inland

waters under the 10-mile rule and Alaska’s Submerged

Lands Act grant must be measured from the seaward shore

of the islands that enclose it and straight lines connecting

them, that Dinkum Sands is an island, and that title to the

submerged lands within the exterior boundaries of NPRA

passed to Alaska at statehood.

ARGUMENT

I. Stefansson Sound and other areas enclosed by near-

shore fringing islands less than ten miles apart are

inland waters under the 10-mile rule this Court in 1985

found was the United States’ policy from 1903 to 1961,

and Alaska owns the lands underlying them.

The question here is whether near-shore fringing islands

less than ten miles apart enclose inland waters for, “[i]n the

areas actually in dispute, the distances between islands are

in fact all less than ten miles.” Report at 26. This narrow

question seemed resolved when, shortly before the 1985 trial

on this issue, the Court found that the United States had

claimed areas enclosed by islands less than ten miles apart

as inland waters from at least 1903 to 1961:

Prior to its ratification of the Convention [on the

Territorial Sea and Contiguous Zone, discussed below ]

on March 24, 1961, the United States had adopted a

policy of enclosing as inland waters those areas between

the mainland and off-lying islands that were so closely

grouped that no entrance exceeded 10 geographical

miies. This 10-mile rule represented the publicly stated

policy of the United States at least since the time of the

Alaska Boundary Arbitration in 1903.

Alabama and Mississippi Boundary Case, 470 U.S. at 106-

07 (footnotes omitted).

The Master nonetheless reconsiders and rejects the

Court’s 1985 finding as “plainly” unsupported by the evi-

dence. Report at 127.

A. The United States should be precluded from reliti-

gating the Court’s finding that the 10-mile rule was

the United States’ policy.

The Master reconsiders the Court’s 10-mile rule finding

because “Alaska does not seek to invoke collateral estoppel

against the United States.” Report at 53-54. Alaska, how-

ever, did not waive the point, and the United States should

be precluded from relitigating the Court’s 1985 finding that

the 10-mile rule was the United States’ official policy from

1903 to 1961.

In United States v. Mendoza, 464 U.S. 154, 163 (1984),

the Court held that the United States was not estopped from

relitigating an issue that it had lost in the district court but

had not appealed because estopping the United States would

(1) deprive the Court of the benefit of having several courts

consider an issue before certiorari is granted, (2) require the

Solicitor General to revise the policy for determining when

to appeal adverse trial court decisions, and (3) preclude

subsequent administrations from taking a different position

with respect to the particular issue in terms of pursuing or

not pursuing an appeal. Jd. at 160-61.

As Alaska pointed out to the Master, Transcript (“Tr.”)

3523-34 and Alaska’s Reply Brief on Questions 2, 3, 4, 12,

13, and 15 (“ARB”), Appendix A at 35, those policy

considerations do not apply where the United States’ inter-

est in this case is identical to its interest in the contempora-

neous Alabama and Mississippi Boundary Case, and both

cases are under the Court’s original jurisdiction. Estoppel

remains appropriate to preclude the United States from

relitigating the Court’s 1985 finding.

B. The evidence supports the Court’s 1985 finding that

the 10-mile rule was the United States’ policy from

at least 1903 to 1961.

In any event, the evidence fully supports the Court’s 1985

finding. Three examples illustrate the point. First, at the

1903 Alaska Boundary Arbitration, “the United States ex-

plicitly stated that the waters inside the islands were inland

waters because none of the ocean entrances exceeded ten

miles in width.” Alaska Boundary Controversy | (1952), a

Justice Department study prepared for use in litigation

against California, excerpted in Ak. Ex. 85-099 (emphasis in

original). Second, in 1951 the United States followed the

10-mile rule to draw the seaward limits of inland waters

along the Louisiana coast: “[T]he principle followed in

drawing the baseline was that waters enclosed between the

mainland and offlying islands which were so closely grouped

that no entrance exceeded 10 nautical miles in width were

considered inland waters.” 1 Shalowitz, supra note 3, at

161,° cited in support of the Court’s 10-mile rule finding in

the Alabama and Mississippi Boundary Case, 470 U:S. at

106 n. 9. Finally, in 1961 Solicitor General Cox found that

both prior United States’ practice and the Convention on

the Territorial Sea and Contiguous Zone, ratified by the

United States in 1961, 15 U.S.T. (pt. 2) 1607, T.LA.S. N.

5639 (“the Convention”) sanctioned the 10-mile rule,

which he stated as: “Waters enclosed between the mainland

and off-lying islands which are so closely grouped that no

entrance exceeds ten miles in width shall be considered

inland waters.” See Ak. Ex. 85-145 and -159 at 1-3.

Shalowitz concurred. Ak. Ex. 85-150 at 4. The Court has

since incorporated the Convention into the Submerged

*Shalowitz was a technical adviser to the Justice Department in

Submerged Lands Act cases, 1 Shalowitz, supra note 3, at viii, and is

perhaps the foremost commentator relied on by the Court in these cases.

Lands Act. United States v. California (‘California’), 381

U.S. 139, 165 (1965).

These examples of the United States’ policy reflect the

balance of the evidence, as discussed in subsection 3 below.

Under the Court’s prior rulings, the 10-mile rule controls

resolution of this issue.

1. The United States’ maritime delimitation policy

when Alaska became a State controls resolution of

these questions.

For Submerged Lands Act purposes, Alaska’s boundaries

became effective when it joined the Union in 1959. They

thus were fixed by the United States’ policy in 1959 of

enclosing as inland waters areas between the mainland and

fringing islands less than ten miles apart. Using the current

United States’ policy of strictly applying the arcs-of-circles

method would impermissibly contract Alaska’s territory.

Articles 4 and 5 of the Convention authorize, but do not

require, the use of “straight baselines” connecting offshore

islands to delimit inland waters. The Court held in the 1965

California case that California could not use straight base-

lines to claim the areas between the mainland and remote

islands as much as 56 miles off its coast (see 381 U.S. at 143

n. 4) if that would extend the United States’ international

boundaries over the United States’ objection. Jd. at 168. It

cautioned, however, that the United States’ responsibility

for foreign relations must be “accommodated” with the

States’ territorial interests, and “a contraction of a State’s

recognized territory imposed by the Federal Government in

the name of foreign policy would be highly questionable.”

Id. (emphasis added).

In the Louisiana Boundary Case, 394 US. at 73-74 n. 97

(1969), the Court warned that if the United States histori-

cally had used a straight baseline approach it could not

change that policy merely to gain an advantage over the

States in Submerged Lands Act cases. The United States

earlier had conceded that Chandeleur and Breton Sounds,

enclosed by an island fringe like that enclosing Stefansson

Sound, were inland waters, id. at 66-67 n. 87, and “to permit

the National Government to distort [the Convention’s]

principles, in the name of its power over foreign relations”

would be “inequitable.” Jd. at 77. Allowing it “to prevent

recognition of a historic title which may already have

ripened because of past events... would approach an im-

permissible contraction of territory against which [the

Court] cautioned in [the 1965] California case.” Id. at

n. 104 (emphasis added).

The Master acknowledges that the United States has

enclosed waters behind islands as inland waters “on some

occasions,” Report at 130-31, and that he must “consider

how the United States’ pre-Convention policy for waters

inside near-shore barrier islands would have applied in

Alaska.” Id. at 136-37. He denies, however, that Alaska’s

Submerged Lands Act grant was fixed at statehood because

the Court rejected the United States’ similar argument in

the 1965 California case. Id. at 50. The Court’s rejection of

the United States’ argument in that case, however, did not

cause a contraction of a State’s recognized territory, and

does not support the Master’s conclusion that Alaska’s

Submerged Lands Act rights can be determined as of some

time other than the date of statehood.

The prohibition against an impermissible contraction re-

quires that State boundaries be fixed at some point. As

applied to Alaska, the Submerged Lands Act defines

“boundaries” as those in effect at statehood. 43 U.S.C.

§ 1301(b). “[T]he boundaries contemplated by the Sub-

merged Lands Act are those fixed by virtue of Congressional

power to admit new States and to define the extent of their

territory.” Louisiana, 363 U.S. at 51 (1960).

Congress exercised that power by defining Alaska’s

boundaries in terms of the United States’ maritime delimi-

tation policy in 1959. Both the Alaska Constitution and the

Alaska Statehood Act define Alaska to include “appurte-

nant territorial waters” at statehood.°

The Master suggests that, unlike every other State,

Alaska’s Submerged Lands Act grant may not be co-

extensive with those boundaries. In his view, Congress “took

special care to distinguish between the location of the

boundary and the question of title to submerged lands inside

the boundary.” Report at 35 n. 9. The Master is simply

wrong. Senator Cordon proposed what became the descrip-

tion of Alaska in section 2 of the Statehood Act at a 1954

committee hearing during the Second Session of the 83d

Congress, see Alaska Statehood: Hearings on S. 50 before

the Senate Comm. on Interior and Insular Affairs, 83d

Cong., 2d Sess. 222 (1954) (“Senate Hearings’), the same

Congress that enacted the Submerged Lands Act. Senator

Cordon was the manager of the bill that became the

Submerged Lands Act. California, 381 U.S. at 151. He

intended that Alaska’s boundary be co-extensive with “the

three mile limit that this country has contended for always.”

Senate Hearings at 223. Senator Jackson asked him whether

this would convey “everything there is up there, as far as the

overall boundary lines are concerned, to the new State,” and

Senator Cordon assured him that it would. Jd. at 282. The

next year, Alaska’s Delegate Bartlett explained to a House

Committee that the Senate had used the phrase “together

with the territorial waters appurtenant thereto” because “‘it

would be more descriptive in respect to the Submerged

Lands Act” and “tied in better with the Submerged Lands

* Article XII, § 1 of the Alaska Constitution provides in part that

Alaska consists of the Territory of Alaska “together with the territorial

waters appurtenant thereto.” Congress “accepted, ratified, and con-

firmed” the Alaska Constitution in § 1 of the Alaska Statehood Act, and

section 2 states that Alaska consists of the Territory of Alaska “includ-

ing the territorial waters appurtenant thereto.” Pub. L. No. 85-508, 72

Stat. 339 (1958), reprinted as amended in 48 U.S.C. note preceding

§ 21 (1987).

Act.” Hawaii-Alaska Statehood: Hearings on H.R. 2535,

H.R. 2536, and Related Bills before the House Comm. on

Interior and Insular Affairs, 84th Cong., Ist Sess. 114

(1955).

Congress applied the Submerged Lands Act to Alaska in

section 6(m) of the Alaska Statehood Act, which also

provides that Alaska “shall have the same rights as do

existing States thereunder.” Congress, in considering state-

hood for Alaska, recognized that the Submerged Lands Act

“confirms to the existing States title to their tidelands and

submerged lands out to their historic boundaries.” S. Rep.

No. 1028, 83d Cong., 2d Sess. 33 (1954). A different rule

for Alaska as the Master suggests would contravene section

6(m)’s requirement that Alaska have the same Submerged

Lands Act rights as other States.

State boundaries which cannot be unilaterally contracted

by the United States are determined, like Alaska’s, by the

action taken jointly by Congress and the State “to fix the

States’ boundaries against subsequent change without their

consent.” Louisiana, 363 U.S. at 28-29. In terms of imper-

missible contraction, both Alaska’s equal footing doctrine

lands and its Submerged Lands Act grant were fixed at

statehood.

2. The Master overlooked well-established principles

governing consideration of the evidence of the

United States’ policy.

The Master assigned to Alaska the burden of proving that

the Court’s 1985 10-mile rule finding was correct. Report at

52. Whether that assignment was proper or not,’ the

"In making this assignment the Master cites decisions in which the

Court has shown deference to the position taken by the United States.

Report at 51-52. Since the Court has already made the finding reyarding

the 10-mile rule, such deference seems particularly inappropriate here.

One commentator has argued persuasively that such deference to the

United States’ position, afforded because of a perceived connection to

Master’s conclusion that Alaska did not meet the burden

ignores a number of well-established principles governing

consideration of the evidence of the United States’ policy.

For example, he affords undue significance to minor varia-

tions in the way the United States expressed its otherwise

consistent policy over time, ignoring the principle that minor

uncertainties and even contradictions in a nation’s practice

are legally insignificant. As the International Court of Jus-

tice noted with respect to Norway’s historic maritime delim-

itation practice,

too much importance need not be attached to the few

uncertainties or contradictions, real or apparent, which

the United Kingdom Government claims to have dis-

covered in Norwegian practice. They may easily be

understood in the light of the variety of the facts and

conditions prevailing in the long period of time which

has elapsed since 1812, and are not such as to modify

the conclusions reached by the Court.

Fisheries Case (U.K. v. Norway), 1951 LC.J. 116, 138

(emphasis added).

foreign relations, “should play no role in these cases.” Jonathan I.

Charney, Judicial Deference in the Submerged Lands Cases, 7 Vand.

J. Transnat’l L. 383, 454 (1974). Professor Charney is uniquely qualified

to make such an observation. Prior to his academic appointment, the

Justice Department hired him “specifically” to handle Submerged

Lands Act litigation. He served as Chief of the Marine Resources

Section and was either a trial attorney or supervisor in proceedings

before Special Masters in the Louisiana (No. 9, Original) and Maine

(No. 35, Original) cases and lower court proceedings leading to United

States v. Alaska, 422 U.S. 184 (1975). Tr. 3029-30. He was a member

of the United States Public Advisory Committee on the Law of the Sea,

participating in law of the sea negotiations and related matters, and

served as a consultant to the State Department on litigation before the

International Court of Justice. Jd at 3034. The Master accepted

Professor Charney as “an expert in international law and law of the sea,

with particular expertise in those two areas as they relate to United

States foreign policy and interests.” Jd. at 3037.

A policy different from long-established practice must be

shown by “convincing evidence to the contrary”:

In the light of these considerations, and in the absence

of convincing evidence to the contrary, the Court is

bound to hold that the Norwegian authorities applied

their system of delimitation consistently and uninter-

ruptedly from 1869 until the time when the dispute

arose.

Id. (emphasis added).

The Master also failed to follow the more general rule

that a litigant does not have the burden “of establishing

facts peculiarly within the knowledge of his adversary.”

United States v. New York, New Haven & Hartford Rail-

road, 355 U.S. 253, 256 n. 5 (1957). “[A]ll evidence is to

be weighed according to the proof which it was in the power

of one side to have produced, and in the power of the other

to have contradicted.” Mammoth Oil Co. v. United States,

275 U.S. 13, 51 (1927) (citation omitted). The evidence of

the United States’ maritime delimitation policy necessarily

comes primarily from official government documents in its

exclusive possession.

Further, “[t]he production of weak evidence when strong

is available can only lead to the conclusion that the strong

would have been adverse.” Interstate Circuit, Inc. v. United

States, 306 U.S. 208, 226 (1939) (citations omitted). “Si-

lence then becomes evidence of the most convincing charac-

ter.” Id. (citations omitted). The United States produced

only weak evidence to contradict the Court's 10-mile rule

barrier islands less than ten miles apart prior to the 1971

ne ae Samoans the Hine water clan of

areas like Mississippi Sound, see Alabama and Mississippi

Boundary Case, 470 U.S. at 111, and Stefansson Sound.

Indeed, the federal executive explicitly rejected strict appli-

cation of the arcs-of-circles method in international relations

in 1930 and Congress rejected it in the 1953 Submerged

Lands Act. These facts are “«vidence of the most convinc-

ing character” Interstate Circuit, 306 U.S. at 206, that the

arcs-of-circles method was not the United States’ policy at

the time of Alaska’s admission.

The United States, moreover, presented no evidence of a

foreign relations rationale for changing its policy from the

10-mile rule to strict application of the arcs-of-circles

method in 1971. As discussed below, its desire to prevail in

domestic Submerged Lands Act cases was the only reason

for the change.

Under the principles established by both this Court and

the International Court of Justice, the minor variations in

phraseology and application that the Master discusses are

legally insignificant. They do not controvert the Court's

1985 finding that the 10-mile rule was the United States’

consistent policy from at least 1903 until 1961, much less

show that the United States would have applied its current

policy of strictly applying the arcs-of-circles method to

Alaska’s north coast in 1959. The evidence establishes,

moreover, that determining Alaska’s Submerged Lands Act

grant under the arcs-of-circles method would impermissibly

contract Alaska’s recognized territory, a result this Court

condemned in both the 1965 California decision and the

Louisiana Boundary Case.

3. The evidence shows that the Court was correct:

The 10-mile rule was the United States’ policy

from at least 1903 to 1961."

As late as 1964, the United States told the Court that its

pre-Convention policy was to treat areas enclosed by near-

*Because of space limitations, Alaska cannot address every point the

Master makes in his discussion of the United States’ historical policy.

We do, however, point out the consider... evidence supporting the

shore fringing islands less than ten miles apart as straits

leading to inland waters unless they “served as a passageway

between two areas of high seas,” in which case they would

be territorial waters subject to the right of innocent passage:’

Court's 1985 10-mile-rule finding and show that the Master’s criticisms

of that evidence do not controvert that finding.

*In the Louisiana Boundary Case, the Court defined “inland [or

internal] waters,” “territorial sea,” and “high seas,” three terms that

appear frequently in the evidence of the United States’ maritime

Under generally accepted principles of international law, the

navigable sea is divided into three zones, distinguished by the

nature of the control which the contiguous nation can exercise over

them. Nearest to the nation’s shores are its inland, or internal

waters. These are subject to the complete sovereignty of the nation,

pee ttt he Dene mydeco te yt , and the coastal

nation privilege even to exclude foreign vessels altogether.

Beyond the inland waters, and measured from their seaward edge,

is a belt known as the marginal, or territorial, sea. Within it the

coastal nation may exercise extensive control but cannot deny the

right of innocent passage to foreign nations. Outside the territorial

sea are the high seas, which are international waters not subject to

the dominion of any single nation.

394 U.S. at 22-23 (footnotes omitted). A fourth term — “territorial

waters,” also used in the Alaska Statehood Act to describe the new

State — includes both inland waters and the territorial sea. See |

Shalowitz, supra note 3, at 23; Memorandum of the United States in

Response to Request of Special Master of June 29, 1949, (August 1949)

(Ak. Ex. 85-063) at 7, United States v. California, (No. 11 (now

No. 5), Original) (Oct. Term, 1949). Employing these terms, Alaska’s

submerged lands are those underlying territorial waters — i.e., inland or

internal waters and the marginal or territorial sea — while the federal

OCS underlies high seas. As used throughout the evidence of

United States policy discussed herein, the “territorial sea” or “territorial

waters” of the United States extended three miles offshore. In 1988 the

United States extended its territorial sea to 12 miles offshore, a change

in the United States’ international policy that has no legal effect on the

issues in this case. Report at 18 n. 3.

(ce) Straits leading to inland waters — Wherever the

United States has insisted on the right of innocent

passage through straits, denying them the status of

inland waters, the claim has rested on the character of

the strait as a passageway between two areas of high

seas. No such right is claimed as to a strait leading only

to inland waters. Such a strait is treated as a bay.

Examples of this have already been discussed, includ-

ing the straits leading into the Alaskan Archipelago,

straits leading to waters between Cuba and its encir-

cling reefs and keys, and Chandeleur Sound.

Brief for the United States in Answer to California’s Excep-

tions to the Report of the Special Master (“United States

1964 Brief”) (June 1964), (Ak. Ex. 85-016) at 130-31,

United States v. California, (No. 5, Original) (Oct. Term,

1963) (footnote and citations omitted) (emphasis added).

Thus, according to the United States, the key determinant

for inland waters status was whether the United States

insisted on a right of innocent passage.

This simple, functional distinction between inland waters

and territorial sea reconciled two sometimes competing

national interests. The United States has both a “maritime

interest” in freedom of navigation in other countries’ waters

and a “coastal interest” in maintaining exclusive jurisdiction

over its own. Tr. 3039-40 (testimony by Professor Charney).

Preserving a right of innocent passage where required for

international navigation while claiming plenary jurisdiction

where innocent passage is not necessary accommodates both

interests. The United States employed this approach until

1971.

The evidence shows that the United States held this

position for more than 150 years prior to Alaska’s admission,

held it in 1959 when Alaska was admitted to the Union and

its submerged lands title vested, held it in 1965 when the

United States submitted its first brief to this Court following

the Court’s adoption of the Convention for purposes of the

Submerged Lands Act, and publicly renounced it only with

the 1971 publication of the charts noted by the Court in the

Alabama and Mississippi Boundary Case, 470 U.S. at 111.

The 1971 renunciation constituted what the Court warned

against in both the 1965 California and the 1969 Louisiana

cases, an impermissible attempt to contract the States’ —

including Alaska’s — recognized territory in the name of

foreign policy. California, 381 U.S. at 168; Louisiana

Boundary Case, 394 U.S. at 77 n. 104. As the Court there

quoted its Master, Walter F. Armstrong, “[1I]t is difficult to

accept the [renunciation] as entirely extrajudicial in its

motivation.” 470 U.S. at 112 (citations omitted).

a. The United States articulated the 10-mile rule

as its policy at the 1903 Alaska Boundary

Arbitration.

The 1903 Alaska Boundary Arbitration crystallized the

preceding ceniury of the United States’ maritime delimita-

tion policy'® in an explicit 10-mile rule for inland waters

enclosed by islands. The Arbitration determined the base-

line for measuring the 10-league-wide “panhandle” of

Southeast Alaska, a strip (“/isiére”) of mainland constitut-

ing part of Alaska under an 1825 treaty between Russia and

Great Britain. See Report at 61-64. Under the treaty, the

lisiére was to be measured from the “windings of the coast.”

Id. at 62 n. 22. The United States favored the physical

shoreline of the mainland, including all of its sinuousities;

Great Britain argued for the mainland shore but with

straight lines across the mouths of inlets. Jd. at 63. The

United States’ Agent, Hannis Taylor, emphasized the differ-

ence between the political coast line from which a nation’s

‘The Master discusses only three examples of the United States’

maritime delimitation policy leading up to the 1903 Alaska Boundary

Arbitration. Report at 56-61. Appendix A summarizes additional Pre-

1903 evidence that the United States claimed enclosed areas as inland

waters and traces the evolution of the 10-mile distance criterion.

maritime jurisdiction is measured and the physical coast line

from which the 10-league /isiére should be measured:

[T]here are but two possible coast lines known to

international law. One is the physical coast line traced

by the hand of nature, where the salt water touches the

land, which exists for the purpose of boundary: the

second is the political coast line — that invisible thing

superimposed upon the physical coast by the operation

of law, which exists for the purpose of jurisdiction.

Argument of Hannis Taylor, Proceedings of the Alaskan

Boundary Tribunal, S. Doc. No. 162, 58th Cong., 2d Sess.

(1903-04) at 605 (Ak. Ex. 85-018). He explained that the

political coast line ran along the outer edge of the Alexander

Archipelago and that straight lines less than ten miles long

across the water entrances between the islands enclosed

inland waters:

[ 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 sinuousities 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

international 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 outside inlets are 10 miles.

The minute you fix it, all waters back of it, whether

they are waters of 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 interior waters as the interior waters of Loch

Lomond....

Id. at 611.

The key fact was that the islands were less than ten miles

apart: “(T]he United States explicitly stated that the waters

inside the islands were inland waters because none of the

ocean entrances exceeded ten miles in width.” Alaska

Boundary Controversy 1 (1952), a Justice Department

study prepared for use in the California litigation, in Ak. Ex.

85-099 (emphasis in original). The United States claimed

that the Alexander Archipelago was inland waters as late as

1964, see United States 1964 Brief, supra page 18, at 131

(Ak. Ex. 85-016), and first disclaimed inland waters status

for the Alexander Archipelago in 1971. Report at 166-67.

b. The Court recognized that islands enclose in-

land waters shortly after the Alaska Boundary

Arbitration.

Shortly after the Alaska Boundary Arbitration, this Court,

in Louisiana v. Mississippi, 202 U.S. 1 (1906), determined

the boundary between those two States in Lake Borgne and

Mississippi Sound. The Court’s analysis reflected the princi-

ple that areas enclosed by islands are inland waters and not

open sea, consistent with the United States’ position at the

Alaska Boundary Arbitration. The Court described Missis-

sippi Sound as “an enclosed arm of the sea” formed by a

chain of fringing islands. Jd. at 48. The Court held that the

States’ common boundary in Mississippi Sound should be

determined under the “thalweg” doctrine that applies only

to inland waters. As explained in the Alabama and Missis-

sippi Boundary Case,

[u]nder that doctrine, the water boundary between

States is defined as the middle of the deepest or most

navigable channel, as distinguished from the geo-

graphic center or a line midway between the banks.

The Court concluded that the “principle of thalweg is

applicable,” not only to navigable rivers, but also to

“sounds, bays, straits, gulfs, estuaries and other arms of

the sea.” The Court rejected the contention that the

doctrine did not apply in Lake Borgne and Mississippi

Sound because those bodies were “open sea.” The

Court noted that the record showed that Lake Borgne

and the relevant part of Mississippi Sound are not open

sea but “a very shallow arm of the sea, having outside

of the deep water channel an inconsiderable depth.”

The Court clearly treated Mississippi Sound as inland

waters, under the category of “bays wholly within [the

Nation’s] teritory not exceeding two marine leagues in

width at the mouth.”

470 U.S. at 108 (citations omitted).

The case was significant because it put foreign nations on

notice that the United States claimed Mississippi Sound as

inland waters, id., just as the Alaska Boundary Arbitration

gave notice that the United States claimed the Alexander

Archipelago as inland waters. It also alerted foreign nations

that the same inland water rule applied to other “sounds,

bays, straits, gulfs, estuaries and other arms of the sea.” /d.

c. Two events in 1929 are consistent with the 10-

mile rule.

Two events in 1929 leave the Master “in some doubt as to

whether a ten-mile rule for islands, as of 1929, was quite so

well established” as the Court found in 1985. Report at 70.

The first is a July 13, 1929 letter from the State Department

to Norway that is entirely consistent with the 10-mile rule.

It did not describe the United States’ maritime delimitation

policy, saying only that “precise lines [delimiting inland

waters] had not been established.” Report at 68 n. 28. (The

1971 charts noted by the Court in the Alabama and Missis-

sippi Boundary Case, 470 U.S. at 111, apparently were the

first time the United States publicly established such lines. )

The letter did not disavow, contradict, or repudiate the 10-

mile rule, and thus did not signal a policy change. C/

Fisheries Case, 1951 1.C.J. at 138 (“convincing evidence to

the contrary” is required to show a change in prior consis-

tent practice).

The second event is the United States’ response to a

League of Nations’ questionnaire in which it said it would

not tolerate exclusive claims to the Straits of Magellan by

any nation. See Report at 70 and n. 30. In pursuit of its

maritime interest, however, the United States frequently

takes positions with respect to other countries’ jurisdiction

that differ considerably from its position as to its own."

Limitations the United States would impose on other coun-

tries’ jurisdiction thus provide questionable evidence of its

domestic policy.

The few straits used for international navigation like the

Straits of Magellan, moreover, differ from the openings

between near-shore barrier islands less than ten miles apart

that lead only to enclosed areas like Stefansson Sound. The

United States’ maritime interest calls for a right of innocent

passage in the former, but its coastal interest supports inland

waters status for the latter. As with the letter to Norway, the

United States’ response to the League of Nations’ question-

naire rejecting exclusive claims to the Straits of Magellan

‘' Compare Secretary of State Bayard’s June 14, 1886, letter pro-

testing Canadian interference with American fishermen’s “unquestiona-

ble rights to pursue their business at any point not within three marine

miles of the shore,” cited in Thomas Baty, The Three-Mile Limit, 22

Am. J. Int'l L. 503, 525 (1928) (Ak Ex. 85-801), with the United

States’ August 1886 seizure of three British schooners engaged in

pelagic sealing 70, 75, and 115 miles from the nearest land. Christopher

B.V. Meyer, Extent of Jurisdiction in Coastal Waters 305 (1937) (Ak.

Ex. 85-804); 2 Great Britain and the Law of Nations 369 (Appendix,

“The Behring Sea Arbitration, Argument of Her Majesty's Govern-

ment”) (Herbert A. Smith, ed. 1935) (Ak. Ex. 85-034).

does not evidence a change in policy. Fisheries Case, 1951

L.C.J. at 138.

d. The United States in 1930 preserved the 10-mile

rule as a rule for straits leading to inland seas

and rejected the arcs-of-circles method for is-

lands less than ten miles apart.

In 1930, the League of Nations sponsored a Conference

for the Codification of International Law at the Hague. The

United States proposed a comprehensive delimitation

scheme that rejected strict application of the arcs-of-circles

method, preserved the 10-mile rule in terms of a rule for

straits leading to inland seas, and included a new proposal

for assimilating “objectionable pockets” of high seas to the

territorial sea.

The United States proposed that the seaward limit of

territorial waters be determined by the arcs-of-circles

method with arcs swung from the coast of the mainland,

individual islands, and the seaward limit of inland waters.

Where this produced pockets or enclaves of high seas near

islands less than ten miles apart, the pockets or enclaves

would be assimilated to the territorial sea, thus simplifying

the seaward boundary. See Report at 33, Figure 3.6. A bay

would be inland waters if its mouth was less than ten miles

wide and it satisfied a formula based on the area of a semi-

circle. Where both entrances of a strait connecting two areas

of high seas belonged to the same country and were less

than six miles wide, the strait would be territorial waters; if

an entrance exceeded six miles in width, the territorial sea

would extend three miles from each coast.

'2See 3 Acts of the Conference for the Codification of International

Law, Minutes of the Second Committee: Territorial Waters, League of

Nations Doc. C.351(b).M.145(b).1930.V (1930) (“Acts of Confer-

ence”), excerpted in Ak. Ex. 85-001 and summarized in the Report at

69.

Finally, the 10-mile rule for bays would apply where a

Strait was merely a “channel of communication with an

inland sea.” This proposal for straits leading to inland seas is

fully consistent with the Court’s finding that the 10-mile

rule was the United States’ policy from at least 1903 to

1961, and was how the United States often expressed the

rule from this point on.

The greater significance of the 1930 proposals, however,

was that the United States rejected strict application of the

arcs-of-circles method. State Department Geographer

Boggs explained that strictly applying the arcs-of-circles

method produces “objectionable,” “anomalous,” and “unde-

sirable” pockets and enclaves of high seas that must be

climinated for the same reason that inland waters are

enclosed. S. Whittemore Boggs, Delimitation of the Territo-

rial Sea: The Method of Delimitation Proposed by the

Delegation of the United States at the Hague Conference for

the Codification of International Law, 24 Am. J. Int'l L.

541, 552-53 (1930) (Ak. Ex. 85-061). Whether inland

waters or territorial sea, these pockets and enclaves would be

subject to the adjacent nation’s jurisdiction and part of its

sovereign territory. The only distinction was that there is a

right of innocent passage in the territorial sea but not in

inland waters. Louisiana Boundary Case, 394 U.S.:at 22-23.

These pockets and enclaves would never be high seas.

The 1930 assimilation and simplification proposal which

the Master finds at odds with the 10-mile rule, Report at 71-

74, thus was at most one of the legally insignificant “uncer-

tainties or contradictions, real or apparent,” not amounting

to “convincing evidence to the contrary” showing a change

in prior policy. Fisheries Case, 1951 1.C.J. at 138. Indeed,

the United States never applied assimilation and simplifica-

tion to its own waters. Ak. Ex. 85-062 at 10 (answer to

Interrogatory 10). Thus, while it may have been included in

general statements of the United States’ policy, it was never

actually followed in practice.

e. After 1930, the United States continued to fol-

low the 10-mile rule.

The United States’ most significant post-1930 application

of the 10-mile rule came in 1950 with the drawing of the

Chapman line to delimit the coast line of Louisiana:

[T]he United States followed this [10-mile rule] pol-

icy in drawing the Chapman line along the Louisiana

coast following the decision in United States v. Louisi-

ana, 339 U.S. 699 (1950). See 1 Shalowitz,[ supra

note 3], at 161.

Alabama and Mississippi Boundary Case, 470 U.S. at 106 n.

9. At the place cited, Shalowitz explained that “the princi-

ple followed in drawing the [Chapman line] was that waters

enclosed between the mainland and offlying islands which

were so closely grouped that no entrance exceeded 10

nautical miles in width were considered inland waters” —

i.e., the 10-mile rule. The 10-mile rule was used to draw the

Chapman line because it was the United States’ policy in its

international relations:

[The Chapman Line] represented an effort to apply, as

accurately as possible, the principles of delimitation

advocated by the United States in the proceedings

before the Special Master [in the California litigation

then pending }.2/

1/ These principles had been developed in interna-

tional law or had been promulgated by the United

States in its international relations. They involved the

semicircular rule and the 10-mile rule for bays, and the

rule for straits leading to inland waters .... Along the

Louisiana coast all islands are so situated in relation to

the mainland and to each oti.sr as to enclose all waters

landward of the islands as inland waters.... The

openings between the numerous islands along the Loui-

siana coast constitute channels leading to inland

and the rule as to bays becomes applicable. ~og

| Shalowitz, supra note 3, at 108 (citations

omitted). (ci and footnote 6

The Master rejects Shalowitz’s explanation, arguing

(1) his book “was written long after the fact,” Report ary

and was published some twelve years after the Chapman

line was drawn,” id. at 89, (2) an “unqualified” 10-mile rule

would conflict with the United States’ 1930 proposals, id. at

89-93, and (3) the 10-mile rule as described by Shalowitz

is @ significant extension to the 1930 statements of the

rule” for a strait leading to an inland sea, id. at 93. Shalowitz

may well have written the passages soon after the fact,

however, and the timing of his book's publication does not

diminish his explanation. It was “based on personal know|-

edge of the author who assisted the Department of Justice

throughout the pendency of the boundary phases of the

submerged lands cases.” | Shalowitz, supra note 3, at 109 n.

8. The Master's concerns with Shalowitz’s explanation of

the Chapman line do not provide “convincing evidence to

1951 1.CJ. at 138, ge paca

"The Master also suggests that the Uni

nited States, in designating

Chandeleur and Breton Sounds as inland waters, may have relied on an

Sone See we © Ge Saath and the fact that islands cover

more half of the line enclosing them. Report at 86-87, citing a

July 6, 1950 draft memorandum by State Department Geographer

Boggs (Ak. Ex. 85-085). No evidence indicates that the draft memoran-

dum was ever finalized, sent to anyone, or in any way reflected the

United States’ official policy. More significantly, the draft memorandum

did not suggest that these factors were additional criteria for inland

that, because of these f “it

apparent that the waters of these two sounds should be regarded as

inland waters, and not as territorial sea.” Ak. Ex. 85-085 at |. Were they

additional criteria for inland waters status, Boggs surely would have

In the Fisheries Case, both Great Britain and Norway

interpreted the United States’ policy in the same way the

Court and Shalowitz did. Norway contended that the

United States’ system was the same as the Norwegian

straight baseline system, a contention the Master incorrectly

concludes “was not justified.” Report at 95. The 10-mile

rule was a system of baselines, all of which were straight —

literally, a system of straight baselines — albeit with a

10-mile limitation on the length of lines. The United King-

dom argued that the United States’ policy provided no

precedent for straight baselines to enclose as inland waters

areas that were seaward of any islands, citing the United

States’ 10-mile limit for bays and straits leading to inland

waters at both the Alaska Boundary Arbitration and the

1930 Hague conference. Report at 97. The Master discounts

this evidence, maintaining that the United Kingdom did not

claim that every opening between islands less than ten miles

apart would in the United States’ view be a strait leading to

been inland waters.

inland waters. Jd. If the United Kingdom believed the

United States’ practice was to employ the 10-mile rule with

respect to island fringes under only limited conditions,

however, it would have said so in trying to limit Norway's

claim. The United Kingdom's failure to make this argument

demonstrates that it viewed the 10-mile rule described by

the Court and Shalowitz as the United States’ policy.

Secretary of State Webb restated the 10-mile rule for

straits leading to inland seas in his November 13, 1951,

letter submitted in the California litigation (Ak. Ex. 85-094,

reprinted as Appendix D in | Shalowitz, supra note 3, at

354). See Report at 98-103. Webb distinguished between

international straits which connect two areas of high seas

and straits which are merely channels of communication

with inland seas, stating simply that “the rules regarding

bays should apply” to the latter. Ak. Ex. 85-094 at 3-4, |

Shalowitz, supra note 3, at 356. As noted above, the rule for

straits leading to inland seas is the only provision that the

United States applied to its own waters enclosed by fringing

islands less than ten miles apart.'*

Again, all of this evidence is consistent with the Court's

1985 finding that the 10-mile rule was the United States’

policy from at least 1903 to 1961. Nothing provides the

“convincing evidence to the contrary” required to contra-

vene that finding. Fisheries Case, 1951 1.C.J. at 138.

“This explains Webb's omission from the letter of assimilation and

fication to its own waters. Ak. Ex. 85-062 at 10 (answer to Interrogatory

30). Instead, it consistently employed the 10-mile rule in terms of straits

leading to inland seas, as it did in drawing the Chapman line along the

Louisiana coast. As the Master notes, “it would have seemed inconsis-

tent with the Chapman line to represent assimilation as the general

policy.” Report at 101 n. 75. This also answers the Master's concerns, id

at 104-05, regarding Special Master Davis's findings as to the United

States’ policy in his report in the California litigation.

f. Congress in 1953 rejected the arcs-of-circles

method in the Submerged Lands Act.

The Submerged Lands Act defines the coast line from

which the States’ grant is measured as “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.” 43 U.S.C. § 1301(c). In the Senate

floor debate on the Act, Senator Douglas moved to amend

the definition to provide that coast line would be defined as

“the line of ordinary low water along that portion of the

coast of the main continent 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 of ordinary low water around such

island.” 99 Cong. Rec. 4240 (1953) (proposed new lan-

guage emphasized). He feared that the current definition of

“coast line” would permit States to make expansive claims

where they have islands a substantial distance from the

mainland — i.e., “remote islands” such as those off Califor-

nia. /d.; see also California, 381 U.S. at 158 n. 23.

While Congress did not contemplate remote islands giv-

ing States a claim to all of the water areas between the

mainland and the islands, it was concerned that the amend-

ment would require strict application of the arcs-of-circles

method to all islands, including those like the near-shore

fringing islands enclosing Chandeleur Sound. “The effect of

the Douglas amendment would be to make Chandeleur

Sound a part of the high seas, although the Federal Govern-

ment has never contended that Chandeleur Sound was part

of the high seas, and the State government has always

claimed it was inland waters.” 99 Cong. Rec. 4242 (1953)

(comments of Senator Long). “We would have to apply this

amendment instead of the present rule of inland waters

which permits both the Nation and the State to measure

from the outer line along those islands.” Jd. at 4242 (com-

ments of Senator Daniel). Senator Holland explained that

the “coast which is in direct contact with the open sea” in

the definition refers to the seaward shore of the islands:

The point I am making now is that under the definition

in the joint resolution [now in the Act] ... 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 — which would be the open

Gulf of Mexico in that case — and that that line, when

joined to other segments which mark the seaward limits

of inland waters, and other portions of the coast in

contact with the open gulf, would make a contiguous

co-extensive line extending all the way along the gulf

frontage of Louisiana. There would be a failure to

accomplish that result under the amendment of the

Senator from Illinois. So I hope the amendment of the

Senator from Illinois will be rejected.

99 Cong. Rec. 4242 (comments of Senator Holland).

Senator Douglas's amendment, his colleagues belie

would have made the landward shore of nearshore berrier

islands part of the coast line for Submerged Lands Act

purposes. The Senate avoided that result by defeating Sena-

tor Douglas's amendment on a vote of 50 to 26. Id. at 4243.

Another provision of the Submerged Lands Act furnishes

additional evidence of Congress’s intent that the States

would receive title to submerged lands between the main-

land and near-shore barrier islands. Nothing in the Act is to

affect the United States’ rights to “that portion of the

subsoil and seabed of the Continental Shelf /ying seaward

and outside of’ the lands granted to the States under the

Act. 43 U.S.C. § 1302 (emphasis added). The Outer Conti-

nental Shelf Lands Act similarly defines the federal OCS as

all submerged lands lying seaward and outside of the area

of lands beneath navigable waters as defined in [the Sub-

merged Lands Act].” 43 U.S.C. § 1331(a) (emphasis ad-

ded). Enclaves and pockets of submerged lands created by

strict application of the arcs-of-circles method in areas like

Stefansson Sound simply are not “seaward and outside of”

the lands granted to the States under the Submerged Lands

Act. They are “landward and inside of” those lands.

Finally, the Court did not mandate strict application of

the arcs-of-circles method, thereby precluding States from

relying on the United States’ historical practice embodied in

the 10-mile rule, when it adopted the Convention for Sub-

merged Lands Act purposes. If it had, the Court would not

have warned against “impermissible contraction” of a

State’s recognized territory in the name of foreign policy in

both the 1965 California decision and the Louisiana Bound-

ary Case.

g. The United States in the 1950s and 1960s used

island fringes to delimit inland waters for Sub-

merged Lands Act purposes.

The federal executive initially implemented the Sub-

merged Lands Act as Congress intended, treating the sea-

ward shores of fringing islands near the mainland as “in

direct contact with the open sea” and drawing straight lines

connecting such islands to mark the “seaward limits of

inland waters,” the position the United States was taking in

its international relations.'° The United States also consid-

ered water areas enclosed by islands as inland waters for

fisheries purposes in a series of regulations between 1956

'SSee, eg, Ak. Ex. 85-087 (June 23, 1954 memorandum for the

record by D. O’Connor, Assistant Chief, Division of Cadastral Engineer-

ing in the Bureau of Land Management, outlining the theory underlying

the Chapman line); Ak. Ex. 85-107 (December 7, 1954 memorandum

from Mr. Clement, Bureau of Land Management, to Mr. Parriott,

Department of the Interior, stating that Mississippi Sound constituted

inland waters of the State of Alabama); Ak. Ex. 85-126 (June 15, 1956

letter from the Director, Bureau of Land Management, to Assistant

Interior Secretary D’Ewart stating that Alabama's coast line “follows

the outer limit of the barrier islands”’).

and 1960, regulations later characterized by the State De-

partment as “adoption by United States of [the] straight

baseline method in measuring limits of [the } territorial

waters of Alaska.” See Report at 116-18.'* State Depart-

ment Geographer Pearcy, moreover, prepared charts “‘show-

ing straight baselines in southern Alaska, and some use was

made of them by the Coast Guard and the Bureau of

Commercial Fisheries” throughout the 1960s. Id. at 164-65

(footnotes omitted).'”

In the late 1950s, the United States with the approval of

the State Department took the same position in the Louisi-

ana litigation."* Report at 112-13. The Master refuses to

‘*The Master dismisses this evidence on the basis of the Court's

analysis of these regulations in deciding that Cook Iniet in Alaska was

not a historic bay, Report at 121, citing United States v. Alaska, 422

U.S. 184, 198 (1975), and because Interior Secretary Udall wrote

Secretary of State Rusk that the fishery regulations “were not intended

to enlarge or extend the territorial waters of Alaska in a legal or

jurisdictional sense.” See Report at 122 n. 88 and 119 n. 86. Alaska does

not claim that Stefansson Sound is a historic bay, however. If the 10-

mile rule were the United States’ policy as the Court found in 1985,

moreover, the regulations closing areas fringed by near-shore islands as

inland waters did not enlarge or extend the waters of Alaska. They

instead simply implemented the United States’ 10-mile rule policy. This

is far more plausible than construing the regulations as dramatically

stamens wb ne Jertedictional authority of the Laterior Department as the

"The Master dismi this evidence, too, as being of

dismisses tionable

application to the Arctic and inconsis cm as fi t of

Chandeleur Sound. /d. at 165-66. The Pearcy charts nonetheless were

consistent with the United States’ pre-Convention position. As discussed

below, moreover, whatever Pearcy thought about closing Chandeleur

Sound did not prevent the United States from continuing to close it as

inland waters under the Submerged Lands Act.

See, eg., Brief for the United States in Support of Motion f

Judgment (Feb. 1957) (AK. Ex. 85-006) at 128-29, United ns

Louisiana (No. i (now No. 9), Original) (Oct. Term, 1956)

(Chandeleur Sound is inland waters); United States’ Brief in Support of

give the United States’ briefs much weight as evidence of

the delimitation method the United States would have

applied to Alaska’s Arctic coast at statehood, finding them

subject to “three difficulties”: (1) the Court did not deter-

mine the location of the Gulf States’ coast line, leaving it for

later adjudication; (2) the briefs were based on the United

States’ policy in 1953 when the Submerged Lands Act

became law and did not reflect any changes required by the

1958 Convention; and (3) the briefs did not explain the

theory underlying the concession that waters behind islands

in Louisiana, Mississippi, and Alabama were inland waters.

Id. at 113-15. The Master’s “difficulties” aside, the United

States’ briefs show a continuing adherence to the 10-mile

rule described by the Court in the Alabama and Mississippi

ndary Case.

". March 1961, Solicitor General Archibald Cox recited a

number of principles for delimiting the Louisiana coast line

that he derived from “various sources,” including Secretary

of State Webb’s 1951 letter and the Convention, in nearly

identical letters to the Coast and Geodetic Survey (Ak. Ex.

85-145, U.S. Ex. 85-407) and the State Department (Ak.

Ex. 85-159, U.S. Ex. 85-406). Report at 144. He explained

that the principles did not include the Convention's 24-mile

closing line rule for bays, because that was “a departure

from existing law.” Jd. The remaining principles, however,

necessarily reflected prior United States’ policy that was

consistent with the Convention, including the 10-mile rule

for near-shore islands: “Waters enclosed between the main-

Motion for Judgment on Amended Complaint (May 1958) (Ak Ex.

85-007) at 177-78, United States v. Louisiana (No. 11 (now No. 9),

Onginal) (Oct. Term, 1957) (areas between the mainland and barrier

islands offshore Louisiana are inland waters); United States’ Reply Brief

on Motion for Judgment on Amended Complaint (Sept. 1958) (Ak Ex.

85-014) at 43-44, United States v. Louisiana (No. 10 (now No. 9),

Original) (Oct. Term, 1958) (fringing islands enclose inland waters,

citing the Gulf States as examples).

land and off-lying islands which are so closely grouped that

no entrance exceeds ten miles in width shall be considered

inland waters.” Jd.

The Coast and Geodetic Survey's April 18, 1961 response

included a memorandum by Shalowitz in which he con-

curred in Cox’s statement of the 10-mile rule and found it

“in conformity” with a general principle for islands:

The coast line should not depart from the mainland to

embrace offshore islands, except where such islands

either form a portico to the mainland and are so

situated that the waters between them and the main-

land are sufficiently enclosed to constitute inland wa-

ters, or they form an integral part of a land form.

Id. at 145-46 (emphasis added). The emphasized language,

Shalowitz explained, “was the basis for drawing the Chap-

man Line and is in conformity with the concession [that

Chandeleur Sound was inland waters] made by the Govern-

ment in... the Louisiana case.” Jd. at 146 n. 110. He

described the portico concept as an “amplification” of the

ten-mile rule and illustrated it with a figure “which could

equally well be described as showing a fringe of islands.” Jd.

at 147 n. 111.

This evidence shows conclusively that the United States’

historical 10-mile rule policy simply mirrors the straight

baseline provisions of the Convention, albeit with a |0-mile

limitation. Cox’s 10-mile rule, Shalowitz’s portico concept

illustrated as a fringe of islands, and the Convention's

authorization in Article 4.1 of straight baselines where there

is a “fringe of islands” are simply different ways of saying

the same thing.

The Master finds even this evidence insufficient to sup-

port the Court’s 10-mile rule finding. Report at 150. His

reasons, however, do not amount to “convincing evidence to

the contrary” that the Court’s finding was wrong.” The

federal executive's implementation of the Submerged Lands

Act, the United States’ position in litigation under the Act

in this Court, and both Cox’s and Shalowitz’s statements of

principle derived from prior United States’ policy and the

Convention all support the Court’s finding that the 10-mile

rule was the United States policy from at least 1903 to 1961.

h. The United States followed the 10-mile rule

even after the Court adopted the Convention for

Submerged Lands Act purposes.

The United States continued to follow its pre-Convention

10-mile rule policy in its first submission to this Court after

the Court adopted the Convention for Submerged Lands

Act purposes in the 1965 California case.” Motion for

''The Master believes this evidence does not support the Court's 10-

mile rule finding for three reasons: (1) Shalowitz did not close Redfish

Bay as inland waters, id. at 147; (2) a State Department official

cryptically noted that closure of Chandeleur Sound as inland waters

“has been questioned,” id. at 149 and n. 118; and (3) Shalowitz did not

close Caillou Bay as inland waters, id. at 149. Redfish Bay, however, is

not fringed by islands, compare U.S. Ex. 85-416, a chartlet of Redfish

Bay, with 1 Shalowitz, supra note 3, at 162, Figure 25, nor is Caillou

Bay. See Tr. 2950 (testimony of !.R.V. Prescott, an expert on political

geography with a particular emphasis on international maritime bounda-

ries, Tr. 2767 and Ak. Ex. 85-401, and author of The Maritime Political

Boundaries of the World (1985)). A “questioning” of a foreign policy

positi by a State Department employee is hardly renunciation of that

policy.

at when the United States began to follow the Convention

FR yb to determining its policy at the time of Alaska’s

admission in 1959. The United States, however, claimed before the

Master that it “moved to the Convention rules immediately upon

signing” it on September 15, 1958, Report at 134, a claim unequivocally

refuted by evidence showing that the United States began to follow the

Convention upon ratification in 1961. Raymond T. Yingling, Assistant

Legal Adviser at the Department of State, stated in an affidavit the

United States submitted in litigation with Alaska over Yakutat Bay that

Entry of a Supplemental Decree (No. 1).”' In this motion,

the United States acknowledged that some of its claims

were untenable in light of the Court’s adoption of the

Convention for Submerged Lands Act purposes, including

its claims as to artificial jetties, islets and low-tide eleva-

tions, and 10-mile bay closing lines. Jd. at 18-19. Neverthe-

less, the United States continued to “concede Chandeleur

and Breton Sounds as inland water,” Report at 156, a

position entirely consistent with both the United States’ pre-

Convention 10-mile rule policy and the Convention’s

straight baseline provisions.

The Master finds the United States’ lack of explanation

for the continued concession “surprising.” Report at 157. It

is only surprising, however, if the Court’s adoption of the

Convention for Submerged Lands Act purposes required the

United States to change its litigation position to comply with

the Convention. Such changes were required for artificial

jetties, low-tide elevations, and bay closing lines, all of

which the United States explained. Where the United

States’ prior litigation position and the Convention’s rules

the United States “maintained its traditional position” from Alaska’s

admission on January 3, 1959, until the Convention was ratified on

March 24, 1961. See United States v. Alaska, 236 F.Supp. 388, 391-92

(D. Alaska 1964), rev'd on other grounds sub nom. Alaska v. United

States, 353 F.2d 210 (9th Cir. 1965). Following ratification, the Con-

vention expressed the United States’ policy. Jd.; also see Ak. Ex. 85-177

(January 15, 1963 letter from Secretary of State Rusk to Attorney

General Kennedy) at 2 (“in view of the ratification of the Convention by

the President with the advice and consent of the Senate, it must be

regarded as having the approval of this Government and as expressive of

its current policy”).

*'Motion by the United States for Entry of a Supplemental Decree

(No. 1), Proposed Supplemental Decree, and Memorandum in Support

of Motion (Nov. 1965), United States v. Louisiana (No. 9, Original)

(Oct. Term, 1965) (Ak. Ex. 85-167). The Court handed down the

California decision on May 31, 1965. The United States filed this

motion on November 23, 1965.

were the same, as they were for claiming Chandeleur and

Breton Sounds as inland waters, no explanatory comment

was either necessary or appropriate.

In 1962, moreover, the United States and Louisiana had

completed a joint study of the application of the Convention

to the Louisiana coast, a study widely distributed to federal

agencies. See Ak. Exs. 85-173 and -174. The United States,

however, did not produce the study in this proceeding. Since

the study specifically addressed the application of the Con-

vention to the Louisiana coast, this “silence” is “evidence of

the most convincing character,” Interstate Circuit, 306 U.S.

at 226, that the United States’ continued closure of

Chandeleur and Breton Sounds as inland waters was pursu-

ant to Article 4 of the Convention. See New York, New

Haven & Hartford Railroad, 355 U.S. at 256 n. 5; Mam-

moth Oil Company, 275 U.S. at 51.

The United States first signaled a possible change in its

10-mile rule policy three years later in a second motion in

the Louisiana case. Motion for Entry of a Supplemental

Decree (No. 2).” The United States acknowledged claim-

ing waters between the mainland and coastal islands as

inland, citing Chandeleur and Breton Sounds, but claimed

that policy was “at variance with the Convention.” Jd. at 79.

This claim was patently wrong. The United States only a

page earlier had explained that the Convention authorized

closing areas like Chandeleur and Breton Sounds as inland

waters under Article 4. Jd. at 78. Both the United States’

pre-Convention practice and its continuing concession as to

2 Motion by the United States for Entry of a Supplemental Decree as

to the State of Louisiana (No. 2), Proposed Supplemental Decree, and

Memorandum in Support of the Motion of the United States and in

Opposition to the Motion of the State of Louisiana (Jan. 1968) (Ak

Ex. 85-168), United States v. Louisiana (No. 9, Original) (Oct. Term,

1968).

Chandeleur and Breton Sounds were expressly permitted

by — and not “at variance with” — the Convention.

The United States, thus, continued to follow the 10-mile

rule at least through 1965, after the Court had adopted the

Convention for Submerged Lands Act purposes.

i. The United States changed its position in 1971

for reasons unrelated to international relations.

In April 1971, a federal “Baseline Committee” for the

first time marked the seaward limits of inland waters and the

seaward limit of the United States’ territorial sea on nautical

charts. The Committee was instructed to apply the arcs-of-

circles method strictly and “not to take up the political issue

of whether the United States should or should not employ

the method of straight baselines.” U.S. Ex. 85-112 at 1. In

Mississippi, Chandeleur, and Breton Sounds along the Gulf

coast, in the Alexander Archipelago in Southeast Alaska,

and in Stefansson Sound, the charts showed enclaves and

pockets of high seas. Report at 166-67. This was the first

time the United States disclaimed the inland waters status

of those areas. See Alabama and Mississippi Boundary

— 470 U.S. at 111 (discussing Mississippi Sound).

n response to Alaska’s protests, the State Department

considered adopting straight baselines for the Alexander

Archipelago, a return to the United States’ pre-Convention

position. Two successive State Department Legal Advisers

determined that the United States could employ straight

baselines that were “fully consistent with the most conserva-

tive possible reading of Article 4” of the Convention and

would have no adverse effect on the United States’ interna-

tional relations. Ak. Ex. 85-276 (January 16, 1973 memo-

randum from Legal Adviser Brower to various federal

officials ) at 2. One adviser took an even stronger position:

“We do not believe the use of such a system will have a

negative impact on our Law-of-the-Sea negotiati iti

nor do we believe a continued refusal to ae oie

ustifiable in li t of the fact that it is so clearly appropriate

“ ts ae Ak. Ex. 85-280 (August 30, 1972 memo-

randum from Legal Adviser Stevenson to various federal

officials) at 12 (emphasis added).

Concerns over the domestic implications such a move

might have, however, prompted the State Department to

condition its non-opposition on @ waiver by Alaska of

Submerged Lands Act claims it otherwise might make if the

United States adopted a system of straight baselines.

Ak. Ex. 85-217 at 1, 3. Because of these domestic concerns,

the matter was referred to the Office of Management and

Budget, Ak. Ex. 85-290, and no further action was taken.

Cc. Stefansson Sound and other areas enclosed by is-

lands on Alaska’s north coast are inland waters.

This Court correctly determined in the Alabama and

Mississippi Boundary Case that the 10-mile rule was the

United States’ policy from at least 1903 to 1961. [I]n the

Fisheries Case, the International Court of Justice ruled that

the consistent and prolonged application of the Norwegian

system of delimiting inland waters, combined with the

general toleration of foreign states, gave rise to a historic

right to apply the system.” Alabama and Mississippi Bound-

ary Case, 470 U.S. at 107 n. 10 (emphasis added). Alaska

accordingly is entitled to apply the 10-mile rule to delimit its

inland waters and its Submerged Lands Act grant. —

The Master argues, however, that “fairness” might re-

quire a recommendation against Alaska, citing the Florida

Keys, Nantucket Sound, and Caillou Bay. Report at 172-74,

Florida, however, received “a three-marine-league [/.e., nine

mile] belt of land” off its Gulf coast, United States v.

Florida, 363 U.S. 121, 129 (1960). It stipulated with the

United States that “the narrow waters within the lower

Florida Keys, the —— and - bee Bye othe

enerally territorial seas not

Scamarle had no practical effect on Florida's Submerged

Lands Act grant.” The 10-mile rule was a rule for fringing

islands, moreover, and did not apply to other island groups.

Massachusetts relied solely on a historic waters argument

and did not argue that failure to use the 10-mile rule

impermissibly contracted its recognized territory. As dis-

cussed above, the islands forming Caillou Bay do not fringe

the coast. In any event, Caillou Bay bears no resemblance to

Stefansson Sound and provides no support for denying

application of the 10-mile rule in Alaska on the basis of

“fairness.” All of the States with coast lines that fit the

10-mile rule — Alabama, Louisiana, and Mississippi —

have not had their boundaries redrawn to comport with the

United States’ current position, strict application of the arcs-

of-circles method. A different result for Alaska, as recom-

mended by the Master, would be both unfair and violate the

requirement in section 6(m) of the Alaska Statehood Act

that Alaska “shall have the same rights” as other States

under the Submerged Lands Act.

Finally, the Master suggests that Stefansson Sound might

have been considered an international strait, and not an

inland sea, because the Coast Pilot says “[v jessels following

by passing inside the islands by way of one of the deeper

entrances.” Report at 139-40. Nothing in the record, how-

ever, indicates any use of Stefansson Sound for international

navigation. In contrast, Special Master Walter E. Hoffman

found that neither Vineyard Sound nor Nantucket Sound

® See Coast & Geodetic Charts C. & G. S. 1249-53, 1351, reprinted in

Report of Albert B. Maris, Special Master (Sept. 1971), United States

v. Florida (No. 52, Original) (Oct. Term, 1973) at 92-103, reprinted in

The Reports of the Special Masters of the United States Supreme Court

in the Submerged Lands Cases 1949-1987 (Michael W. Reed,

G. Thomas Koester and John Briscoe, eds., 1991), at 562-73, showing

that all of those “narrow waters” are within the three mile arcs

delimiting the territorial sea and the lands underlying them thus were

included in the Submerged Lands Act grant to Florida

was an international strait despite some evidence of interna-

tional shipping. Report of the Special Master at 67-68,

United States v. Maine (Massachusetts Boundary Case),

(No. 35, Original) (Oct. Term, 1984), reprinted in Reed, et

Boundary Case as “an intracoastal waterway of commercial

and strategic importance to the United States” but “of little

significance to foreign nations.” 470 U.S. at 102 (see id. at

102-05 as to its usefulness and importance).

The Court's 1985 finding that the 10-mile rule was the

United States’ position from at least 1903 until 1961 thus

compels a ruling in Alaska’s favor. The 10-mile rule was the

United States’ policy on January 3, 1959, when Alaska

joined the Union and its title under the equal footing

decision, 381 U.S. at 168, and the 1969 Louisiana Boundary

Case. 394 U.S. at 73-74 n. 97. It would contradict Con-

Submerged Lands Act cases. See Alabama and Mississippi

Boundary Case, 470 US. at 112. For these reasons the

Court should reject the Master’s recommendation that

Alaska’s Submerged Lands Act grant be determined by

that the 10-mile rule for islands applies.

IL. Dinkum Sands is an island under the Convention and

is part of Alaska’s coast line for Submerged Lands Act

purposes.

tide.”

The United States Coast and Geodetic Survey first sur-

veyed Dinkum Sands in 1949-50. Report at 230-31. The

Ar a trvevors reported that the feature “bares three feet

at mean high »" id. at 231, making it unqualifiedly an

island. Official United States’ nautical charts showed it as

; 2

Aaron L. Shalowitz, Shore and Boundaries (“2 Shalowitz”) 365, n. 10

(U.S. Dept. of Commerce Pub. 10-1, 1964).

United States retreated from this position only after this

case was filed,” and despite the Baseline Committee’s

continued treatment of Dinkum Sands as an island.

The 1949 survey remains the only “basic hydrographic

survey” of the area. Tr. 496-497. The United States

concedes that Dinkum Sands was above mean high water

then — i.e., it was an island. Report at 244. Since then, it

has been observed many times both above water (id. at 233)

and above mean high water (id. at 276-77, 282), although it

occasionally has been observed submerged, the fact that

gives rise to this dispute.”

The Master acknowledges that the Convention does not

require that an island be permanently above high tide. /d. at

300. Without support in law or “legislative history,” how-

ever, he finds that the Convention’s definition of an island

nonetheless contains an “implicit modifier” at least as strong

as “ ‘generally,’ ‘normally,’ or ‘usually.’ Jd. at 302. Unsure

how much of the time Dinkum Sands is below high tide, he

cannot conclude that it is “generally, usually or normally”

above high tide and therefore recommends that it be found

not an island. Jd. at 310.

Dinkum Sands is no less an island, however, than the far

more dynamic “mudlumps” off Louisiana’s coast. This

*The United States filed the case in May 1979, and proposed not

using Dinkum Sands to delimit Alaska’s submerged lands in June, 1979.

Report at 233.

*Shalowitz describes a basic hydrographic survey in 2 Shalowitz,

supra note 24, at 240, quoted in the Master's Report at 231 n. 6.

"It is umpossible to determine whether Dinkum Sands is an island by

simply observing whether it is above or below water. The tidal range in

the Beaufort Sea is only six inches, id at 236, and much larger changes

in water level are caused by non-tidal seasonal influences and weather.

Id. at 236-239 and 246. During the open water months (July through

September, when observations the Master relies on “primarily” were

made), sea level can be 1.5 feet higher than at other times. Jd. at 236-39,

246.

Court and others have consistently treated the mudlumps as

islands despite their episodic submergence or outright disap-

pearance. Dinkum Sands must be similarly treated. It is a

permanent feature, id. at 288; since 1949 it has been

observed above high tide and sometimes below, id. at 307-

08; and the United States considered it an island for Sub-

merged Lands Act purposes until 1979 and for purposes of

its international relations until] 1983.

Alaska makes alternative submissions. First, the Conven-

tion’s definition of island contains no implicit modifier, and

both prior law and practice establish that an island that is

occasionally submerged is no less an island. Alternatively,

Dinkum Sands is an island except when it is below high tide,

even though it may be difficult to determine when that is.

A. A feature retaias its status as an island even if it is

sometimes submerged.

Although more dynamic than Dinkum Sands — to the

point of ephemeralness—the alluvial islands and

mudiumps off the mouth of the Mississippi River are

strikingly similar to Dinkum Sands. They move, disappear,

and reappear.” Since The Anna, 165 E.R. 809 (1805), they

*Mr. Miller, Umited States delegate to the 1930 Hague Codification

Conference, described them as “moving islands off the mouth of the

Mississippi.” 3 Acts of Conference, supra note 11, at 147 (AK. Ex. 85-

001). B. A. Hardey, Chairman of the Louisiana Mineral Board, testified

at a Submerged Lands Act hearing that “[s]ome of the islands disap-

pear and bob up somewhere else sometimes.” Joint Hearings on S. 1988,

80th Cong., 2d Sess. 111-112 (1948). John L. Madden, Louisiana

Special Agsistant Attorney General, explained that “[o}ver broad and

far-reaching spaces offcoast, our marginal waters are astoundingly shal-

low — so shallow, in fact, that islands therein appear to move in some

mysterious manner, emerging here and sinking there, and being Jost

until they are discovered as forming a part of the coast or other islands of

greater permanence.” /d at 384-385. Solicitor General Cox “described

have consistently been treated as islands and used to delimit

both the nation’s maritime boundaries and Louisiana’s Sub-

merged Lands Act grant.

The Anna presented the issue whether a British privateer

had captured the vessel on the high seas or within the

United States’ maritime boundaries. Resolution of the issue

turned on whether the boundaries were reckoned from

certain mudlumps off the mouth of the Mississippi River.

Captor’s counsel argued that the mudlumps were not United

States’ territory because they had “no line of coast” and

were merely “temporary deposits,” that the court should not

nary qualities of territory,” that territory “should form a

visible part of the country to which they are ascribed” so

neutrals could see them, and that they should but did not

afford a base for defending the nation. Jd. at 811-12 (em-

phasis deleted). The court rejected the argument:

[T])here are a number of little mud islands composed

of earth and trees drifted down by the river which form

a kind of portico to the mainland. It is contended that

these are not to be considered as any part of the

territory of America, that they are a sort of “ no man's

they are composed of earth or solid rock, will not vary

the right of dominion, for the right of dominion does

not depend upon the texture of the soil.

Id. at 815 (footnote omitted).

Since The Anna, this nation has uniformly treated these

ephemeral features as islands for various purposes,” includ-

ing using them to delimit its maritime boundaries in interna-

tional relations and Louisiana's Submerged Lands Act

grant. For example, the United States’ delegate to the 1930

Hague Codification Conference observed that any definition

of island would have to accommodate a wide variety of

circumstances, including “the moving islands at the mouth

of the Mississippi.” 3 Acts of Conference, supra note 11, at

146-47 (AK. Ex. 85-001). In 1963, “Solicitor General

Boundary Case, 394 US. at 64 n. 84. The Court equated the

mudlumps with islands when it stated that “every...

islands. Report of Special Master Walter P. Armstrong, Jr. (July 31,

1974) at 11-12, United States v. Louisiana (No. 9, Original) (Oct.

Term, 1974), reprinted in Reed, et al, supra note 23, at 173 (discussing

Exec. ‘Order No. 675 (i907) and Exec. Order 682 (1907)).

Five years after the decision in the Louisiana Boundary

Case, Special Master Armstrong recommended, and the

Court agreed, that Louisiana's coast line should be mea-

sured from the mudlumps. Report at 292.

Further, both English and United States common law

have accorded island status to other features that periodi-

cally disappear. For centuries, the English rule has been that

land that submerges retains its character unless it is sub-

merged for so long that it is no longer identifiable if it

eventually reappears. Sir Matthew Hale's” description has

often been quoted:

If a subject hath land adjoining the sea, and the

violence of the sea swallow it up, but so that yet there

be reasonable marks to continue the notice of it; or

though the marks be defaced; yet if by situation and

extent of quantity, and bounding upon the firm land,

the same can be known, though the sea leave this land

again, or it be by art or industry regained, the subject

doth not lose his propriety ....

Hale, De Jure Maris (Francis Hargrave, ed. 1787), re-

printed in Stuart A. Moore, A History of the Foreshore 381

(1888). How long the land is submerged is irrelevant so long

as it is not permanent:

[A]ccordingly it was held by Cooke and Foster, M. 7

Jac. C.B. though the inundation continue forty years.

But if it be freely left again by the reflux and recess of

the sea, the owner may have his land as before, if he

can make it out where and what it was; for he cannot

lose his propriety of the soil, though it be for a time

Described by Shalowitz as “one of the foremost jurists of 17th

century England.” | Shalowitz, supra note 3, at 91.

& Sa.

sme 4

become part of the sea, and within the admiral jurisdic-

tion while it so continues.

Id. at 381, 383.

State courts also have employed Lord Hale’s rule. The

Supreme Court of Illinois found that a landowner did not

lose title to an island, totally submerged for a considerable

length of time, when it reappeared and was identifiable by its

original description. Randolph v. Hinck, 277 Ill. 11, 18, 115

N.E. 182, 184 (1917). Similarly, the court in Mulry v.

Norton, 100 N.Y. 424, 434, 3 N.E. 581, 585 (1885), stated

that submergence does not affect title unless it is “followed

by such a lapse of time as will preclude the identity of the

property from being established upon its reliction,” and the

owners of beach property did not lose their title when the

beach submerged due to storms and tides and subsequently

reformed. Jd. at 436; 3 N.E. at 586. In Baumhart v.

McClure, 21 Ohio App. 491, 153 N.E. 211 (1926), the court

found that a lot along Lake Erie that had been submerged

for forty or fifty years still belonged, upon reappearance, to

the original owner. Jd. at 494; 153 N.E. at 212. See also City

of Chicago v. Ward, 169 Ill. 392, 407-408; 48 N.E. 927, 931-

32 (1897) (owner retained title to lands submerged and

subsequently reclaimed in Lake Michigan).

Federal courts also follow the common law tule. In

Widdicombe v. Rosemiller, 118 F.Cas. 295, 299-300

(C.C.W.D. Mo. 1902) (Nos. 2, 253-55), the court invoked

“the fundamental doctrine laid down by Sir Matthew Hale’s

De Jure Maris” in holding that the United States’ title to an

island was not lost by erosion or submergence during a

period of high water of the Missouri River. Hammonds v.

Ingram Industries, Inc., 716 F.2d 365, 369 (6th Cir. 1983),

reaffirmed the rule “that an island’s submergence effects its

—- only if lasting for an extended period of

me.

Finally, international law today affords continuing coast

line status, in the context of straight baselines, to unstable

islands even if the islands disappear altogether. Article 7.2 of

the 1982 Law of the Sea Convention provides that base

points for drawing straight baselines “may be selected along

the furthest seaward extent of the low-water line and,

notwithstanding subsequent regression of the low-water line,

the straight baselines shall remain effective until changed by

the coastal State... .””!

Notwithstanding these precedents, the United States ar-

gued that Article 10 implicitly requires that an island be

“permanently” above high tide. The Master rejects this

argument, noting that the word “permanently” had modified

“above water at high tide” in a draft of the Convention's

definition of an island and was deleted at the United States’

urging. Report at 299-300. The Master nevertheless finds

that Article 10 contains an “implicit modifier that is at least

as strong as ‘generally,’ ‘normally,’ or ‘usually’.” Report at

302. As the Court wrote in discussing the United States’

argument that a spoil bank should not be part of the coast

because “it is not ‘purposeful or useful’ and is likely to be

‘short-lived’,” “[i]t suffices to say the Convention contains

no such criteria.” Louisiana Boundary Case, 394 U.S. at 40-

41, n. 48. Even the United States’ expert on islands in

international law has written that an island need not be

permanently above high tide, citing The Anna among other

authorities. Clive Symmons, The Maritime Zones of Islands

in International Law 23 (1979).

United Nations, The Law of the Sea, Official Text of the United

Nations Convention on the Law of the Sea 4 (1983). This “deltaic

baseline” provision of the 1982 Convention is among those recognized

by the United States, while refusing to ratify the Convention, as

reflecting customary international law. See Statement on United States

Ocean Policy, | Pub. Papers of the President 378 (Ronald Reagan)

(Mar. 10, 1983), 3 C.F.R. 22 (1983).

Figure 2. Admiral Nygren's 1949 photograph of Dinkum Sands, AK 84A-204, showing a 30-

foot high survey target supported by guy wires anchored to 55-gallon drums filled with sand and

gravel. Tr. 1330-32

The Master's finding of an “implicit modifier” in Arti-

cle 10 is unsupported by case law or the preparatory work of

the Convention to which the Court has looked in interpret-

ing equivocal provisions of the Convention. See, ¢.g., Louisi-

ana Boundary Case, 394 U.S. at 43-47, nn. 52-63. Article 10

B. Dinkum Sands, a permanent ally ial formation that

is far more stable than the Mississippi mudlumps, is

an island under the Convention.

As discussed above, an island retains its island status even

if sometimes submerged. While the feature is sometimes

submerged, the United States concedes that Dinkum Sands

has not disappeared. Report at 288. In fact the evidence

shows that Dinkum Sands is far more stable than the

Mississippi mudlumps.

Dinkum Sands was first definitively charted in 1949 when

a United States Coast and Geodetic Survey party reported it

had discovered an island lying between Cross Island and

Narwhal Island in the Alaskan Beaufort Sea. Report at 231.

The official record of the survey, or “smooth sheet,” states

that Dinkum Sands “bares three feet at mean high water.”

Id. Admiral Harley Nygren, a member of the survey party,

described the 1949 survey of the Beaufort Sea and the

discovery of Dinkum Sands, and produced a photographic

slide he had taken of Dinkum Sands several weeks after its

first sighting by his party. Ak. Ex. 84A-204 (reproduced

opposite); see Tr. 1330-32 and 1362-63. At that time, the

island was “3 feet or 4 feet above the water level.” Tr. at

1330.

The 1949 survey of the Beaufort Sea produced, insofar as

relevant here, two nautical charts of the Dinkum Sands area.

Report at 232. These were denominated Coast and Geodetic

Survey Charts Nos. 9472 and 9473 (today redesignated as

16061 and 16046). Both charts as originally published

depicted Dinkum Sands as an island, Report at 232, consis-

tent with the survey's report that it “bares three feet at

MHW.” (Other maps also showed Dinkum Sands as an

island, including maps prepared by the United States Geo-

logical Survey and the Army Mapping Service. Report at

243 and n. 15.)

That depiction changed as a result of a 1955 report from

the Merrick, a Navy vessel that passed through the area and

cryptically reported “Dinkum Sands — survey target and

island not there.” Report at 232 and 242; see Ak. Ex.

84A-330(a) at 9. The Merrick got no closer to Dinkum

Sands than three miles, however, and “observations were

impeded by dangerous ice conditions and a strong southwest

wind tending to raise the sea level significantly.” Report at

242. To avoid icebergs bearing down on it, the Merrick had

to weigh anchor several times and take evasive action in

poor visibility. Ak. Ex. 84A-330(b) and (c); Tr. 1521-40,

1666-1700. Since strong winds can elevate water levels

“significantly,” Report at 242, the Merrick easily could have

missed a temporarily submerged Dinkum Sands, even if it

was well above mean high water.

Although the 1949 survey remains the only “basic survey”

of the area, Report at 231 and n. 6, the cryptic 1955 Merrick

report prompted the Coast and Geodetic Survey — which in

charting waters chooses to err on the side of navigational

safety, see, e.g., 2 Shalowitz, supra note 24, at 89, 248 — to

change its charts. Subsequent editions of the charts “con-

servatively” depicted Dinkum Sands as a low-tide elevation

rather than an island. Report at 243. As a low-tide elevation,

Ak. Ex. 84A-208 (Baseline Committee minutes for Janu-

ary 12, 1983, reflecting the Committee's elimination of the

arcs of territorial sea generated Ly using Dinkum Sands as a

basepoint).

Consistent with the Baseline Committee's approach, fed-

Sands as belonging to Alaska. Report at 232-33. Erk

Reimnitz, an Interior Department staffer who was the

United States’ principal witness at the 1984 trial and had

erroneously claimed that the 1949 survey was off by three

feet,” urged that Dinkum Sands not be treated as an island.

Higher officials ultimately adopted his view, but not until

June of 1979 (id. at 233), after this case had been filed.

In light of the legal authorities, the Baseline Committee's

treatment of Dinkum Sands as an island and thus part of

Alaska’s coast line was correct. The Master elects not to

treat it as an island because, applying his “implicitly modi-

"See Erk Reimnitz, et al., U.S. Dept. of the Interior Geological

— Dinkum Sands (Open File Report 80-360) (U.S. Ex. 84A-

fied” definition of “island” to observations made “primarily”

during the brief open-water seasons of 1981 through 1983,

Report at 308, he cannot find that it is above water at high

tide “generally,” “normally,” or “usually.” Report at 309.

Again, it should suffice that “the Convention contains no

such criteria.” Louisiana Boundary Case, 394 US. at 41

n. 48.

The Master's findings establish that Dinkum Sands has

repeatedly deemed to be islands. It is a permanent feature,

as the United States concedes. Report at 288. The few

occasions it has been observed below high tide have gener-

ally been at the end of the open water period in late summer,

id. at 309 and n. 66, just before it rebuilds prior to the

autumn freeze-up. Jd. at 286. The only “basic hydrographic

survey” of the area found Dinkum Sands an island in 1949,

a determination the United States concedes was correct. /d.

at 242, 244, and 308. And the United States used it to

delimit the territorial sea and Alaska’s Submerged Lands

Act grant until long after this litigation was begun. In light

of this evidence, the handful of occasions on which Dinkum

Sands was submerged are insufficient to change its status as

an island.

C. Alternatively, Dinkum Sands is an island except

when it is below high tide.

At the very least, Dinkum Sands should be deemed an

island except when it is below the level of mean high water.

The Master is uncomfortable with this notion, although he

recognizes that it is consistent with the concept that the

“normal baseline changes when the shoreline changes.”

Report at 305. According to the Master, “Article 10 does

not demand an interpretation under which islands may

frequently come and go.” Jd. He dismisses the argument

summarily, without so much as a glance at the common law,

asserting that it would require difficult monitoring and “go

against the Court's strong emphasis on definiteness and

eenly graeme eaten Go Geteneages ant Aen" as at

(parties may resolve such problems through legi ion oF

Lands Act purposes. See United States v. California, 381

U.S. at 167. Indeed, in United States v. Louisiana (Texas

Boundary Case), 394 U.S. 1, 5 (1969), the Court expressed

its view that an ambulatory coast line was a necessary

consequence of its adoption of the Convention's definitions

for Submerged Lands Act purposes because the Convention

defines coast line as “the modern, ambulatory coastline.” /d.

This concept became more deeply embedded in the

Submerged Lands Act in the Louisiana Boundary Case, 394

U.S. at 32-35. There, Louisiana raised concerns identical to

the Master’s with regard to defining inland waters along

Louisiana’s shifting, changeable coast line. Louisiana argued

that a fixed “ ‘Inland Water Line’” was the only way to

fulfill the “ ‘requirements of definiteness and stability which

should attend any congressional grant of property rights

belonging to the United States’” as required by this Court

in the 1965 California case. Louisiana Boundary Case, 394

The Master also asserts that “navigational interests” favor using

“reliably visible basepoints,” and that this provides justification for why

a feature that “frequently slumps below the high-water datum . . . should

not be treated as an island.” Report at 304. Under the Convention,

however, low-tide elevations within the territorial sea are used as

basepoints for measuring the territorial sea. See Article 11. In light of its

repeated sightings above mean high water, Dinkum Sands is more

“reliably visible” than the average low-tide elevation.

U.S. at 32-33. The Court rejected Louisiana’s concerns, and

with them the notion that the Court was free “to adopt the

definition which best solved the problems of ... the pecu-

liarities of the highly unstable Louisiana shore.” Jd. at 33.

At the least, then, Dinkum Sands is an island except

when it is below high tide. To deny Alaska that much, when

Louisiana received permanent property rights on the basis of

the ephemeral Mississippi mudlumps, would contravene

section 6(m) of the Alaska Statehood Act which catitles

Alaska to the same rights under the Submerged Lands Act

as other States.

The Court accordingly should reject the Master’s recom-

mendation with respect to Dinkum Sands and decree that it

is an island to be used as part of Alaska’s coast line under

the Submerged Lands Act. Alternatively, it is an island

except when it is below water at high tide.

Ill. The submerged lands within the exterior boundaries

of NPRA passed to Alaska at statehood.

Alaska excepts to the Master’s recommended finding that

the United States retained title to lands underlying tidally

influenced waters inside the boundary of the National Petro-

leum Reserve-Alaska (“NPRA”) and, as a result, defeated

Alaska’s title to those lands at statehood.

Whether a pre-statehood federal reservation defeated

State title to submerged lands and retained title in the

United States was addressed in Utah Division of State

Lands v. United States (“Utah”), 482 U.S. 193 (1987). In

Utah, the Court summarized the teachings of prior equa!

footing doctrine cases: (1) the United States holds lands

under navigable waters in Territories “ ‘in trust’” for future

States; (2) while the United States can defeat a new State’s

title by a pre-statehood conveyance to a third party, it will

do so “only ‘in case of some international duty or public

exigency’”; and (3) the Court will not “lightly infer a

congressional intent to defeat a State’s title” and will “begin

with a strong presumption against conveyance” that will not

be overcome “unless the intention was definitely declared or

otherwise made very plain, or was rendered in clear and

especial words, or unless the claim confirmed in terms

embraces the land under the waters ....” Jd. at 196-98

(citations omitted) (emphasis ix original).

The Court has found only once that Congress intended to

convey submerged lands within a territory, a “singular ex-

ception” to the rule of State ownership which “depended ‘on

very peculiar circumstances.’ ” /d. at 198 (citation omitted).

Unlike a pre-statehood conveyance that necessarily defeats

State title, moreover, Congress may not intend a pre-

statehood reservation to have that effect as it may still hold

the lands “for the ultimate benefit of future States” and

“control, develop, and use the waters for its own purposes”

even if the land later passes to the State. /d. at 202 (citation

omitted). As a result, the Court will not find that a pic-

statehood federal reservation defeats a new State’s title

unless the United States establishes both “that Congress

clearly intended to include land under navigable waters

within the federal reservation” and “that Congress affirma-

tively intended to defeat the future State's title to such

land.”** Jd. (emphasis added). Under this stringent two-

“The Master finds that there is “a less demanding standard” for

showing that a pre-statehood withdrawal and reservation of lands under-

lying the territorial sea defeated State title under the Submerged Lands

Act than the Utah standard for showing that a pre-s:atehood withdrawal

and reservation of lands underlying inland waters defeated State title

under the equal footing doctrine. Report at 394. Congress intended,

however, that Pollard and its progeny apply equally to both inland

waters and the marginal sea. See S. Rep. No. 133, 83d Cong., Ist Sess.

6-8 (1953), reprinted in 2 1953 U.S. Code Cong. & Admin. News 1474;

H.R. Rep. No. 695, 82d Cong., Ist Sess. 5 (1951), reprinted in 2 1953

U.S. Code Cong. & Admin. News 1395 (“1951 House Report”),

incorporated in H.R. Rep. No. 215, 83d Cong., Ist Sess. 1 (1953),

reprinted in 2 1953 U.S. Code Cong. & Admin. News 1385; H.R. Rep.

No. 1778, 80th Cong., 2d Sess. 6-9, 14-16 (1948), reprinted in 2 1953

pronged test, Congress did not defeat Alaska’s title to the

submerged lands within the NPRA’s boundaries.

A. Congress did not clearly intend to include sub-

merged lands in NPRA and did not clearly intend to

defeat Alaska’s title to them.

1. The Pickett Act did not authorize the federal

executive to reserve the submerged lands in

NPRA.

The Alaska Right-of-Way Act of May 14, 1898, ch. 299,

30 Stat. 409 (current version primarily at 43 U.S.C. §§ 942-

1 -942-9 (1988)), limited any “implied authority” the

federal executive might have had to withdraw submerged

lands. See Report at 406 n. 45. This Act codified for Alaska

the principle that the United States holds the beds of

navigable waters in territories “in trust” for future States. Jd.

The Master nonetheless concludes that Congress impliedly

delegated to the federal executive authority to reserve

Alaska’s equal footing doctrine lands within NPRA in the

Pickett Act of June 25, 1910, ch. 421, § 1, 36 Stat. 847

(formerly codified at 43 U.S.C. §§ 141-42 (1970); repealed

in part 1976; current version at 43 U.S.C. § 142 (1986) ). Jd.

at 413. With “no direct evidence that thought was given to

withdrawal of tidelands and submerged lands,” the Master

believes the Pickett Act must be construed to authorize

such withdrawals by implication because some purposes for

which it was enacted “may have been thought at the time to

require them.” Jd.

Both the language of the Act and the circumstances at

the time of its enactment, however, compel finding that

U.S. Code Cong. & Admin. News 1415 incorporated in the 1951 House

Report at 6. The Submerged Lands Act excepts from the statutory grant

to the States “all lands expressly retained by . . . the United States when

the State entered the Union,” 43 U.S.C. § 1313(a) (emphasis added), a

statutory standard that is at least as strong as that for inland waters

under Pollard and its progeny.

Congress did not intend the Pickett Act to authorize reser-

vation of submerged lands. Congress limited the authority

delegated to reservation of “public lands,” 43 U.S.C.

§ 141 — i.e., lands subject to sale or disposal under general

laws unless another meaning is clear.’° Tidelands and inland

navigable waterways are not subject to sale or other disposal

under general laws and therefore are not “public lands.”*®

While the definition of “public lands” is not absolute in

every context, the general definition is presumptively in-

tended unless a different intent is clearly expressed.’’ The

Pickett Act, moreover, grants authority to withdraw public

lands “from settlement, location, sale, or entry” under the

public land laws and reserve “the same” for public purposes.

43 U.S.C. § 141. Submerged lands, however, “were already

exempt from sale, entry, settlement, or occupation under the

general land laws.” Utah, 482 U.S. at 203 (emphasis added)

and cases cited.

The Master rejects application of the Utah analysis of

“public lands” for two reasons. First, he finds that lands

beneath navigable waters in Alaska were not “wholly im-

mune from the general land laws” because Congress had

opened a small area of tidelands to gold mining at the turn

** Minnesota v. Hitchcock, 185 U.S. 373, 391 (1902); Barker v.

pon 181 U.S. 481, 490 (1901); Newhall v. Sanger, 92 U.S. 761, 763

(1876).

* Mann v. Tacoma Land Company, 153 U.S. 273, 284 (1894); see

also Borax Consolidated, Lid, 296 U.S. at 17 (1935); 2 Curtis H.

Lindley, Lindley on Mines 1015 (3rd Ed. 1914) (“[t]here is no

principle involved in the consideration of the public land system better

settled or more clearly enunciated than that lands under tidal waters,

and below the line of ordinary high tide, are not ‘public lands’).

"See Northern Lumber Co. v. O'Brien, 139 F. 614, 616, (8th Cir.

1905) (“[T]he words ‘public land’ have long had a settled meaning in

the lk islation of Congress, and, when a different intention is not clearly

expressed, are used to designate such land as is sudject to sale or other

disposal under general laws.”’).

of the century. Report at 408. The Master’s point here is

unclear, the Pickett Act did not authorize withdrawals from

the mining laws. See 43 U.S.C. §142 (1970) (before 1976

amendment). Second, he finds that the context of the

Pickett Act suggests a different meaning for “public lands.”

His idea of “context” completely ignores the language of the

statute, which is entirely consistent with the common defini-

tion of “public lands” — i.e., lands subject to sale, location,

and entry under the public land laws. This Court has defined

“context” for the meaning of “public lands” as “reference to

a definitional section or... context in a statute.” Amoco

Production Co. v. Village of Gambell, 480 U.S. 531, 549

n.15 (1987).

Nevertheless, even ignoring the plain language of the

Pickett Act, its purposes did not require inclusion of the

submerged lands. Recognizing that this Court found in Utah

that even a reservation for a reservoir did not necessarily

indicate an intent to reserve the bed of the lake, the Master

says that some Pickett Act purposes “may have been

thought at the time to require [submerged lands].” Report

at 413. Attributing such a speculative intent to Congress

disregards this Court’s finding that “Congress ‘early adopted

and constantly has adhered’ to a policy of holding land under

navigable waters ‘for the ultimate benefit of future States.’ ”

Utah, 482 U.S. at 201. Further, it defies logic to infer that

Congress thought it necessary to include submerged lands

within the Act’s otherwise nationwide purview when it

would apply only to Arizona, New Mexico, Hawaii, and

Alaska; the other 46 States had already entered the Union

and taken title to their submerged lands.

Simply put, nothing establishes “that Congress clearly

intended to include land under navigable waters within the

federal reservation” authority granted by the Pickett Act,

and such authority should not be inferred. Utah, 482 U.S. at

202.

2. There was no “public exigency” uiring the

inclusion of submerged lands in NPRA. 7

The Master significantly weakens Utah's strin -

dards for finding that submerged lands had been iecluded in

a reservation. Congress must make clear its intent to reserve

ee lands, and the reservation must be based on a

public exigency” or “international duty.” Report at 4

Utah, 482 U.S. at 197-98. The Masten Me et

those standards so broadly that the required intent might be

found in any case, effectively climinating them. He con-

cludes that there was a “public exigency” justifying the

reservation of submerged lands in NPRA because the exec-

utive order creating it said that “the future supply of oil for

the Navy is at all times a matter of national concern.”

Report at 423-25. He finds the requirement that the federal

government clearly express an intent to include submerged

lands satisfied because, in light of its purpose, NPRA’s

boundaries were drawn to include submerged lands. Jd. at

422. Neither of those facts meets the standards for estab-

lishing that the United States intended to reserve the sub-

merged lands.

; The Master characterizes a “public exigency” as “an

important purpose justifying the conveyance or reservation.”

Report at 417. Every reservation presumably is for an

important purpose.” It is hardly to be supposed that federal

reservations are created for unimportant purposes. “Exi-

gency connotes something more than merely “important,”

however, and is defined as “exacting or requiring immediate

aid or action: pressing, critical.” 5 Oxford English Diction-

ary 539 (2d ed. 1989). “Emergency” is defined as “a state of

things unexpectedly arising, and urgently demanding imme-

diate action.” Jd. at 176. Thus, emergency differs from

exigency only in its unexpected nature. Reserving sub-

merged lands for reasons that are pressing, urgent, and

requiring immediate action is quite different from reserving

them simply for “important reasons.” Reserving them as a

possible future source of supply for the Navy was inherently

not urgent as there was no immediate need and the lands in

any event were already reserved and unavailable for private

explcitation. a

Further, mere inclusion of submerged lands within a

reservation’s boundaries does not establish an intent to

reserve them. See Utah, 482 U.S. at 203. The Master

inferred such an intent, however, from his speculative con-

clusion that the drafters had no reason to include submerged

lands within the reserve’s boundaries if they did not intend

to reserve them. Report at 422. The United States fre-

quently includes water areas within the exterior boundaries

of reserves, however, without intending to reserve the sub-

merged lands. Utah, 482 U.S. at 202; Montana v. United

States, 450 U.S. 544, 554 (1981).

The plain language of the order, moreover, indicates that

NPRA was to serve as a possible ‘future supply of oil for the

Navy.” Reserving the submerged lands was unnecessary for

this purpose. The United States already held them in trust

for the future State — i.e., they already were reserved. No

State yet existed that could interfere with their continued

reservation or NPRA’s purpose. Finally, oil and gas develop-

ment was not permitted in submerged lands in Alaska in

1923 or for 35 years thereafter. Therefore, reserving the

submerged lands was unnecessary to preserve the oil under

them, and no “public exigency” required their inclusion.

3. Section 11(b) of the Alaska Statehood Act is not

“affirmative” evidence that Congress intended to

defeat Alaska’s title.

The Master does not conclude that the executive order

creating NPRA indicated that Congress intended to defeat

Alaska’s title to the submerged lands within NPRA. He

instead finds the required expression of intent in sec-

tion 11(b) of the Alaska Statehood Act, passed some

35 years later. Section 11(b) does not address submerged

_——

lands at all, however. The Master bases his conclusion on

inferences about how Congress might have wanted to exer-

cise jurisdiction in NPRA rather than on any congressional

expression of intent to defeat State title.

Because section 11(b) broadly describes the lands that

would be subject to Congress’s power to exercise exclusive

legislation after statehood, the Master infers that Congress

must have intended the United States to continue to own

the submerged lands. His analysis does not satisfy this

Court’s requirement that Congress definitely declare or

otherwise make very plain its intent to defeat the future

state’s title. He does not identify when or how Congress

decided to defeat the State’s title, and understandably so, for

Section 11(b) contains no such provision. He concludes

only that the manner in which Congress addressed exclusive

legislative authority is consistent with federal ownership of

the submerged lands. This does not meet the stringent Utah

standard for defeating State title to sovereign submerged

lands.

Section 11(b)’s purpose was to ensure that the State

would not impose laws inconsistent with the military’s use of

certain lands. It does not address title at all. It provides that

the lands it reaches are subject to Congress’s power to

exercise exclusive legislative jurisdiction, and defines the

areas subject to this power as those lands to which the

United States has title and uses for military purposes,

including NPRA.

Section 11(b) constitutes State consent to exclusive Con-

gressional legislative authority for military areas as required

by the “enclave clause” of the United States Constitution,

art. I, § 8, cl. 1.* This Court has interpreted the State

“The enclave clause provides that Congress shall have power “[t]o

exercise exclusive Legislation .. over all Places purchased by the

Consent of the Legislature of the State in which the Same shall be, for

the Erection of Forts, Magazines, Arsenals, Dock-Yards, and other

needful Buildings.”

consent requirement as applying only to exclusive federal

jurisdiction, not to the United States’ ability to “purchase”

land. See, e.g, Kohl v. United States, 91 U.S. 367, 374

(1876). The Congressman primarily advocating Sec-

tion 11(b) explained that it would give Congress the option

to exercise exclusive jurisdiction if it chose, but that “there

shall be concurrent jurisdiction unless Congress by future

action should reserve or pass legislation which would grant

exclusive jurisdiction to the Federal Government.” Hawaii-

Alaska Statehood: Hearing Before the House Comm. on

Interior and Insular Affairs, 84th Cong., Ist Sess. 261

(1955) (comments by Rep. Saylor) (emphasis added).

Thus, interpreting section 11(b) as definitely declaring an

intent to defeat Alaska’s title gives it unintended meaning.

The Master assumes that the United States must own all

lands within a military area to exercise exclusive jurisdic-

tion. Ownership is not required for the exercise of jurisdic-

tion, however, and Congress had no reason to defeat State

title to submerged lands for it always retains plenary author-

ity to regulate navigable waters for defense purposes. See 43

U.S.C. § 1314(a); Pollard, 44 U.S. (3 How.) at 229-30; cf.

Utah, 482 U.S. at 208 (vesting of Utah’s title to the bed of

Utah Lake would not prevent the United States from

subsequently developing a reservoir or water reclamation

project).

The District Court for Alaska recently rejected the

United States’ similar section 11(b) analysis in a case

addressing the effect of Public Land Order (“PLO”) 82, a

1943 withdrawal of the entire North Slope of Alaska

(48 million acres) that reserved minerals “for use in prose-

cution of the war”:

The United States attaches talismanic significance to

section 11(b) and 11(b) (iii) of the [Alaska Statehood

8 Fed. Reg. 1599 (1943). PLO 82 was revoked in 1960, barely a

year after Alaska’s admission. Public Land Order 2215, 25 Fed. Reg.

Act], yet these sections simply make no reference to

lands beneath navigable waters in PLO 82. When

considered in light of Congress’ definite intent not to

defeat state title to PLO 82 submerged lands [ when the

lands were reserved] in 1943, it is extraordinary to

suggest that Congress expressed the opposite intent

through the broad terms of section 11(b) and

11 (b) (iii).

Alaska v. United States, No. A87-0450-CV (HRH) (D.

Alaska 1996) (Order on State of Alaska’s Motion for

Partial Summary Judgment and the United States’ Cross-

Motion for Partial Summary Judgment) at 64-65 (attached

hereto as Appendix B).

The Master analyzes Congress's intent in a manner pro-

hibited by Utah, inferring from Congress's reservation of the

power of exclusive legislation an intent to defeat State title

to the submerged lands. Utah precludes that conclusion

because Congress in no way indicated that it meant to defeat

the State’s title. Doing so simply was not necessary to

regulate the waters for defense purposes. Without the requi-

site clear expression of Congress's intent to defeat State title

to these lands, title is presumed to have passed to the State.

Utah, 482 U.S. at 197-98.

That presumption is bolstered by Congress’s awareness of

both the general rule that the United States holds sub-

merged lands in territories in trust for future States and the

codification of the rule in the 1898 Alaska Right-of-Way

Act. Report at 438. The Master concludes that this fact

shows only “congressional awareness of the general rule”

and “does not speak to whether Congress meant to make an

exception to the general rule” for NPRA. /d. The Master's

12,599 (1960). Nonetheless, the United States claims that it defeated

Alaska’s equal footing doctrine title to all of the lands underlying

navigable waters on the North Slope. Solicitor’s Opinion M-36911, 86

yy 151 (1978), supplemented and modified, 100 Interior Dec.

comment misses the point, for the rule is that title to lands

underlying navigable waters passes to a new State under the

equal footing doctrine unless Congress affirmatively defeats

State title. Had Congress intended an exception to the

general rule, it would have said so. In the face of its

awareness of the equal footing doctrine and silence as to any

exception, the only permissible inference is that it intended

no exception.

B. An attempt by the United States to retain title to

submerged lands in a statehood act would violate the

equal footing doctrine.

Even if Congress had clearly expressed an intent in the

Alaska Statehood Act to retain the submerged lands in

NPRA after statehood, it would have run afoul of the equal

footing doctrine. The doctrine prohibits federal retention of

sovereign lands as a condition of statehood, alternatively, it

limits any federal retention to the narrowest interests

necessary.

1. Withholding sovereign rights as a condition of

statehood would violate the equal footing doctrine.

The equal footing doctrine prohibits the United States’

retention of submerged lands in a statehood act. The

Master’s conclusion that a section of the Alaska Statehood

Act defeated State title is based on the unconstitutional

premise that Congress can withhold State sovereign rights

as a condition to granting statehood. If section 11 (b) in fact

provided that the State would not receive title to the lands

underlying navigable waters in NPRA, it would be an

unconstitutional condition to statehood, an infringement of

State sovereignty that would be void.

This Court has long considered provisions of a statehood

act that purport to condition the new State’s admission to

the Union on a retention by the United States of a part of

the new State’s sovereignty to be a violation of the equal

footing doctrine. In Pollard, the Court held that a State’s

title to lands underlying navigable waters is conferred not by

Congress but by the Constitution, and Congress cannot

retain title as a condition of statehood:

[T]o Alabama belong the navigable waters, and soils

under them, in controversy in this case, subject to the

rights surrendered by the Constitution to the United

States; and no compact that might be made between

her and the United States could diminish or enlarge

these rights.

Id. at 229. As the Court stated in Corvallis Sand & Gravel,

429 U.S. at 374 (footnote omitted),

the Court [in Pollard] established the absolute title of

the States to the beds of navigable waters, a title which

neither a provision in the Act admitting the State to the

Union nor a grant from Congress to a third party [after

statehood] was capable of defeating.

The Court reaffirmed the Pollard equal footing rule and

extended it to State sovereign rights generally in Coyle v.

Smith, 221 U.S. 559, "570 (IS (1911). The Court determined

that limitations on State sovereignty imposed as a condition

of admission to the Union included in a statehood act (in

that case a limitation on Oklahoma’s power to determine the

location of its capital) were invalid because the Constitution

requires that all new States be admitted with all the powers

of sovereignty and jurisdiction that pertain to original States.

Id. at 566-74.

The United States’ retention of lands underlying naviga-

ble waters as a condition of statehood would require that the

State enter the Union on less than equal footing. Title to

such lands is a direct incident of State sovereignty. Hardin

v. Jordan, 140 U.S. 371, 381 (1891). “Dominion over

navigable waters and property in the soil under them are so

identified with the sovereign power of government that a

presumption against their separation from sovereignty must

be indulged.” United States v. Oregon, 295 US. 1, 14

(1934). A State’s interest in lands underlying navigable

waters is different from its interest in uplands, which can be

bargained for in a statehood compact without infringing

upon State sovereignty. See Stearns v. Minnesota ex rel.

Marr, 179 U.S. 223, 244-45 (1900) (drawing a distinction

between the validity of statehood compact provisions refer-

ring to Sovereign State rights and obligations and those that

constitute “a mere agreement in reference to property”).

A compact provision under which the United States

would retain lands that are a direct incident of State

sovereignty is no “mere agreement in reference to property.”

A State, as sovereign, holds title to the lands underlying

navigable waters in trust for the public. See Illinois Central

RR. Co. v. Illinois, 146 U.S. 387, 453 (1892). While a pre-

statehood conveyance does not violate the equal footing

doctrine, this differs from federal retention of submerged

lands as a condition of statehood. Federal territories are not

entitled to equal rights of sovereignty. Conditioning a State's

admission on a relinquishment of title to sovereign lands, on

the other hand, diminishes the new State’s sovereignty and

forces admission on a less-than-equal footing with other

States.

The authorities the Master cites cannot be read to con-

done a federal retention of submerged lands as a condition

of statehood. Alaska Pacific Fisheries v. United States, 248

U.S. 78 (1918), found that an offshore fish trap was within

the Metlakatla Indian Reservation. The Master finds signifi-

cant the Court's statement that Congress’s power “to make

the reservation inclusive of the adjacent waters and sub-

merged land, as well as the upland, needs little more than

statement.” Jd. at 87; Report at 399. This was dictum,

however, as the issue was whether Congress included adja-

cent waters within the boundaries of the reservation, de-

scribed in the Act creating it as “the body of lands known as

Annette Islands.” Jd. Reservation of the submerged /ands

was not an issue in the case. Further, the case did not

address Congress’s power to defeat a State’s title by retain-

ing submerged lands. The Court decided it more than

40 years before Alaska’s statehood and nearly 70 years

before declaring this issue undecided in Utah.

The Master also cites two cases in which the Ninth

Circuit found that pre-statehood reservations defeated

Alaska’s title to submerged lands. United States v. City of

Anchorage, 437 F.2d 1081 (9th Cir. 1971); United States v.

Alaska, 423 F.2d 764 (9th Cir. 1970), cert. denied 400 U.S.

967 (1970); Report at 401. These cases preceded Utah,

however, and simply assumed that federal reservations de-

feated State title without applying Utah's two-prong test.

Finally, the Master notes that the Submerged Lands Act

assumes that the United States may retain lands beneath

navigable waters, as the rights it grants or confirms are

subject to an exception for “all lands expressly retained

by ... the United States when the State entered the Union.”

43 U.S.C. § 1313(a); Report at 401. Equal footing doctrine

lands, however, are not lands that Congress decides to

convey at statehood, and thus are unaffected by any excep-

tions in the Submerged Lands Act. These lands pass as a

matter of constitutional law to the new State because of

their special nature as sovereign lands. Pollard, 44 U.S. at

230.

The lands that pass to the new State under the equal

footing doctrine consist of those underlying inland navigable

waters and tidally influenced waters, and between ordinary

high and low tides. The incorporation of the Submerged

Lands Act into the Alaska Statehood Act constituted a

grant only of the lands extending three miles seaward of the

State’s coast line, which do not pass to the State automati-

cally. See United States v. California, 332 U.S. 19 (1947).

As Congress granted only the lands underlying the marginal

sea, it could only exclude lands within this category. The

Submerged Lands Act could not supersede the constitution-

ally-based equal footing doctrine. See Bonelli Cattle Co. v.

Arizona, 414 U.S. 313, 318 (1973) (“The Submerged

Lands Act of 1953 did not disturb [the equal footing

doctrine ]”); see also Corvallis Sand & Gravel, 429 U.S. at

371 n. 4. As to lands that Congress could except from the

Submerged Lands Act grant to the States, moreover, Con-

gress mandated that they be “expressly retained,” 43 U.S.C.

§ 1313(a) (emphasis added), a requirement at least as

stringent as that for equal footing doctrine lands. See n. 34

supra.

2. When an international duty or a public exigency

necessitates federal retention of submerged lands,

the United States’ retained interest should be

limited to those rights absolutely necessary rather

than fee title.

Even if the Court finds that in some circumstances the

United States can defeat a new State’s title to submerged

lands as a condition of statehood, the Master’s recommen-

dation still goes too far. His conclusion that the United

States retains full title to the NPRA submerged lands

unnecessarily diminishes the equal footing doctrine. If the

United States must retain some ownership of submerged

lands after statehood, it should retain only those interests

justified by a public exigency or international duty and only

as long as that condition exists. In this case, for example, the

NPRA executive order would reserve only the oil and gas

and not interfere with any uses of the submerged lands or

waters that are compatible with that purpose.

Federal reservations and withdrawals often do not require

a taking of full title. This Court recognized early that the

United States could convey title subject to certain reserved

rights. The earliest cases dealt with conveyances to private

parties subject to the right of Indians to occupy the lands.

See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).

Moreover, the United States commonly transfers ownership

of land to third parties while reserving certain specific rights

to itself. See, e.g., Act of March 8, 1922, ch. 96, § 2, 42 Stat.

416, codified as amended at 43 U.S.C. § 270-12 (1996) (oil,

gas, and mineral rights reserved from homestead patents).

Under this analysis, even when the United States clearly

intends to continue using submerged lands after statehood

because of some international duty or public exigency, it

should retain only such limited rights as are essential to

effectuate the purpose of the withdrawal. A necessary corol-

lary of this principle is that once the international duty or

public exigency no longer exists and a withdrawal or reserva-

tion is revoked, the State’s “naked fee” ripens into full fee

simple title. See, e.g., Beecher v. Wetherby, 95 U.S. 517, 525

(1877).

This result would best serve the public interest in using

navigable waters for commerce, fishing, and navigation. In

Alaska, the Master’s assumption that the United States will

substitute for the State in holding submerged lands in trust

for the public has not proven true. The United States

systematically has conveyed submerged lands within pre-

statehood withdrawals to private parties without determining

navigability. See, e.g., Alaska v. United States, No. 87-0450-

CV (HRH) (Appendix B), supra 65, at 7 n. 12.

For all of the foregoing reasons, the Court should reject

the Master’s recommendation that the United States be

found to have retained the submerged iands within NPRA.

The Court instead should hold that they passed to Alaska at

statehood as a direct incident of State sovereignty under the

equal footing doctrine.

CONCLUSION

Alaska accordingly submits that the Master’s labored

recommendations on Stefansson Sound and other areas

enclosed by fringing islands less than ten miles apart,

Dinkum Sands’ status as an island, and ownership of the

submerged lands within NPRA should not be followed. The

Court instead should enter a decree that (1) Alaska’s rights

in Stefansson Sound and other areas enclosed by near-shore

fringing islands less than ten miles apart must be determined

under the 10-mile rule that the Court found was the United

States’ policy from at least 1903 until 1961; (2) Dinkum

Sands is an island and constitutes a part of Alaska’s coast

line for Submerged Lands Act purposes (or, alternatively,

that it is an island for Submerged Lands Act purposes

except when it is below high tide); and (3) the submerged

lands. within the exterior boundaries of NPRA became

Alaska’s at statehood because Congress did not intend to

include them in the reservation and did not affirmatively

intend to defeat Alaska’s title.

August 1996

Respectfully submitted,

Bruce M. BOTELHO

Attorney General

JOANNE M. GRACE

Assistant Attorney General

G. THOMAS KOESTER

JOHN BRISCOE

WASHBURN, BRISCOE & MCCARTHY

Appendix A

APPENDIX A:

Summary of evidence of American baselines practice lead-

ing up to the United States’ Statement of the 10-mile rule

at the 1903 Alaska Boundary Arbitration

(Excerpted from the record and from the “ i

Outline of Relevant Events in American Foreign Policy with

Respect to the Delimitation of the Territorial Sea and Other

Maritime Zones, 1782-1985, filed with the Special Master

May 28, 1985. A Revised version of the document was, with

consent of counsel, submitted for the record in June of 1995.

See Report at 20 n. 3.)

The Attorney General wrote in 1793: “[T]he property

and dominion of the sea might belong to him who is in

possession of the lands on both sides, though it be open as a

gulf, or open above and below as a strait.” Seizure in

Neutral Waters, 1 Op. Att’y Gen. 32, 36 (1793) (citation

omitted). (Another of the Court’s Masters rested his con-

clusion that islands could enclose inland waters in part on

this statement. Report of the Special Master, United States

v. Maine (Massachusetts Boundary Case) (No. 35, Origi-

nal) (Oct. Term, 1984), reprinted in The Reports of the

Special Masters of the United States Supreme Court in the

Lands Cases 1949-1987 (Michael W. Reed,

G. Thomas Koester and John Briscoe, eds., 1991), at 750.

Secretary of State Pickering informed Virginia Lieuten-

ant Governor Wood on September 2, 1796, that the United

States’ offshore jurisdiction extended three miles “from our

shores, with the exception of any waters or bays which are so

landlocked as to be unquestionably within the jurisdiction of

the United States, be their extent what they may.” Ak. Ex.

85-009.

On May 17, 1800, Secretary of State Madison directed

United States representatives Monroe and Pinkney to nego-

tiate for a neutrality zone that would include “the harbours

or the chambers formed by headlands.” Quoted in 13 Naval

War College, International Law Topics and Discussions

1913 36 (1914) (Ak. Ex. 85-008). The “collection district”

for the collection of duties on imports and tonnage within

territory ceded to the United States under the Louisiana

Purchase was described as including “all navigable waters,

rivers, creeks, bays and inlets” in the Gulf of Mexico. Ch.

13, Act of February 24, 1804.

President Jefferson explained the “line of sight rule” for

determining the seaward limit of inland waters on Septem-

ber 8, 1804:

The rule of the common law is that wherever you can

see from land to land all the water within the line of

sight is in the body of the adjacent country and within

common-law jurisdiction. Thus, if in this curvature

ab you can see from a to 5, all the water within the

line of sight is within common law jurisdiction, and a

murder committed at c is to be tried as at common [as

opposed to admiralty] law.

Quoted in 13 Naval War College, International Law Topics

and Discussions 1913 17 (1914) (Ak. Ex. 85-008).

In The Anna, 165 E.R. 809 (1805), the British Admiralty

Court held that the United States’ territorial sea was to be

measured from alluvial islands off the mouth of the Missis-

sippi River but more than three miles offshore. The islands,

according to the court, form “a kind of portico to the

mainland . . . [and are] the natural appendages of the coast

on which they border, and from which, indeed, they are

formed.” The Anna at 815. (In the 1903 Alaska Boundary

Arbitration, United States’ representative Hannis Taylor

observed that the British court in The Anna had fixed the

United States’ political coastline at the “uttermost limit of

these mud banks.” 7 Proceedings of the Alaska Boundary

Tribunal, S. Doc. No. 162, 58th Cong., 2d Sess. 608

(1903).)

Wheaton advocated in 1815 that the seaward limits of

jurisdiction be measured from a line extending “to the ports,

harbours, bays, and chambers formed by headlands of the

neutral Power.” Henry Wheaton, A Digest of the Law of

Maritime Captures or Prizes 55 (1815), quoted in Christo-

pher B. V. Meyer, The Extent of Jurisdiction in Coastal

Waters 94 (1937) (“Coastal Waters”) (Ak. Ex. 85-804).

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