# Exception — Cuban American Bar Ass'n v. Christopher > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0005%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Exception - **Published:** January 1, 1995 - **Citation:** 516 U.S. 913 ## Text > ee - ‘ fas DOE “» ° , - » « 2, vv - ~. > at 4 Pe = a ¥ , ~- “, — _ ‘> * wi WES MRM % - eter +m * 5 * r 4 A . 3 if : 5 rr ‘ wy es pat - “yy tat | > ee 5 ~ in i s a. - A 2 SD Ae | ‘ } ‘4 ae Ta ‘ . we » ‘ . + . - bie* a In the Supreme Court United S States OcToser Term, 1995 UNITED STATES OF AMERICA, Plaintiff v. 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 : - —- ' - 7. -———s No. 84, Original In the Supreme Court OF THE United States October Term, 1995 UNITED STATES OF AMERICA, Plaintiff V. 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 .......... % 32 45 51 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 oO om) a) hed — CO =Clerk’s Docket No. 98. *Clerk’s Docket No. 102. *Clerk’s Docket No. 105. *Clerk’s Docket No. 106. Supplemental authority was filed at Clerk's Docket No. 107. ’A river is navigable if it is used or susceptible to being used, in its ordinary condition, as a highway for commerce. Alaska v. Ahina, Inc., 891 F.2d 1401, 1404 (9th Cir. 1989), cert. denied, 495 U.S. 919 (1990). *The phrase “submerged lands” is used throughout to refer to lands _ beneath navigable waters. i 3 The United States acquired the lands surrounding and beneath the Kukpowruk River in 1867 when it ratified the treaty of cession with Russia and purchased Russian America (Alaska) for $7,200,000. 15 Stat. 539 (1867). On January 22, 1943, the Department of the Interior (DOI) issued PLO 82, 8 Fed. Reg. 1599 (Jan. 22, 1943). PLO 82 withdrew certain public lands in Alaska “from sale, location, selection, and entry under the public land laws of the United States, including the mining laws, and from leasing under the mineral-leasing laws...” Jd. The Kukpowruk River lies completely within the withdrawn land. The purpose of PLO 82 was to reserve minerals for use in the prosecution of World War II. Jd. PLO 82 included 48,800,000 acres in northern Alaska, 15,600,000 acres in the Alaska Peninsula, and 3,040,000 acres in the Katalla- Yakataga region. The area in northern Alaska was described as: All that part of Alaska lying north of a line beginning at a point on the boundary between the United States and Canada, on the divide between the north and south forks of the Firth River, approximate latitude 680° 52’ N. longitude 141° 00’ W., thence westernly, along this divide, and the periphery of the watershed northward to the Arctic Ocean, along the crest of portions of the Brooks Range and the De Long Mountains, to Cape Lisburne. Id?’ Shortly after the end of the war, and prior to statehood,’° the DOI revoked PLO 82 as to the Alaska Peninsula and Katalla-Yakataga acreage. Public Land Order 323, 11 Fed. * Northern Alaska, as refrenced in the Federal Register, is commonly referred to as the North Slope. © Alaska entered the Union in 1959. 4 Reg. 9141 (Aug. 14, 1946). In 1958, PLO 1621 amended PLO 82 to permit mining and mineral leasing in an area between the Canning and Colville Rivers and in an area west of National Petroleum Reserve No. 4 (NPR-4) and east of Cape Lisburne. 23 Fed. Reg. 2637-38 (Apr. 18, 1958). The Kukpowruk River lies within the western portion of the area open to mining and mineral leasing. Alaska became a state in 1959 and entered the Union “on an equal footing” with all other states. Alaska Statehood Act (ASA), § I. The ASA included a provision making the Submerged Lands Act applicable to the State of Alaska. Jd. at § 6(m). In 1960, subsequent to Alaska statehood, the DOI issued PLO 2215 which revoked PLO 82 as to the northern region of Alaska. 25 Fed. Reg. 12599 (1960). Procedural History In 1978, Solicitor Leo Krulitz addressed: (1) whether PLO 82 withdrew inland submerged lands; (2) if yes, whether the withdrawal prevented transfer of title to the submerged lands to Alaska at statehood; and (3) if so, whether revocation of PLO 82 in 1960 transferred ownership of the submerged lands to Alaska. See The Effect of Public Land Order 82 on the Ownership of Coastal Submerged Lands in Northern Alaska, M-36911, 86 Interior Dec. 151 (Dec. 12, 1978) (Krulitz Opinion). Solicitor Krulitz reached the following conclusion: PLO 82 expressly reserved the submerged lands under- lying inland navigable waters within the area it with- drew in northern Alaska, and. . . therefore such lands did not pass to the State of Alaska under the Alaska Statehood Act, by operation of the Submerged Lands Act, and did not pass to the State upon revocation of PLO 82. Id. at 174-75. 5 Solicitor Krulitz based his conclusion on the following: (1) the United States’ sovereign power over land in the territories included the power to reserve submerged lands to itself; (2) the phrase “public lands” in PLO 82 should be construed to encompass submerged lands; (3) the compre- hensive language of PLO 82 implies the withdrawal of everything within the boundaries of the withdrawal, includ- ing submerged lands; (4) the purpose of PLO 82 was to protect oil resources from private interference during World War II; (5) PLO 82 expressly retained inland submerged lands at statehood pursuant to the Submerged Lands Act of 1953, 43 U.S.C. § 1302 et seq.; (6) the decision in United States v. Holt State Bank, 270 U.S. 49 (1926), that lands under navigable waters in territories are held by the United States and disposal “should not be regarded as intended unless the intention was definitely declared .. . . “Jd. at 55; and (7) the revocation of PLO 82, nearly two years subse- quent to statehood, did not transfer inland submerged lands to Alaska because the United States had expressly retained the in land submerged lands at the time of statehood pursuant to the Submerged Lands Act (SLA).'' "The significance of the Submerged Lands Act on the solicitor’s opinion warrants further discussion. Ten years subsequent to promulga- tion of PLO 82, Congress enacted the Submerged Lands Act of 1953. The Submerged Lands Act granted to states title to land beneath inland navigable waters — SLA § 3 (a); 43 U.S.C. § 1311(a). The Alaska Statehood Act made the SLA applicable to Alaska. However, section 1313(a) of the Submerged Lands Act provided that [t]here is excepted from the operation of section 1311 of this title . . . all lands expressly retained by . . . the United States when the State entered the Union .. «+ Id. Solicitor Krulitz concluded that PLO 82 “expressly retained” the lands under inland navigable water and that title to such land did not pass to Alaska at statehood. According to the Solicitor, subsequent revocation of PLO 82 did not divest the United States of title to the inland submerged land because the section | 313(a) exception applied to Alaska at statehood, thus constituting “a permanent retention by the United Sites of those submerged lands.” Krulitz Opinion at 174. The 6 In 1989, the State of Alaska filed a two-count amended complaint requesting that the court declare that PLO 82 did not defeat the State of Alaska’s title to the beds of navigable waters. The complaint also seeks to quiet title in the State of Alaska to the bed on the Kukpowruk River. Additionally, the complaint requests injunctive relief requiring defend- ants, when claiming that a federal reservation of land prevented title of the beds of navigable water from vesting in the State of Alaska, to apply certain standards set forth in Utah Div. of State Lands v. United States, 482 U.S. 193 (1987) (Utah Lake)."* In 1988, the Secretary of the Interior asked Solicitor Sansonetti to consider the impact of Utah Lake on the Krulitz Opinion. The parties in this suit agreed to a stay pending issuance of the solicitor’s opinion. On April 20, 1992, Solicitor Sansonetti issued: Ownership of Submerged Lands in Northern Alaska in Light of Utah Division of State Lands v. United States, M-36911 (Supp. 1) (April 20, 1992) (Sansonetti Opinion).'? The Sansonetti Opinion agreed with the Krulitz Opinion that title to the land beneath inland navigable waters in northern Alaska did not pass to Alaska at statehood. After Solicitor Sansonctti for summary judgment in which they agreed that the court Solicitor reasoned further that if tide to certain submerged lands was aot transferred to Alaska because of a section 1313(a) exception, “mere revocation of [PLO 82 in 1960] could not have automatically trans- ferred title to the State.” Krulitz Opinion at 174 (footnote omitted). '?The amended complaint also seeks certain relief regarding interim conveyances issued by the United States which purport to convey title to the bed of the Kukpowruk River and other submerged land. Clerk's Docket No. 50. "Copy attached to affidavit of counsel regarding supporting docu- ments, in support of plaintiff's motion for partial summary judgment (filed Nov. 2, 1992), Clerk’s Docket No. 94; published at 100 Interior Dec. 103 (Apr. 20, 1992). + need only decide, at this point, whether title to the lands underlying navigable water in the PLO 82 area passed to the State of Alaska at statehood. Specifically, the cross-motions for summary judgment address only Count | of plaintiff's amended complaint in which the State of Alaska seeks to quiet title to itself to the bed of the Kukpowruk River. To set the issues into proper context, the court will review Utah Lake and the Sansonetti Opinion. Utah Lake In Utah Lake, the Supreme Court considered “whether title to the bed of Utah Lake passed to the State of Utah under the equal footing doctrine upon Utah’s admission to the Union in 1896. Utah Lake, 482 U.S. at 195. The equal footing doctrine is based upon the status of the original 13 states which, as successors to the English Crown, claimed title to land beneath navigable waters within their bounda- ries. “Because all subsequently admitted States enter the Union on an ‘equal footing’ with the original 13 States, they too hold title to the land under navigable waters within their boundaries upon entry into the Union.” Jd. at 196 (citation omitted). While a prospective state is still a territory, Congress, under the Property Clause of the Constitution'*, has the power to make grants of submerged lands in any territory “to perform international obligations, or to effect the im- provement of such lands for the promotion and convenience of commerce with foreign nations and among the several States, or to carry out other public purposes appropriate to “The Property Clause states: The Congress shall have power to dispose of and make all needful rules and regulations respecting the Territory or other Property belonging to the United States... . U.S. Const. art. IV, § 3 cl. 2. the objects for which the United States hold the territory.” Shively v. Bowlby, 152 U.S. 1, 48 (1894). Thus, in the appropriate circumstances, Congress can defeat a prospec- tive state’s title to submerged land. Utah Lake, however, did not involve a situation in which Congress granted title of territorial submerged land to a private party. Rather, pursuant to the Sundry Appropria- tions Act of 1888, Congress authorized the reservation of Utah Lake in the Territory of Utah as property of the United States.'* In 1896, Utah entered the Union “on an equal footing with the original States. Utah Lake, 482 U.S. at 200 (citations omitted). In 1976, the DOI issued oil and gas leases for lands underlying Utah Lake. The State of Utah filed suit seeking a declaratory judgment that it, and not the United States, owned the lake bed. The district court found that title to the lake bed remained with the United States pursuant to the federal government's reservation of Utah Lake as a reservoir site in 1889. In considering the issues, the Supreme Court discussed several principles of fundamental importance to the case at bar. “[N]othing in the Constitution . . . prevent[s] the Federal Government from defeating a State’s title to land under navigable waters by its own reservation for a particu- lar use . . . [however] the strong presumption is against finding an intent to defeat the State’s title.” Jd. at 201. The Court noted that Congress was to hold submerged lands “for the ultimate benefit of future States” and that Congress 'S The Sundry Appropriations Act of 1888 authorized the United States Geological Service to select potential reservoir sites for irrigation purposes. The sites were to be “reserved from sale as the property of the United States, and shall not be subject . . . to entry, settlement, or occupation .. .” The 1890 Act repealed the 1888 Act, but that did not affect the status of lands already selected and reserved, including Utah Lake which had been reserved in 1889. Utah Lake, 482 U.S. at 198-99 (citation omitted). 9 would defeat a prospective state’s entitlement to submerged land only “in exceptional instances.” Jd. (citation omitted). Accordingly, the Court stated “whether faced with a reser- vation or a conveyance, we simply cannot infer that Con- gress intended to defeat a future State’s title to land under navigable waters ‘unless the intention was definitely declared or otherwise made very plain.”” Jd. at 201-202 (citation omitted). A significant difference exists between a reservation of land and a conveyance of land. When Congress conveys submerged land, “of necessity it must also intend to defeat a future state’s claim to the land.” Jd. at 202. Thus Congress’ intent to defeat state title to submerged land is made plain through the act of conveyance. Reservation of land, how- ever, may not evince an intent to defeat a prospective state’s claim; the land remains in federal control and “may still be held for the ultimate benefit of future States.” Jd. at 201 (citation omitted). For example, in Montana v. United States, 450 U.S. 544 (1981), the Court considered whether Congress intended to permit the State of Montana to take title to the bed of the Big Horn River at statehood, even though the Big Horn flows through the Crow Indian Reser- vation. Although various treaties between the United States and the tribe established the Crow Indian Reservation boundaries, nothing in the treaties overcame. The strong “presumption against the sovereign’s conveyance of the riverbed.” Montana, 450 U.S. at 554. The treaties presented no public exigency requiring Congress to depart from the policy of reserving ownership of submerged lands for a prospective state. Thus, in Montana, Congress intended for the state to take title of the bed of the navigable river at statehood, even though the land through which the Big Horn flows was reserved for the Crow Tribe.”’® '©In Montana, the court stated: 10 Similarly, in United States v. Holt State Bank, 270 US. 49 (1925), the Supreme Court rejected an Indian tribe's claim to title to the bed of a navigable lake which lay within the boundaries of the Red Lake Indian Reservation in Minnesota. The Court held that although certain land was reserved as a permanent home for the Indians pursuant to treaties, nothing in the treaties “approache[d] a grant of rights in lands underlying navigable waters -++ MOF... evince[d] a purpose to depart from the established pol- icy ... of treating [submerged] lands as held for the benefit of the future State”. Jd. at 58-59.'’ In the Court’s opinion, A court deciding a question of title to the bed of a navigable water must ... begin with a strong presumption against conveyance by the United States, and must not infer such a conveyance unless the intention was definitely declared or otherwise made plain, or was rendered in clear and especial words, or unless the claim confirmed in terms embraces the land under the water of the stream. Montana, 450 U.S. at 552 (citations and internal quotation marks omitted). The phrase “confirmed in terms embraces the land” is rather awkward, and may have made more sense when it was written in 1891 in Packer v. Rird, 137 U.S. 661, 672 (1891). From the manner in which succeeding cases interpret the phrase, it is obvious that the terms of a land claim must “embrace[ ] the land under the waters of the stream” in order to defeat the strong presumption against conveyance by the United States. '’ Holt reiterated the policy set out in Shively: [T]he United States early adopted and constantly has adhered to the policy of regarding lands under navigable waters in acquired territory, while under its sole dominion, as held for the ultimate ‘benefit of future States, and so has refrained from making any disposal thereof, save in exceptional instances when impelled to particular disposals by some international duty or public exigency. It follows from this that disposals by the United States during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain. Holt, 279 U.S. 55. the creation of the Red Lake Indian Reservation did not “operate[] as a disposal of the lands under ... navigable waters within [the reservation] limits ... .” Jd. at 58. Consequently, title to the submerged lands passed to Minne- sota at statehood.'* Based on its previous decisions in Shively, Montana, and Holt State Bank, the Court in Utah Lake set forth a dual inquiry for determining whether a reservation of land could defeat a prospective state’s title to submerged land. The Court explained as follows: Given the longstanding policy of holding land under navigable waters for the ultimate benefit of the States . . . we would not infer an intent to defeat a State’s equal footing entitlement from the mere act, of reservation itself. Assuming, argruendo, [sic] that a reservation of land could be effective to overcome the strong pre- sumption against the defeat of state title, the United States would not merely be required to [1] establish that Congress clearly intended to include land under navigable waters within the federal reservation; the United States would additionally have to [2] establish that Congress affirmatively intended to defeat the fu- ture State’s title to such land. Utah Lake, 482 U.S. at 202. "The meaning of “reservation” at issue in Utah Lake is legally different from the meaning of “reservation” in Montana and Holt State Bank. In the latter two cases, “reservation” referred to the creation of Indian title, while in Utah Lake, “reservation” referred to land reserved for the United States. Thus, in Utah Lake, the Court stated that “we have never decided whether Congress may defeat a State's claim to title by a federal reservation or withdrawal of land under navigable waters.” Utah Lake, 482 U.S. at 200. The distinction is discussed in greater detail in Coeur D'Alene Tribe of Idaho v. State of Idaho, 42 F.3d 1244, 1256 (9th Cir. 1994). 12 In applying the first part of the two part test, the Utah Lake court found that the United States failed to establish that Congress intended to reserve the bed of Utah Lake in cither the 1888 or 1890 Act. Regarding the 1888 Act, the Court noted that the Act reserved certain lands “from sale as the property of the United States” such that the land was not subject “to entry, settlement, or occupation until further provided by law.” Jd. at 203 (citation omitted). However, the 1888 Act did not reserve submerged lands because those lands “were already the property of the United States and already exempt from sale, settlement, or occupation. . . .” Id. at 203. Thus, “little purpose would have been served by the reservation of the bed of Utah Lake.” Jd." The Court also found that the 1890 Act did not reserve the bed of Utah Lake. The 1890 Act repealed the 1888 Act, but in doing so it specifically reserved from entry or settle- ment previously selected reservoir sites, including Utah Lake. Nonetheless, the Court found that Congress, in enact- ing the 1890 Act, did not reserve the bed of Utah Lake. The Court specifically stated that the “scattered references to the bed of Utah Lake in the material submitted to Congress . . . presents no unambiguous evidence that Members of Congress actually understood these references as pointing to a reservation of the bed of Utah Lake.” Jd. at 207. The Court concluded by stating that “the 1890 Act no more definitely declared or otherwise made very plain Congress’ intent to reserve Utah Lake than had the 1888 Act. Jd. (citations and internal quotation marks omitted). Accord- '’The Court advanced another reason as to why the lake bed had not been reserved. The Court referred to a proviso in the 1888 Act which permitted the President to open any land reserved to settlement. The Court stated that it was “inconceivable that Congress intended by this simple proviso to abandon its long-held and unyielding policy of never permitting the sale or settlement of land under navigable waters ... .” Utah Lake, 482 U.S. at 204 (citation omitted). 13 ingly, the United States failed to meet the first part of the Utah Lake test. Even if the United States did intend to reserve the bed of Utah Lake, thus satisfying the first part of the test, the Court found that neither the 1888 nor 1890 Act clearly expressed congressional intent to defeat Utah’s claim to the lake bed under the equal footing doctrine. The 1888 Act merely provided that the reserved land was reserved from sale and not subject to settlement or occupation; it did not mention Utah’s entitlement to land beneath navigable rivers and lakes at statehood. Jd. at 208. The Court stated that “the broad sweep of the 1888 Act cannot be reconciled with an intent to defeat the States’ title to the land under navigable waters.” Jd. The Court stated further that defeat- ing the State’s title to the bed of Utah Lake in the absence of “international duty [or] public exigency . . . would be wholly at odds with Congress’ policy of holding this land for the ultimate benefit of the future States.” Jd. at 208-09 (citation and internal quotation omitted). The Court concluded: Congress did not definitely declare or otherwise make very plain either its intention to reserve the bed of Utah Lake or to defeat Utah’s title to the bed under the equal footing doctrine. Accordingly, we hold that the bed of Utah Lake passed to Utah upon that State’s entry into statehood on January 4, 1896. Id. at 209.”° . *The only case in which the Supreme Court found that Congress intended to grant the bed of a navigable river to a private party was Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970). Choctaw is cited as the “singular exception”, “based on very peculiar circumstances [and] the unusual history of the treaties there at issue [.]” Montana, 450 U.S. at 555 n.S. The circumstances included a series of broken treaties and forced relocation of the Cherokee and Choctaw farther and farther west. Eventually, land west of the Arkansas Territory was conveyed to the 14 The Sansonetti Opinion The Sansonetti Opinion contains an exhaustive review of the facts and law applicable to PLO 82, much of which this court has already discussed. Accordingly, the court need only highlight the Sansonetti opinion’s major points. The Sansonetti Opinion concluded that the Utah Lake test applied to PLO 82. This is significant because PLO 82 involves a reservation of land, and Utah Lake did not answer the question of whether a reservation of land could defeat a prospective state’s title to submerged land. Although Utah Lake discussed the issue in detail, the Court stated that “[ w]e need not decide that question today . . . because... a reservation of the bed of Utah Lake was not accomplish on these facts. Jd. at 201. The Court set out the two-part test only after [a]ssuming, arguendo, that a reservation of land could be effective to overcome the strong presumption against the defeat of state title .. . .” Jd. at 202 (emphasis added). The Sansonetti Opinion next discussed whether the Exec- utive withdrawal accomplished by PLO 82 could satisfy the test. The Utah Lake test, of course, asked whether Congress intended to include submerged land in an expressly autho- rized federal reservation and whether Congress intended to defeat state title to such land. PLO 82, on the other hand, was an Executive withdrawal by the Secretary of the Interior pursuant to authority from President Roosevelt. The San- sonetti Opinion noted, however, that the Executive Branch acted as the agent of Congress in exercising its constitu- tional authority over the public domain. United States v. Midwest Oil Co., 236 U.S. 459, 471-75 (1915). The San- Choctaw Nation in fee simple. Relevant treaties promised that no part of reservation lands would ever become part of any state. The Cherokee signed similar treaties. Such circumstances had no counterpart in the Crow treaties at issue in Montana. 15 sonetti Opinion then analyzed the Executive’s intent at the time of the issuance of PLO 82. The Sansonetti Opinion concluded that PLO 82 satisfied the first part of the Utah Lake test (clear intent to include submerged land within the federal reservation) for three reasons. First, PLO 82 was “all-inclusive” in withdrawing “all that part of Alaska north of the Brooks Range and the De Long Mountains, including the watershed northward to the Arctic Ocean . . . .” Sansonetti Opinion at 31 (citation and internal quotations omitted). Additionally, a contempo- raneous map of the withdrawal area did not exclude any bodies of water or submerged land. Second, the Sansonetti Opinion stated that “PLO 82's reference to ‘public lands’ was consistent with an intent to withdraw submerged lands” because reserving the sub- merged lands furthered the purpose of the withdrawal.” Sansonetti Opinion at 31. The Sansonetti Opinion cited Alaska Pac. Fisheries Co. v. United States, 248 U.S. 78, 87, which suggested that a withdrawal of “Public lands” could, depending upon the withdrawal’s purpose, include sub- merged lands.” In United States v. Alaska, 423 F.2d 764 (9th Cir.), cert. denied, 400 U.S. 967 (1970), the court stated “the courts have consistently held that the words ‘public domain’, ‘public lands’ and ‘land’, include land under water.” Jd. at 766 (citing: Moore v. United States, 157 F.2d 760 (9th Cir. 1946), cert. denied, 330 U.S. 827 (1947); Alaska Pac. Fisheries v. United States, 248 U.S. 78 (1918); and Hynes v. Grimes Packing Co., 337 U.S. 86 (1949)). 21In Alaska Pac. Fisheries, the Court considered whether Congress’ withdrawal of “the body of lands known as Annette Islands” for the Metlakatla Indians included waters overlying coastal submerged lands. Alaska Pac. Fisheries, 248 U.S. at 87. “The principal question for decision [was] whether the reservation created by the Act of i891 embrace[d] only the upland of the islands or include[d] as well the adjacent waters and submerged land.” /d. In answering the question, the Court considered the “purpose of creating the reservation”. /d. at 89. That purpose was to provide for the needs of the Metlakatla who were 16 Third, the Sansonetti Opinion stated that the purpose of PLO 82 was to protect oil and gas resources for the prosecution of World War II. The Sansonetti Opinion stated that failing to reserve the submerged lands would have been illogical and incompatible with PLO 82’s purpose, because it would have left some of the most productive areas available for private development.” For these reasons, the Sansonetti Opinion concluded that PLO 82 clearly intended to include submerged lands, thus satisfying the first part of the Utah Lake test. The Sansonetti Opinion then considered whether PLO 82 satisfied the second part of the Utah Lake test (whether Congress affirmatively intended to defeat Alaska’s title to the submerged land at statehood). The Sansonetti Opinion noted that at the time PLO 82 was issued in 1943, Alaska statehood was not imminent and nothing in PLO 82 pur- ported to defeat Alaska’s equal footing entitlement to the submerged lands of PLO 82.” Accordingly, the Sansonetti opinion concluded that PLO 82 did not meet the second prong of the Utah Lake test in 1943. Consequently, the Sansonetti Opinion considered whether the Executive or fishermen. Accordingly, the Court concluded that Congress, in reserving the Annette Islands as a single body, intended to reserve the surrounding waters as well. “That Congress had the power to make the reservation inclusive of the adjacent waters and submerged land as well as the upland needs little more than statement”. Jd. at 87. ®The Sansonetti Opinion contrasted PLO 82's purpose with the reservation of Utah Lake. The purpose of reserving Utah Lake was to protect an irrigation reservoir, this purpose could be accomplished without reserving the lakebed. However, the purpose of PLO 82, protecting oil resources, could not be met without reserving the sub- merged land. * Had statehood been imminent, given the public exigency of protect- ing petroleum resources for the prosecution of World War II, the Sansonetti Opinion “would conclude as a necessary inference flowing from the purpose of the withdrawal, that inland submerged lands were intended to be retained in federal ownership.” Sansonetti Opinion at 34. 17 Congress, subsequent to the issuance of PLO 82 but prior to statehood, evinced a clear intent to withhold the submerged lands from Alaska. Sansonetti’s review of congressional and executive actions during the years following the issuance of PLO 82 was extensive, but can be summarized with refer- ence to certain conclusions drawn in the opinion. The Sansonetti Opinion stated: The Executive intended to defeat the future state’s title to submerged lands within the boundaries of NPR-4 and the proposed boundaries of the Arctic National Wildlife Range . . . and Congress affirmed this execu- tive intent in the Alaska Statehood Act.” Sansonetti Opinion at 80. In supporting the above conclusion, the Sansonetti Opin- ion considered PLO 1621, which issued on April 18, 1958. PLO 1621 modified PLO 82 by permitting locations and entries under the mining laws and the issuance of mineral leases certain areas of PLO 82.”° PLO 1621 continued to bar entry into NPR-4 and set aside several million acres of **NPR refers to Naval Petroleum Reserve. The United States Navy controlled petroleum reserves of approximately 23,000,000 acres lying within PLO 82 and obviously including submerged land. In 1954 the Navy indicated that it would not object to the revocation of PLO 82 so long as NPR-4 was specifically exempt. In 1955, the DOI asked the Chairman of the House Armed Services Committee for his views on the revocation of PLO 82. The Chairman “expressed his satisfaction . . . that Interior would leave intact NPR-4. Sansonetti Opinion at 44 (footnote omitted). The Arctic National Wildlife Range was redesignated as the Arctic National Wildlife Refuge pursuant to the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. § 668dd note. The areas opened to mining and mineral leasing included the area west of NPR-4 and an area between the Canning and Voiville Rivers. The Kukpowruk River lies within the opened area west of NPR-4. 18 PLO 82 for the proposed Arctic National Wildlife Range (ANWR). According to the Sansonetti opinion: By specifically citing NPR-4 and the withdrawal appli- cation for the Arctic National Wildlife Range in PLO 1621, the Executive Branch enhanced the underlying protection provided by PLO 82 by plainly demonstrat- ing the goal of retaining ANWR and NPR-4 in federal ownership. Furthermore, PLO 1621 did not revoke any prior orders, but rather was a modification of PLO 82. Thus, the modification left in place prior withdrawals such as PLO 82. Sansonetti Opinion at 45. At this point in its analysis the Sansonetti Opinion consid- ered events relevant to PLO 82 which occurred after state- hood. On December 6, 1960, the DOI established ANWR pursuant to PLO 2214, 25 Fed. Reg., 12598 (December 6, 1960). Approximately 9,000,000 acres were set aside for ANWR “subject to valid existing rights, and the provisions of any existing withdrawals [¢.g., PLO 82].” Sansonetti Opinion at 47 (citation omitted). On the same day that the DOI established ANWR, it revoked PLO 82 by PLO 2215. 25 Fed. Reg. 12599 (1960). Although PLO 82 was revoked with respect to the 48,800,000 acres originally withdrawn in northern Alaska by PLO 82, previous NPR-4 withdrawals within PLO 82 were preserved. Thus, the 23,000,000 acres of NPR-4 were not affected by the opening provided in PLO 2215. Another 5,000,000 acres were “segregated” from all forms of disposal under the public land laws ... ” for use as ANWR. Sansonetti Opinion at 48. Jd. According to the Sansonetti Opinion, “[s]ubmerged lands were included within ANWR 19 and NPR-4 by ‘necessary implication.’ ””’ Sansonetti Opin- ion at 48 (citing United States v. State of Alaska, 423 F.2d 764 (9th Cir.), cert. denied, 400 U.S. 967 (1970); United States v. City of Anchorage, 437 F.2d 1081 (9th Cir. 1971)). See infra, pp. 36-38. Returning to pre-statehood events, and specifically re- garding NPR-4, the Sansonetti Opinion found that the Executive clearly intended to reserve the area at statehood to ensure military access to the petroleum resources. The Sansonetti Opinion stated that transfer of submerged lands in NPR-4 would have frustrated any federal oil and gas program. The Sansonetti Opinion also addressed congressional in- tent to defeat state title to submerged lands in NPR-4 and ANWR. The Sansonetti Opinion concluded that congres- sional intent regarding NPR-4 and ANWR was manifested in section 6(¢) of the ASA. Section 6(¢) of the ASA excepted from transfer of real property to Alaska “lands withdrawn or otherwise set apart as refugees [sic] or reser- vations for the protection of wildlife... .” Jd.™ The Sansonetti Opinion elaborated as follows: The ANWR lands were clearly set apart (i.¢., segre- gated) as a refuge or reservation for wildlife. As such the lands were specifically withheld by section 6(c) from being transferred to the State of Alaska under the The Kukpowruk River is located outside the boundaries of ANWR and NPR-4. See United States’ memorandum in support of motion at 48, 0.12. * Section 6(¢) of the ASA provides in part: All real and personal property of the United States situated in the Territory of Alaska which is specifically used for the sole purpose of conservation and protection of the fisheries and wildlife .. . shall be transferred and conveyed to the State of Alaska . . . Provided, That such transfer shall not include lands withdrawn or otherwise set apart as refuges reservations for the protection of wildlife... . 20 equal footing doctrine because they were lands “other- wise set apart as reservations the protection of wildlife.” Furthermore, I view the earlier withdrawal status pro- vided by PLO 82, in addition to the segregative effect of PLO 1621 to preserve this area as a wildlife refuge as meeting the second prong of the Utah Lake test. Thus, section 6(e) established the affirmative intent to defeat the equal footing doctrine with respect to the sub- merged lands for ANWR. Sansonetti Opinion at 49 (citation and footnote omitted).” Regarding congressional intent with respect to submerged lands in NPR-4, the Sansonetti Opinion noted that sec- tion 11(b) of the ASA expressly withheld NPR-4 from the State of Alaska.” The Sansonetti Opinion stated that “(njeither ANWR nor NPR-4 could be administered and preserved for their primary purposes absent the inclusion of *The Izembek National Wildlife Range was established on Decem- ber 6, 1960; submerged land was not included. The Kuskokwim Wildlife Range was created on December 7, 1960, and did not include sub- merged land ANWR was also established on December 7, 1960, and did not concede state ownership to submerged land. According to the Sansonetti Opinion, the exclusion of submerged lands in the Izembek and Kuskokwim Wildlife Ranges, but failure to mention submerged lands in the creation of ANWR, “demonstrates that the [DOI] consid- ered the underlying withdrawal of PLO 82 on its own as sufficient to withhold the submerged lands within the PLO 82 area from transfer to the State.” Sansonetti Opinion at 50. *Section 11(b) of the ASA states in pertinent part: Notwithstanding the admission of the State of Alaska into the Union, authority is reserved in the United States, subject to the proviso hereinafter set forth, for the exercise by the Congress . . . of exclusive legislation . .. in all cases whatsoever over such tracts or parcels of land as, immediately prior to admission of said State, are owned by the United States and held for military, naval, Air Force, or Coast Guard purposes, including naval petroleum reserve num- bered 4.... title to submerged lands in ANWR and NPR-4. The Sansonetti Opinion next reached the following The Executive took no official action prior to Alaska Statehood on January 3, 1959, to delete from reserved status those inland submerged lands that lay within the boundaries of the PLO 82 withdrawal, but outside of NPR-4 and the proposed Arctic National Wildlife Range. Sansonetti Opinion at 80. The Sansonetti Opinion recognized that PLO 1621 amended PLO 82 to permit mining and mineral leasing, under supervision of the DOI, in two areas of PLO 82.°' The Sansonetti Opinion did not consider this action to be incon- sistent with holding the land for military purposes and with Congress’ action in the ASA in reserving jurisdiction over the lands. The Sansonetti Opinion also noted that the DOI consid- ered the land of PLO 82 to be intact at statehood. A DOI memorandum to the White House of July 4, 1958, stated: Naval Petroleum Reserve No. 4 and the area covered by Public Land Order 82 — areas already under the exclusive control of the Federal Government — contain about 48,800,000 acres. PLO 82 lands were opened to mineral entry, only, on April 16, 1958. No homestead- ing or other entry under the public land laws is permit- ted in either of these areas at the present time. Sansonetti Opinion at 54 (citation omitted). *' As noted above, the Kukpowruk River is located in one of two areas opened by PLO 1621. 22 rather than revocation, of PLO 82 by PLO 1621 implies that ownership of the land would not change at statehood. Yet the Sanswnetti Opinion did not consider this sufficient to meet the second part of the Utah Lake test. Accordingly, the Sansonetti opinion examined the ASA “to determine whether there existed an affirmative intent to defeat state title to the remainder of the submerged lands within PLO 82.” Sansonetti Opinion at 55. In addressing the above issue, the Sansonetti Opinion noted that Congress did not address the Utah Lake with- drawal in the Utah Statehood Act. In the ASA, however, Congress addressed which lands would pass to the state. The Sansonetti Opinion then reviewed relevant sections of the ASA. In section 4 of the ASA, Alaska agreed to disclaim right and title to land not granted to the state which was held by the United States. Section 5 provided that the United States would retain title to all land to which it had title “[¢)xcept as provided in section 6 ....” Section 6 of the ASA makes provision for extensive land grants to the State of Alaska, and section 6(m) made the Submerged Lands Act applica- ble in the State of Alaska. The Submerged Lands Act (SLA) codified the “equal footing” doctrine and provided that states were to take title to submerged lands beneath inland navigable waters and the marginal sea. 43 U.S.C. § 1312. The SLA was not without exceptions. The relevant exception in this case is set out in section 5(a) of the SLA. Section 5(a) states: There is excepted from the operational of sec- tion 1311 of this title — (a) all tracts or parcels of land together with all accretions thereto, resources therein, or improvements thereon, title to which has been lawfully and expressly acquired by the United States from any State or from 23 any person in whom title had vested under the law of the State or of the United States, and all lands which the United States lawfully holds under the law of the State; all lands expressly retained by or ceded to the United States when the State entered the Union (other- wise than by a general retention or cession of lands underlying the marginal sea); all lands acquired by the United States by eminent domain proceedings, purchases, cession, gift, or otherwise in a proprietary capacity; all lands filled in, built up, or otherwise reclaimed by the United States for its own use; and any rights the United States has in lands presently and ees ee ight[. SLA § 5(a); 43 U.S.C. § 1313(a) (emphasis added) .” * Of additional significance is the creation in ASA section 10(b) of the “PYK Line,” so named because the line followed generally the Porcupine, Yukon, and Kuskokwim Rivers. The “PYK Line” delineates an area from which the President of the United States may make “special national defense withdrawals .. . .” ASA § 10(a). Section 10(b) authorized: Special national defense withdrawals . . . shall be confined to those portions of Alaska that are situated to the north or west of the following line: Beginning at the point where the Porcupine River crosses the international boundary between Alaska and Canada: thence along a line parallel to, and five miles from, the right bank of the main channel of the Porcupine River to its confluence with the Yukon River, thence along a line parallel to, and five miles from, the right bank of the main channel of the Yukon River to its most southerly point of intersection with the meridian of longitude 160 degrees west of Greenwich; thence south to the intersection of said meridian with the Kuskokwim River, thence along a line parallel to, and five miles from the right bank of the Kuskokwim River to the mouth of said river, thence along the shoreline of Kuskokwim Bay to its intersection with the meridian of longitude 16 degrees 30 minutes west of Greenwich; thence south to the intersection of said meridian with the parallel of latitude 57 degrees 30 minutes north; 24 The Sansonetti Opinion summarized its discussion of the SLA and the ASA by noting that the ASA applied the SLA to Alaska, and the SLA excepted from its grant of sub- merged lands to Alaska that land “expressly retained by or ceded to the United States when the State entered the Union ... .” Sansonetti Opinion at 63 (citation omitted).” Having determined that the ASA applied the SLA to Alaska, the Sansonetti Opinion then considered whether congressional intent regarding PLO 82 could be gleaned from Alaska statehood proceedings before Congress. Not all of the salient points of the Senate and House debates need be repeated here. It is sufficient to note that according to the Sansonetti Opinion, both houses of Congress clearly under- stood that PLO 82 was an oil reserve that would remain under federal control at statehood. The Sansonetti Opinion concluded with an in-depth anal- ysis of ASA section 11(b) which “makes plain Congress’ intent to defeat state title to submerged lands which imme- diately prior to Statehood were owned by the United States thence east to the intersection of said parallel with the meridian of longitude 156 degrees west of Greenwich; thence south to the intersection of said meridian with the parallel of latitude 50 degrees north. PLO 82 lies above the PYK Line and is in the area where Alaska could not select land “without approval of the President”. ASA § 6(b). The PYK Line was reaffirmed by Congress in 1980 in the Alaska National Interest Lands Conservation Act ANILCA, 43 U.S.C. § 1635(p). In Utah Lake, the Court found that a reservation of Utah Lake had not occurred; therefore, the Court did not need to consider the SLA. “Senator Jackson stated that the “northern portion of Alaska ... is an oil reserve ... the middle area is naval and the western and castern portions ... are under Public Land Order 82.” Sansonetti opinion at 65 (citation omitted). Senator Cordon stated that “the petroleum reserve is a good reason not to grant the land in that area to the State of Alaska ....“ Id. at 66 (citation omitted). Senator Cordon added “(t]he reservation there [PLO 82] is absolute.” Jd. at 66 (citation omitted). 25 and held for military purposes.” Sansonetti Opinion at 70. Section 11(b) states as follows: Notwithstanding the admission of the State of Alaska into the Union, authority is reserved in the United States, subject to the proviso hereinafter set forth, for the exercise by the Congress of the United States of the power of exclusive legislation, as provided by article I, section 8, clause 17, of the Constitution of the United States, in all cases whatsoever over such tracts or parcels of land as, immediately prior to the admission of said State, are owned by the United States and held for military, naval, Air Force, or Coast Guard purposes, including naval petroleum reserve numbered 4, whether such lands were acquired by cession and transferred to the United States by Russia and set aside by Act of Congress or by Executive order or proclamation of the President or the Governor of Alaska for the use of the United States, or were acquired by the United States by purchase, condemnation, donation, exchange, or otherwise: Provided ... (iii) that such power of exclu- sive legislation shall rest and remain in the United States only so long as the particular tract or parcel of land involved is owned by the United States and used for military, naval, Air Force, or Coast Guard purposes. ASA § 11(b) (emphasis added). The Sansonetti Opinion noted that the lands in PLO 82 were owned by the United States immediately prior to statehood. The Sansonetti Opinion further stated that the phrase in section 11(b) “[n]otwithstanding the admission Proviso (i) of section 11(b) allows the State of Alaska to pursue (ii) establishes that the reserved lands are still considered a part of the State of Alaska. 26 of the State of Alaska into the Union” means that the impact of statehood and the equal footing doctrine are not to be considered with land subject to section 11(b). Additionally, the Sansonetti Opinion stated that PLO 82 was a withdrawal for prosecution of World War II, was in effect at statehood, and held land for military purposes. “Therefore, the submerged lands within PLO 82 meet the requirements of section 11(b) that (1) immediately prior to admission of the State they were owned by the United States and (2) immediately prior to the admission of the State they were held for military purposes.” Sansonctti Opinion at 72.” The Sansonetti Opinion indicated that the third proviso of section 11(b) was “exceedingly important.” Sansonetti Opinion at 75. As noted above, proviso (iii) terminates exclusive jurisdiction of section 11(b) lands only when the lands are no longer owned by the United States and used for military purposes. The Sansonetti Opinion reasoned that proviso (iii) “makes plain Congress’ intent to defeat state title to submerged lands within lands held for military purposes.” Jd. at 75-76. According to the Sansonetti Opin- ion, the first sentence of section 11(b) includes submerged lands because it refers to land held for military purposes, such as PLO 82. Therefore, submerged lands must be included in proviso (iii) if the military purpose of proviso (iii) is to be read consistently with the rest of section 11(b).”” * Additionally, according to the Sansonetti Opinion, the lands of PLO 82 were acquired by cession and transfer to the United States by Russia and set aside by Executive order, as specified by section 11(b). 74 “basic rule of statutory construction is that one provision should not be interpreted in a way which is internally contradictory or that renders other provisions of the same statute inconsistent or meaning- less.” Hughes Air Corp. v. Pub. Util. Comm’n., 644 F.2d 1334, 1338 (9th Cir. 1981) (citations omitted). 27 The Sansonetti opinion offered other reasons why sec- tion 11(b) defeated state title to submerged lands at state- hood: (1) Congress did not want state laws, such as state leasing requirements, to interfere with the military purposes of reserved lands; (2) exclusive jurisdiction under sec- tion 11(b) lands attaches only as long as the land is owned by the United States and used for military purposes; there- fore, section 11(b) must have defeated state title at state- hood or exclusive jurisdiction would have been impossible on submerged land held for military purposes; and (3) if section 11(b) did not defeat state title to submerged lands, then the United States would have had to compensate the State of Alaska to use the submerged lands for military purposes.”* The Sansonetti Opinion also considered the impact of ASA section 10 on section 11(b). Section 10 authorizes the President to make post-statehood national defense with- drawals north and west of the PYK Line. Section 11(b), on the other hand, reserved the power of exclusive jurisdiction in the United States over lands held for military purposes immediately prior to statehood. Section 10 did not address submerged lands and, according to the Sansonetti Opinion, was not intended to “restore” title to the United States to submerged lands. The Sansonetti Opinion reasoned that Congress defeated state title to submerged lands in sec- tion 11(b) so that it would not have to compensate the state for use of submerged lands in the event of a section 10(b) special defense withdrawal (PYK Line withdrawal).” *The Sansonetti Opinion stated that “[f]loor discussions demon- strate that Congress had no intention of paying for the acquisition of lands in northern Alaska for military purposes.” Sansonetti Opinion at 77 (footnote omitted). *The Sansonetti Opinion also reasoned that if section 11(b) did not defeat state title to submerged land reserved for military purposes north and west of the PYK Line, it would not have defeated state title to submerged land reserved for military purposes south and east of the 28 Finally, the Sansonetti Opinion considered the relation- ship between the SLA and ASA section 11(b). Sec- tion 5(a) of the SLA prohibits granting submerged land title to states if those lands were expressly retained by the United states when the state entered the Union. According to the Sansonetti Opinion, section 11(b) of the ASA constituted an express retention of submerged lands within the meaning of SLA section 5(a). Therefore, such land would not have passed to Alaska under the land grant provisions of the SLA. For all the above reasons, the Sansonetti Opinion concluded that: [T]he federal withdrawal and retention of lands under inland navigable waters within the boundaries of PLO 82 in northern Alaska met the two-pronged test set out in Utah Lake: (1) Inland submerged lands were included in the withdrawal at its creation in 1943 and remained in the withdrawal through the moment of Alaska statehood; and (2) Congress affirmatively in- tended in the Alaska Statehood Act to defeat Alaska’s title to the submerged lands within PLO 82. Sansonetti Opinion at 81. The Cross-Motions for Summary Judgment The background of this case having been discussed, the court will now consider the arguments raised in the cross- motions for summary judgment. Before reaching the Utah Lake test, the court will first consider whether the equal footing doctrine prevents Congress or the Executive from reserving submerged land to the United States, thereby defeating a prospective state’s title to that land. PYK Line. According to the Sansonetti Opinion, this would result in severe constraints on military activity centered in military bases located south and east of the PYK Line. “This awkward result makes very plain that Congress intended in section 11(b) to defeat state title to sub- merged lands in areas held for military purposes, including PLO 82.” Sansonetti Opinion at 79. 29 No court has specifically addressed whether a congres- sional or executive reservation of submerged land may defeat state title to that land. Utah Lake only assumed, arguendo, that a congressional reservation of land could overcome the strong presumption against defeat of state title. Utah Lake, 482 U.S. at 202. As previously noted, the equal footing doctrine provides that “[u]pon admission of a state to the Union, the title of the United States to lands underlying navigable waters within the state passes to it, as incident to the transfer to the state of local sovereignty, and is subject only to the para- mount power of the United States to control such waters for the purposes of navigation in interstate and foreign com- meree.” United States v. Oregon, 295 U.S. 1, 14 (1935); Shively, 152 U.S. at 26-28; Holt, 270 U.S. at 55. At statehood, title passes automatically from the United States, as trustee, to the new state. Arizona v. California, 373 U.S. 546, 597 (1963). The automatic transfer of title to submerged lands will not occur where Congress has made a conveyance to a third party prior to statehood. Utah Lake, 482 U.S. at 196-97. Although a conveyance of land to a third party necessarily defeats State title, a reservation of land to the United States does not necessarily evince an intent to defeat State title. The land could still be held for the future state. The State of Alaska argues that the United States cannot constitutionally reserve land to itself, as this would violate the equal footing doctrine. The United States argues that the Supreme Court did address the question in two cases known as the Annette Island cases. In 1891 Congress created the Annette Islands reservation for the Metlakatla Indians. The pertinent act set aside “the body of land known as the Annette Islands” for the Indians. Alaska Pac. Fisher- ies, 248 U.S. 78, 87 (1918) (citation omitted). In 1916, Alaska Pacific Fisheries erected a fish trap on the sub- 30 merged lands surrounding the island 600 feet from the high tide land. The United States sued to remove the fish trap. The principal question for decision (was) whether the reservation created by the Act of 1891 embrace(d) only the upland of the islands or include[d] as well the adjacent waters and submerged land. The question [ was] one of construction — of determining what Con- gress intended by the words “the body of lands known as Annette Islands.” Id. at 87. The Court determined that: Congress had power to make the reservation inclusive of the adjacent waters and submerged land... ; All were the property of the United States and within a district where the entire dominion and sovereignty rested in the United States and over which Congress had complete legislative authority. The reservation was not in the nature of a private grant, but simply a setting apart .. . of designated public property for a recognized public purpose .... Id. at 87-88 (citations omitted). The Court concluded by stating that the reservation included the surrounding waters as well as the uplands and that the Metlakatla were “the only persons to whom permits may be issued for erecting salmon traps at these islands.” Jd. at 90. Subsequent to statehood, the Supreme Court considered the Annette Islands reservation again in Metlakatla Indian Community v. Egan, 369 U.S. 45 (1962). In Metlakatla, the Indians filed for an injunction against interference by the State of Alaska with the Indian’s use of fish traps in water surrounding Annette Island. Neither title to submerged land nor the equal footing doctrine were mentioned in Metlakatla. Rather, the case was decided on the basis of 31 whether the State of Alaska or the DOI, pursuant to the 1891 Act which set apart the reservation, controlled fishing adjacent to Annette Island.” The case was remanded to the Alaska Supreme Court where the DOI could determine what authority it would exercise regarding fishing rights. Although Alaska Pac. Fisheries discussed federal reserva- tions of submerged lands, that case, along with Metlakatla, were ultimately fishing rights cases. This court concludes that in the Annette Island cases the Supreme Court did not decide whether Congress could reserve land to itself without violating the equal footing doctrine. The United States argues that even if the Supreme Court has not decided whether Congress can reserve submerged lands to itself, the Ninth Circuit has decided the issue. In United States v. State of Alaska, 423 F.2d 764 (9th Cir.), cert. denied, 400 U.S. 967 (1970), the court considered an action to quiet title to lands under Tustumena Lake, located in the Kenai Moose Range in Alaska. The Kenai Moose Range was established by Executive order in 1941 to protect the Kenai moose. After oil was discovered on the Kenai Peninsula, the southern half of the Kenai Moose Range was closed to leasing. The court stated that upon considering the “factual atmosphere in which the Kenai Moose Range was created”, the withdrawal order clearly included land under navigable water. Jd. at 766-67. Moose are semi-aquatic; therefore, water and submerged lands are essential to the continued existence of the “bulls and cows of this noble group . . . .” Jd. at 767. The court held that the equal footing doctrine notwithstanding, the United States, while holding Alaska as a territory, had sovereign power to reserve land to itself which might otherwise go to a state on its admission to the Union. /d. at 767-68, (citing “The 1891 Act stated that the Metlakatla Indians could use the Annette Islands pursuant to rules and regulations prescribed by the Secretary of Interior. Metlakatla, 369 U.S. at 44. 32 United States v. Holt State Bank, 270 U.S. 49 (1926); Shively v. Bowlby, 152 U.S. 1 (1894)). Similarly, in United States v. City of Anchorage, 437 F.2d 1081 (9th Cir. 1971), the court considered an action to quiet title to certain tidelands and submerged lands near the Alaska Railroad’s terminal reserve land in Anchorage. The Alaska Railroad was created pursuant to congressional au- thorization by Executive order in 1915. In quieting title, the court considered issues similar to those at issue here: (1) [W]hether the Alaska Railroad Act, as imple- mented by the Presidential Order of August 31, 1915, reserved for use of the Alaska Railroad as a terminal, by necessary implication, the tide and submerged lands immediately adjacent to and contiguous with the ordi- nary highwater mark on the eastern shore of Knik Arm and also the tidelands and bed of Ship Creek within the exterior boundaries of the terminal reserve; and (2) whether title to these lands remained in the United States after the admission of Alaska into the Union on January 3, 1959. Id. at 1083. The court held that both Congress and the President intended to reserve the land in question because construc- tion of docks, wharves, and harbor facilities on the sub- merged land was essential to connect ocean-going transportation to the railhead and, therefore, essential to the development of Alaska. The court held that the second question was “of necessity, resolved against [the state] in our disposition of the first point and by our decision in United States v. State of Alaska. . . .” Id. at 1085. The court stated further: The establishment of the Alaska Railroad was one of those “exceptional circumstances” falling within the exception to the general rule stated in United States v. Holt State Bank, 270 U.S. 49, 55... . (1926) and 33 Shively v. Bowlby, 152 U.S. 1, 49-50 . . . (1894). Beyond question, the establishment of the railroad was ee oo Sab Giaes was eras te Gone 437 F.2d at 1085. Accordingly, the court quieted title in the United States to the tidelands and submerged lands. See also Alaska v. Ahina, Inc., 891 F.2d 1401, 1406 (9th Cir. 1989), cert. denied, 495 U.S. 919 (1990) (“The federal government has the power to convey a Territory's lands underlying navigable waters prior to that Territory becoming a State, thereby defeating the future State's right to the lands. The Govern- ment could probably likewise reserve unto itself the same =e. to by a peace omitted). dissent" expressed “confiden[ce] that Congeums has the power to prevent ownerihip of land under lying a navigable water from passing to a new State by reserving the land to itself for an appropriate public purpose -. ++" 482 U.S. at 209. The dissent stated further that “there is no reason to distinguish between a conveyance to a third party required for can appropriate public] purpose and a reservation unto the United States for the same purpose.” Id. at 210. The dissent regarded reservations to be more constitutionally permissible than conveyances because “if Congress later determines that the lands are no longer needed by the Federal Government for a public purpose, it can at that time transfer title to the State.” Jd. at 210. Although the Supreme Court has not specifically held that Congress may defeat a state’s claim to title by a federal reservation or withdrawal under navigable waters, such res- ervations were at least contemplated in Utah Lake. The court holds that Congress may reserve submerged land to itself and defeat a future state's title to such land, pursuant 34 to the Property Clause of the Constitution, so long as the reservation meets the two-part Utah Lake test. Having so decided, the court must now apply Utah Lake to PLO 82. The court begins this portion of its analysis with the strong presumption that the State of Alaska, pursuant to the equal footing doctrine and the SLA, took title to submerged lands in Alaska. The first question for resolution is whether Congress clearly intended to reserve the submerged lands in PLO 82. Utah Lake, 482 U.S. at 202. Clear intent is established upon a showing that Congress “definitely declared or otherwise made very plain” an intent to reserve the submerged lands. Id. at 207 (citations and internal quotations omitted). As previously noted, PLO 82 withdrew “all public lands” in northern Alaska “from sale, location, selection, and entry under the public land laws of the United States, including the mining laws, and from leasing under the mineral-leasing laws... .” PLO 82; 8 Fed. Reg. 1599. Additionally, the minerals of PLO 82 were reserved “for use in connection with the prosecution of the war.” Jd. The meaning of “public lands” as referenced in PLO 82 is disputed by the parties. The State of Alaska argues that “public lands” has been consistently defined as lands subject to sale or other disposal under general laws, unless other meaning is clear from the legislation. See Utah Lake, 482 US. at 206 (“Most enduringly, the public lands have been defined as those lands subject to sale or other disposal under the general land laws.”) (citation omitted); Borax, Lid. v. Los Angeles, 296 U.S. 10, 17 (1935) (“the term ‘public lands’ [does] not include tidelands”) (citation omitted); Minnesota v. Hitchcock, 185 U.S. 373 (1902); Barker v. Hardey, 181 U.S. 481 (1901); Mann v. Tacoma Land Co., 153 U.S. 273, 284 (1894) (“It is ee islation of in respect to pu ae dao eee" Newhall v. Sanger, 92 U.S. 761, 763 (1875) (“The words ‘public lands’ are habitually used in our 35 legislation to describe such as are subject to sale or other disposal under general laws.”).“* The State of Alaska argues that tidelands and inland submerged lands are not subject to sale or other disposal under the general laws and, therefore, are not “public lands.” Accordingly, the State of Alaska argues that to interpret “public lands” as including sub- merged land, absent clearly expressed intent to do so, would violate the equal footing doctrine. The United States argues that the technical meaning of “public lands” is irrelevant. Rather, the United States ar- gues, the meaning of “public lands” must be determined by reference to the context within which the term is used. According to the United States, the important consideration is the meaning of “public lands” as used in PLO 82. The United States refers to Hynes v. Grimes Packing Co., 337 U.S. 86 (1949), in which the Supreme Court held that the statutory authority of the Secretary of the Interior to with- draw “public lands” as reservations for Alaska Natives included the authority to reserve adjacent submerged lands. Similarly, in Alaska Pac. Fisheries, 248 U.S. at 89, the court, in considering whether “the body of lands known as the Annette Islands” included submerged lands, stated: As an appreciation of the circumstances in which words are used usually is conducive and at times is essential to a right understanding of them, it is important, in approaching a solution of the question stated, to have in mind the circumstances in which the reservation was created — the power of Congress in the premises, the location and character of the islands, the situation and needs of the Indians and the object to be attained. “In addition to the cited cases, the State of Alaska refers to various decisions by the DOI and the Department of Agriculture, and legal briefs filed by the United States in other litigation which, state that tidelands are not public lands belonging to the United States. See State of Alaska’s brief in support of motion at 32-35 (Clerk’s Docket No. 94). 36 Id. 87. As noted above, the court concluded that, given the circumstances, the “body of lands” included submerged lands. Finally, in United States v. Alaska, the court, in consider- ing submerged lands within the Kenai Moose Range, stated: In construing the pertinent Alaskan statutes, the courts have consistently held that the words “public domain”, and public lands” and “land”, include land under water. Moore v. United States, 157 F.2d 760 (9th Cir. 1946), cert. denied, 330 U.S. 827 [ ); Alaska Pacific Fisher- ies v. United States, 248 U.S. 78 ... (1918); Hynes v. Grimes Packing Co., 337 U.S. 86... (1949). United States v. Alaska, 423 F.2d at 766. The court stated further that “one of the most important factors in resolving the meaning of the pertinent language is to place ourselves, insofar as possible, in the posture of the President and surround ourselves with the factual atmos- phere in which the Kenai Moose Range was created.” /d. at 766-67. The court concludes that the meaning of the term “public lands” should be drawn from the context of the language of PLO 82 and the factual circumstances in existence at the time PLO 82 issued.” “The dissent in Uiah Lake contains a pertinent discussion on the meaning of “public lands.” The majority . . . alights on the phrase “public lands.” That phrase, according to the majority, means “lands subject to sale or other disposal under the general land laws.” ... This interpretive ap- proach is inconsistent with our recent opinion in Amoco Production Co. v. Gambell, 480 U.S. 531, 549, 2.15... (1987), where we “reject{ed] the assertion that the phrase ‘public lands,’ in and of itself, has a precise meaning, without reference to a definitional section or its context in a statute.” The most natural interpretation of “public lands” in this context is simply lands to which the Federal Government holds title. In Choctaw Nation v. Oklahoma, 37 The court will next consider whether “public lands,” as used in PLO 82, included submerged lands. The meaning of “public lands” in PLO 82 is dependent, in part, upon the purpose of PLO 82. The parties do not dispute that the purpose of PLO 82 was to preserve minerals for the prosecution of World War II. The sheer magnitude of that global conflict required all of the resources which the United States could muster. Moreover, at the time PLO 82 was issued in January of 1943, the war’s duration was in doubt. Thus, a steady supply of oil was essential if the United States was to fight across two oceans and supply war resources to her allies. In short, a more extraordinary case of “international duty or public exigency” has never existed in American history. Utah Lake, 482 U.S. at 197. PLO 82 did not need to specify “submerged lands” to make its intent clear. The lands were specifically withdrawn and “minerals in such lands” were specifically reserved “for use in connection with the prosecution of the war.” 8 Fed Reg. 1599 (1943). Had PLO 82 not intended to include submerged lands, the reservation would have been nearly worthless. Water covers millions of acres of the North Slope, yet in 1943 it was unknown which water bodies were navigable and constituted submerged lands. Failure to with- draw submerged lands would have led to uncertainty regard- ing the withdrawal status of large portions of the North Slope. Additionally, “oil is a fugacious mineral, the movements of which are not confined by the artificial boundaries of surface tracts [thus a] gap [exists] between the geological nature of the oil pool and the formal surface rights of the lessees .. .” Railroad Comm'n of Texas v. Rowan & Nichols Oil Co., 310 U.S. 573, 579 (1940). Pursuant to the “rule of 397 U.S. 620, 633... (1970), for example, we stated that “the United States can dispose of lands underlying navigable waters just as it can dispose of other Public lands.” Utah Lake, 482 U.S. at 212 2.4 (White, J., dissenting). 38 capture” a lessee’s interest is subject to “his neighbors’ power to drain his oil away.” Jd. PLO 82’s clear intent to reserve submerged land was established, in part, by the need for the United States to protect itself from another’s capture rights. The purpose of PLO 82 provides clear evidence that submerged lands were reserved. The manner in which the PLO 82 boundaries were drawn provides additional evidence that PLO 82 clearly intended to reserve submerged lands. The United States argues that PLO 82 was carefully drawn to include submerged lands within its boundaries, leaving no doubt as to the intention to include submerged lands. The Alaska Peninsula portion of the withdrawal, for example, specifically included Iliamna Lake, but excluded Lake Clark. Similar water boundaries mark the Katalla-Y akataga portion of the withdrawal. The United States argues that the care with which water boundaries were drawn leaves no doubt that PLO 82 was intended to include all submerged lands within its boundaries. The State of Alaska does not refute this argument. The fact that PLO 82 expressly included some water bodies and expressly excluded others is not instructive as to DOI intent with respect to all of the unnamed water bodies. The parties dispute the significance of the Mineral Leas- ing Act (MLA), 41 Stat. 437 (1920), on PLO 82. The MLA was in effect in 1943 and permitted oil and gas leasing of: [ L ]lands containing such deposits owned by the United States, including those in national forests, but exclud- ing lands . . . known as the Appalachian Forest Act, and those in national parks, and in lands withdrawn or reserved for military or naval uses or purposes... . 41 Stat. 437; 30 U.S.C. § 181 (1920). The United States argues that because the statute allowed leasing of lands owned by the United States, but did not 39 allow leasing on lands withdrawn for military and naval uses, considerable confusion existed as to the applicability of the MLA to submerged lands in territories. The State of Alaska argues that submerged lands were subject to the MLA, and that the Secretary of the Interior had discretion under the MLA to refuse to issue permits to prospect for oil. Thus, according to the State, PLO 82 did not need to protect submerged lands which the Secretary on Interior could protect by refusing to issue exploration permits. In response, the United States argues that in 1943 issuance of MLA leases was delegated to local land offices and local officials had issued leases to submerged lands.“ Consequently, the United States argues, PLO 82 necessarily withdrew sub- merged lands to eliminate any confusion which may have existed regarding the propriety of leasing such lands. The arguments regarding the MLA underscores the court’s earlier discussion of the purpose of PLO 82 in protecting oil resources for the prosecution of World War II. At a minimum, there was uncertainty regarding the effect of the MLA on the submerged land of PLO 82. Given that the extent of the submerged lands in PLO 82 was unknown and the United States needed to protect vast oil resources for the ae ne, mane Sate Gi SUD 6 wanld and Ge confusion protect the resources by reserving all of the submerged lands of PLO 82. ” “In the 1920s, permits were issued in the vicinity of Smith Bay. 86 Interior Dec. at 167. By 1938, all tidelands throughout the Alaska — ee ae ae 6 oe 588 “ In a November 20, 1942 memorandum, the commissioner of the General Land Office, Department of Interior, described the private interest in the PLO 82 regions: There are in the areas described in the proposed order approxi- mately 360 patented entries embracing about 3,000 acres, 64 oil and gas leases embracing approximately 137,006 acres, and about 105 oil and gas lease applications embracing approximately 84,000 40 The court concludes that the term “public lands” in PLO 82 can be defined according to context and factual circum- stances. Here, the context and factual circumstances, as discussed above, indicate that “public lands” in PLO 82 included submerged lands. In plain and simple terms, there was a war on, and the United States had an extraordinary need to protect all resources within its power. The stated purpose of PLO 82 alone “made [it] very plain” that PLO 82 “clearly intended” to include submerged land. Utah Lake, 482 U.S. at 202. The purpose, combined with the other issues discussed above, establishes that PLO 82 clearly intended to include navigable water. Since the court has found that the Secretary of the Departmen‘. of the Interior issued PLO 82 with the intent to include submerged lands, the court must still determine whether the Secretary may be considered to have spoken for Congress in expressing the intent of PLO 82. Utah Lake, 482 U.S. at 202. PLO 82 was an Executive withdrawal issued by the Secretary of the Interior pursuant to a delega- tion of authority by President Franklin D. Roosevelt. The Utah Lake test, however, refers to the intent of Congress,“ not the Executive. In United States v. Midwest Oil Co. 236 U.S. 459 (1915), the Supreme Court recognized that Congress “has a legisla- tive power over the public domain” and that the Executive Branch, as Congress’ agent “was in charge of the public domain”. Jd. at 474, 475. Thus, the Executive Branch acts as the agent for Congress in exercising constitutional author- ity over the public domain. Jd. at 475. Midwest Oil held that acres. If and when this order is signed the lease applications will be rejected. Attached as Exhibit B to the Krulitz opinion, 86 Interior Dec. 151. “ The Supreme Court so says in Utah Lake, even though Utah Lake was in fact withdrawn from public domain by the United States Geological Service, albeit pursuant to an express act of Congress. PLO 82 was not authorized by a specific congressional enabling act. 4l the Executive Branch had authority to withdraw land as an oil and gas reserve because Congress had acquiesced in the long history of Executive management of public lands. The State of Alaska argues, without definitive supporting case law, that Congress has never acquiesced in the with- drawal of submerged lands. Yet, in Alaska Pac. Fisheries v. United States, 248 U.S. 78, 80 (1918), the Supreme Court rejected the appellant’s attempt to distinguish Midwest Oil and appellant’s argument that the President lacked authority to reserve submerged lands.’ Alaska Pac. Fisheries affirmed the lower court’s decision which specifically recognized that the President may “reserve public lands and adjacent waters for useful purposes without being authorized to do so by express statute. 240 F. 274, 280 (9th Cir. 1917) (emphasis added). See also United States v. Alaska, 423 F.2d 764 (9th Cir.), 400 U.S. 967 (1970), which recognized that the Executive had the authority “prior to Alaskan statehood to withhold, withdraw or convey the land and water for any valid purpose.” Jd. at 766. In United States v. Alaska, the court recognized the validity of a withdrawal by President “Appellant in Alaska Pac. Fisheries argued: This [situation] is quite different from a withdrawal from entry of public land. United States v. Midwest oil Co. 236 U.S. 459. The respecting navigable waters or fisheries; and the common law, in the light of which the Constitution must be considered, recognized no such right in the King. The fisheries in the navigable waters belong to the people at large. The Government has no interest therein which it can reserve for the use of any individual or class. The President cannot include such waters in an Indian reservation. United States v. Ashton, 170 Fed. Rep. 509. Alaska Pac. Fisheries 248 U.S. at 80. “ The Ninth Circuit followed this proposition with a discussion of Midwest Oil. Hynes v. Grimes Packing Co. 337 U.S. 86 (1949), referenced both Alaska Pac. Fisheries and Midwest Oil in discussing the nny S CERay CRD eeReaNgES tans puemaas to Gane 42 Roosevelt of iands underlying inland navigable water in the Kenai National Moose Range as a wildlife refuge in Execu- tive Order 8979 pursuant to “the authority vested in me as President of the United States...” Id. at 765 (citation omitted). Accordingly, the Secretary of the Interior had the power to withdraw submerged lands of PLO 82. For the above stated reasons, the court concludes that Congress acquiesced in the withdrawal of the submerged lands in PLO 82. Furthermore, Congress, through the Exec- utive Branch as its agent, expressed a clear intent to reserve the submerged lands of PLO 82 as a matter of international duty and public exigency. Accordingly, the court concludes that the United States has satisfied the first prong of the Utah Lake test. The court will next consider the second prong, whether Congress affirmatively intended to defeat Alaska’s title to the submerged land of PLO 82. At this point, it is worthwhile to quote at length a conclusion reached in the Sansonetti Opinion: Applying the second prong of the Utah Lake test to the withdrawal in 1943, had statehood been imminent, | would conclude as a necessary inference flowing from the purpose of the withdrawal, that inland submerged “The State of Alaska states that in 1983, the Ninth Circuit found that Midwest Oil's theory that a long and continuous practice is entitled to a presumption of validity, no longer represents the thinking of the Supreme Court. United States v. Woodley, 7126 F.2d 1337 (9th Cir. 1983). The Woodley opinion, however, was withdrawn (732 F.2d ill (9th Cir. 1984)), and a second Woodley opinion stated [t]he United States Supreme Court has made clear that considerable weight is to be given to an unbroken practice, which has prevailed since the inception of our nation and was acquiesced in by the Framers of the Constitution when they were participating in public affairs.” United States v. Wood- ley, 751 F.2d 1008, 1012 (9th Cir. 1985). The Ninth Circuit stated that the above principle was reaffirmed in INS v. Chada, 462 U.S. 919 (1983), and Marsh v. Chambers, 463 U.S. 783 (1983). In any event, congressional reservation of submerged land, so long as it satisfies the Utah Lake test, is not contrary to the Constitution. 43 lands were intended to be retained in federal ownership. However, no petitions seeking statehood were pending before Congress when PLO 82 was issued on January 3, 1943. In fact, only one statehood bill had even been introduced in Congress up to that time —in 1916, some twenty-seven years before the issuance of PLO 82. A thorough review of the Departmental files from this period found at the National Archives has been conducted. The review has produced no evidence to suggest that Acting Secretary Fortas had even con- sidered the effect of this withdrawal on the title to submerged lands upon future statehood, let alone for- mulated an intent to defeat the future state’s title to submerged lands located therein. Thus, the second prong of the Utah Lake test had not been met as of the date of the original withdrawal. Because the second prong of this test was not met at the time PLO 82 was issued, and with the termintion of World War II upon which the original withdrawal was grounded, it is necessary to determine whether the Executive, Congress, or both, subsequently formulated a clear intent to withhold the submerged landds within this withdrawal from a future state. Sansonetti Opinion at 34-35 (footnotes omitted). The parties do not dispute that intent to defeat state title to the submerged lands in PLO 82 cannot be established at the time of the PLO 82 withdrawal. The court concludes that when PLO 82 issued in 1943, neither Congress nor the Executive expressed an intent to defeat State title to sub- merged land within PLO 82. Congress’ failure to express intent to defeat State title in 1943 raises an issue which whether Congress’ intent to defeat State title must be expressed contemporancously with congressional intent to reserve submerged lands. aes Utah Lake does not specifically address this issue, but did consider events, such as the 1890 Act, which occurred subsequent to the initial “reservation” of the bed of Utah Lake. Moreover, in Choctaw, the only case in which the Supreme Court has “concluded that Congress intended to grant sovereign lands to a private party” (Utah Lake, 482 U.S. at 198), the Court considered events which ranged from the end of the Revolutionary War through Oklahoma statehood in 1906. Choctaw, 397 U.S. at 622-627. This court concludes that congressional intent to defeat state title to submerged lands may be determined from events occurring subsequent to the issuance of PLO 82. The subsequent events in question center around the Alaska Statehood Act through which the United States argues Congress express::d clear intent to defeat state title to the submerged lands of PLO 82. As an initial matter, the State of Alaska argues that Congress cannot retain sub- merged land as a condition of statehood, as this would violate the equal footing doctrine. Section 4 of the ASA provides in part: As a compact with the United States said State and its people do agree and declare that they forever disclaim all right and title to any lands or other property not granted or confirmed to the State or its political subdi- visions by or under the authority of this Act, the right or title to whic* is held by the United States... . According to the Sansonetti Opinion, section 4 of the ASA makes clear that Alaska statehood was conditioned upon disclaiming right and title to lands not granted or confirmed in the ASA. Sansonetti Opinion at 57. The State of Alaska argues that Congress cannot use a statehood compact to grant a state less than full sovereign rights. In support of its argument, the State of Alaska refers to Pollard’s Lessee v. Hagan, 44 U.S. 212 (1845), in which the issue was whether a federal patent, issued after Alabama’s admission to the Union, could validly convey submerged 45 lands within Alabama’s boundaries. The plaintiff argued that Alabama did not take title to submerged lands at statehood because the statehood act provided that all navi- gable waters shall forever “remain public highways, free to the citizens of the said State, and of the United States... .” Id. at 229. The Court rejected plaintiff's argument, stating that “Alabama has been admitted into the union on an equal footing with the original states, the constitution, laws, and compact, to the contrary notwithstanding.” Jd. The Court concluded, pursuant to the equal footing doctrine, that: [T]o Alabama belong the navigable waters, and soils under them . . . and no compact that might be made between her and the United States could diminish or enlarge these rights. Id. In Corvallis Sand & Gravel, 429 U.S. 363 (1977), the Supreme Court stated that Pollard’s Lessee “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.” Corvallis Sand & Gravel, 429 U.S. at 374 (footnote omitted). - Pollard's Lessee and Corvallis Sand & Gravel are not applicable to the case at bar because they did not involve a congressional conveyance or reservation of land prior to statehood.” Choctaw, however, is applicable. In Choctaw, *Pollard’s Lessee was premised on the now faulty principle that the equal footing doctrine absolutely prohibited Congress from taking any steps to defeat a prospective State's title to submerged land. Shively “disavowed the dicta in Pollard’s Lessee, and held that the Federal Government had the power, under the Property Clause, to convey such land to third parties...” Utah Lake, 482 U.S. at 196. Pollard’s Lessee remains viable to the extent recognized in Corvallis Sand & Gravel that Congress cannot defeat state title to submerged land after statehood, because “title . . . acquired by the State is absolute so far as any federal 46 the Supreme Court noted that Oklahoma was admitted to the Union “‘on an equal footing with the original States,’ conditioned on its disclaimer of all right and title to lands ‘owned or held by any Indian, tribe, nation.”” Choctaw, 397 U.S. at 627 (quoting Act of June 16, 1906, §§ 3, 4, 34 Stat. 270, 271). According to Choctaw, and contrary to the State of Alaska’s argument, admission of a state into the Union can hinge upon the state’s disclaimer of certain submerged land. The State of Alaska cites Coyle v. Oklahoma, 221 US. 559 (1911), for the proposition that Congress may not impose conditions upon the entry of a state into the Union, if those conditions would be invalid and ineffective if enacted after the state was admitted. In Coyle, the Court addressed a provision in the Oklahoma Enabling Act which required that the state capital be temporarily located in Guthrie, Oklahoma. The Court held that the provision violated the equal footing doctrine because: The power to locate its own seat of government and to determine when and how it shall be changed from one place to another, and to appropriate its own public funds for that purpose, are essentially and peculiarly state powers. Coyle, 221 U.S. at 565. Coyle further found that the power to locate a state capital was neither referable to any power granted to Congress nor implicit in the congressional power to admit new states. Jd. at 574. Pursuant to the equal footing doctrine, the Oklahoma state legislature had the power to locate its own seat of government notwithstanding any contrary provisions in the state’s enabling act.*' principle of land titles is concerned.” Corvallis Sand & Gravel, 429 U.S. at 374 (emphasis added) (referring to the “rule laid down in Pollard’s Lessee"). *'Coyle noted, however, that Congress probably had the power to enact Statehood acts with “regulations touching the sole care and The next question is whether Congress did in fact clearly express its intent in the ASA to defeat state title to the clarify its intent to defeat state title to submerged lands held for military purposes. ASA § 11(b). The United States argues that the third proviso of section 11(b) is “exceed- ingly important” because “it ties exclusive jurisdiction to parcels owned by the United States.” United States memo- randum in support of cross-motion at 50.°? The United States also argues that sections 11(b) and 11(b) disposition of the public lands or reservations therein _. .” le US. at $74. a "Clerk's Docket No. 96. 48 ii) cannot be read consistently with one another unless Ses intended to Gufeat canta Gite to FL lands. The United States argues further that if section did not defeat state title to submerged lands for military purposes, then the submerged lands in every military facility in Alaska passed to Alaska at statehood. If that were the of Alaska argues that section 11(b) addresses State of Alaska argues that the purpose of section 11 (b) was to assure that the state would not impose laws inconsistent with the military functions of PLO 82. Thus, the State of Alaska argues, ASA section 11(b) (ii) provided that the State of Alaska and the United States would exercise concurrent jurisdiction over PLO 82. Regarding section 11 (b) (iii), the State of Alaska argues that it was designet to limit section 11(b), not broaden it beyond the power Next, the State of Alaska argues that Congress did not defeat state title to submerged lands at statehood because such was not absolutely necessary to the purpose of PLO 82. The State of Alaska argues that if the United States were concerned about state interference in any military purpose references the ‘In further support of its argument, the United States comments of several individuals during hearings leading up to statehood. Senator Cordon stated “the petroleum reserve is « good reason not to grant the land in the area to the State of Alaska” and [t]he reservation there is absolute.” United States memorandum in support of cross- motion at 52 (Clerk’s Docket No. 96) (citations omitted) Senator Smathers stated that “no company or individual can go in ‘there. Id. at $1 (citation omitted). 49 for which PLO 82 was retained, those purposes were pro- tected by SLA section 6(a). The United States argues, however, that section 6(a) merely restates the traditional rights the United States has in controlling navigation. Addi- tionally, SLA section 6(b) requires Congress to pay for submerged lands if needed “[i]n time of war or when necessary for national defense ... .” 43 U.S.C. § 1314(b), but the United States argues that Congress had no intention of condemning the submerged lands of PLO 82 for military use. The impact of the SLA on the ASA is interwoven throughout the parties’ arguments and warrants further discussion. The SLA is made applicable to the ASA pursu- ant to section 6(m) of the ASA. The United States argues that section 11(b) of the ASA demonstrates that intended to defeat state title to PLO 82 submerged lands and, therefore, demonstrates an express retention of sub- merged lands within the meaning of section 5(a) of the SLA. SLA section 5(a) provides an exception to the general principle of the SLA that title to submerged lands is to vest in the respective states. The United States argues that section 11(b) of the ASA and section 5(a) of the SLA operate together in ¢ . Congress’ intent to defeat state title to the submerged lands of PLO 82. The United States also argues that section 5(a) of the SLA operates in conjunction with section 4 of the ASA in establishing congressional intent on PLO 82 sub- merged lands. ASA section 4 states: As a compact with the United States said State ... forever disclaim{s] all right and title to any lands or other property not granted or confirmed to the State under authority of this Act, the right or title to which is held by the United States. ... ASA § 4 (emphasis added). The United States argues that the PLO 82 lands were “expressly retained” under SLA section 5(a) 50 beds of navigable waters within their boundaries as against any claim of the United States Government. i defeating state title to submerged land. Submerged lands subject to the “expressly retained” standard of section 5(a) are also subject to analysis under the “clearly intended” submerged lands. Utah Lake, 482 U.S. at 197 (citation omitted). The undisputed fact that Congress, when promul- In 1958 when the ASA was under consideration (as well as in 1943 when PLO 82 was issued), Congress was aware 51 of both Shively and Holt State Bank, and the requirement of the equal footing doctrine that territorial submerged lands are held for the ultimate benefit of the future states. Con- gress was also aware that, in order to defeat state title, it must make such intent very plain. To avoid the equal footing doctrine, Congress must use “clear and especial words” (Martin v. Waddell’s Lessee, 41 U.S. 367, 411 (1842)) which “embrace[] the lands under the waters of the stream” (Packer v. Bird, 137 U. S. 661, 672 (1891)). Section 6(m) of the ASA extends the SLA to the State of Alaska. The ASA does not expressly identify PLO 82 as an exception to the operation of section 6(m). This is the single most important piece of evidence that Congress never in- tended the ASA to defeat State title to PLO 82 lands. Like the 1888 Act in Utah Lake, “the broad sweep of [the ASA] cannot be reconciled with an intent to defeat the ASA, nor the SLA, whether considered separately or together, contain the type of specific language which the Supreme Court requires if Congress is to overcome defeating state title to submerged land. The single case in which the Supreme Court concluded that Congress intended to defeat State title to submerged land was Choctaw. In Choctaw, one of the treaties specifically stated that “no part 52 demonstrates the type of specific language necessary to overcome the strong presumption against defeating state tle to submerged lands. Here, it is undisputed that PLO 82 as promulgated was not intended to defeat State title to submerged lands in PLO 82. To draw the opposite conclu- sion from either the ASA or the SLA would be antithetical to the equal footing doctrine. Congress simply did not clearly state in the ASA that it intended to defeat the State of Alaska’s title to PLO 82 submerged lands.” The court also notes that in 1958 PLO 1621, which opened the area west of NPR-4 (where the Kukpowruk River flows) to entries under the mining laws and issuance of mineral leases, and SLA section 6(b), which gives the United States the right of first refusal to purchase natural resources or to acquire submerged lands, emasculate the original purpose and need for PLO 82. PLO 1621 authorized leasing and development of some of these submerged lands, but the United States still had the right to acquire the oil under the SLA. ‘SNeither the PYK line (section 10 of the ASA) nor section 11(b) can fairly be read as a congressional reservation of title to any particular submerged land. Section 10 does not mention PLO 82 or submerged i : E | i sections 10 and 11(b) do aot provide clear statements of congressional intent that PLO 82 submerged lands should be exempted from the provisions of the eqwal footing doctrine or the SLA 53 The United States argues that comments by certain debate provide evidence that Congress clearly intended to defeat state title to the submerged lands of PLO 82. Senator Cordon, for example, stated that “[t]he reservation there is absolute.” United States’ memorandum in support of cross- motion at 52% (citations omitted). Those portions of the statehood debate referenced by the United States very likely involved Congress’ concerns regarding state selections from public lands in Alaska. As long as PLO 82 remained in force, the lands within that reservation could not be selected by the state under the land grant provision of the ASA.” The court finds nothing in the portions of the statehood statehood debate simply did not mention the equal footing doctrine or congressional intent to defeat state title to the submerged lands of PLO 872. The failure of Congress to make its intentions clear ends the court’s inquiry. It is inappropriate for the court to engage in the type of speculation and conjecture advocated by the United States in attempting to explain the intent of Con- gress. The United States’ speculative arguments if credited at all prove only one thing, that the ASA is subject to varying interpretations. As noted by the State of Alaska, in quoting The Binghampton Bridge, 70 U.S. at 51, 83 (1865): [T]he fact that it required so iigenious and labored an argument by my learned brother, to vindicate such * Clerk's Docket No. 96. The ASA, sections 6(a) and 6(b), awthorized the State of Alaska to select over |00 million acres “from the pulliic lands of the United States in Alaske which are vacant, unappropriated and unreserved at the time of their sélection.” 54 construction of the act [is], of itself, conclusive evi- dence that the construction should not be given to it. Id. The same is true in the case at bar. The United States’ arguments are ingenious and labored, but they simply do not demonstrate a plain congressional intent to defeat state title to PLO 82 submerged lands. The United States’ arguments require the court to work through layers of conjecture and draw numerous inferences, yet the court cannot “lightly infer a congressional intent to defeat a State’s title to land under navigable waters ... .” Utah Lake, 82 U.S. at 197. The United States attaches talismanic significance to sections 11(b) and 11(b) (iii) of the ASA, yet these sec- tions 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 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). This court concludes that the United States’ concession that PLO 82 did not evince an intent to defeat state title to the submerged lands in question is the single most important piece of evidence for purposes of resolving this case. This evidence is dispositive of the case given the absence of a congressional act (or act of the DOI as agent for Congress), subsequent to PLO 82 but prior to For example, the United States argues that “Congressional intent to retain in federal ownership the submerged lands within defense with- drawals is very plain because the State's contrary interpretation would so clearly and seriously frustrate congressional intent in § 11(b).” United States’ reply at 23. This argument, of course, begs the question of what precisely was Congress’ intent, and underscores the United States inability to point to “clear and especial” words which make very plain Congress’ intent regarding PLO 82. 55 statehood, evincing the affirmative intent to defeat the future state’s title to submerged lands.” The parties have devoted a substantial portion of their arguments to events which occurred after statehood. Partic- ular significance is attached to PLO 2214, 25 Fed. Reg. 12,598 (Dec. 9, 1960), which established the Arctic Na- tional Wildlife Range, PLO 2213, 25 Fed. Reg. 12,597 (Dec. 9, 1960), which established the Kuskokwim National Wildlife Range, and PLO 2216, 25 Fed. Reg. 12,599 (Dec. 9, 1960), which established the Izembek National *The parties dispute whether the court should give deference to the Krulitz and Sansonetti Opinions. When faced with the issue of statutory interpretation, such as the ASA or the SLA, the district court generally grants substantial deference to the interpretation of the agency chaiged with the statute’s administration. Udall v. Tallman, 380 U.S. 1, 16 (1965). “When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order.” /d. The court declines to grant deference to the solicitors’ opinions. Ultimately, both opinions purport to interpret the Alaska Statehood Act, yet the DOI is not charged with implementing or administering the ASA. Additionally, both opinions were issued years subsequent to the issue of PLO 82 in 1943, and neither opinion “involve[d] a contempora- neous construction of a statute by the men charged with the responsibil- ity of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.” /d. (internal quotation marks and citation omitted). Moreover, the San- sonetti Opinion was rendered in the course of this litigation, and must therefore be regarded as potentially an advocate's view. The opinions are also not entitled to deference because they reached unreasonable conclusions based upon misapplication of the law regarding the equal footing doctrine. Finally, as argued by the State of Alaska and undisputed by the United States, the Supreme Court in Utah Lake applied « de novo standard of review in determining whether Congress clearly intended to reserve the bed of Utah Lake and defeat state title thereto. Deference to the Interior's position in Utah Lake would have resulted in a distinctly different conclusion. Granting de/er- ence te the solicitors’ unreasonable opinions would eviscerate the equal footing doctrine. 56 Wildlife Range. Each of these land orders were filed on December 8, 1960. The public land erders establishing the Kuskokwim and Izembek National Wildlife Ranges ex- pressly excluded “lands beneath navigable waters”. How- ever, the Public Land Order establishing ANWR contained no such exclusion. The United States argues that the differ- ences between the language establishing the Kuskokwim and Izembek Wildlife Ranges on the one hand, and ANWR on the other, establish congressional intent to defeat state title to submerged lands in PLO 82. Yet none of the three public land orders mention the equal footing doctrine or state title to submerged lands. Even if the United States’ argument were plausible, the State of Alaska offers the equally plausible argument that the public land orders establishing the Izembek and Kuskokwim Wildlife Ranges specifically excluded submerged lands because those wildlife ranges include ocean areas within their boundaries which are not managed by the United States. The boundaries of ANWR, however, do not include ocean boundaries. The above public land orders cannot change the original intent of PLO 82 and are unpersuasive with respect to the intent of the ASA. They do not evince a clear and unambiguous congressional intent to defeat state title to PLO--82 sub- merged lands. If congressional intent regarding PLO 82 can be drawn from post-statehood events, perhaps the most critical event was Public Land Order 2215, 25 Fed. Reg. 12,599 (Dec. 9, 1960). PLO 2215, filed on the same date as the above three public land orders, revoked PLO 82. The fact that PLO 2215 made no mention of state title to submerged land is evidence that Congress never intended, either in 1943 or in 1960, to defeat state title to that land. In bringing Alaska into the Union “on an equal footing with the other states”, ASA § 1, Congress complied with the “longstanding policy of holding land under navigable waters for the ultimate benefit of the State[.]” Utah Lake, 482 U.S. at 202. 57 Revocation of PLO 82 was a natural consequence of state- hood, because title to the submerged land had already passed to the State of Alaska under the equal footing doctrine.” PLO 1621 had already opened some PLO 82 lands to mineral leasing, and the State of Alaska was entitled to make huge land selections under section 6(a) and (b) of the ASA from federal lands. The United States suggests that the totality of the circumstances provides sufficient evidence of congressional intent to defeat state title to PLO 82 submerged land. The United States’ argu- ment, however, ignores the requirements of Shively, Holt State Bank, Choctaw, Montana, and Utah Lake. Those cases establish the strong presumption against defeating the equal footing doctrine and require that the United States put forth clear and unambiguous evidence that Congress defi- nitely declared or otherwise made very plain its intent to defeat state title to submerged land. Congressional defeat of state title to submerged lands “should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.” Utah Lake, 482 U.S. at 197 (citation omitted) (emphasis added). Here, the United States has weaved together numerous public land orders and acts of Congress, but none of them, taken separately or “Uncertainty regarding the meaning of post-statehood events is exemplified in a memorandum from the associate solicitor, Division of Public Lands, to the director of the Bureau of Land Management (attached as an exhibit, numbered 3122, to the State's reply brief, Clerk Is Docket No. 102). The memorandum states: “As you are aware, upon the admission of Alaska title to the beds of all navigable waters within the State vested in it and are held by virtue of its sovereignty.” M-36596, March 15, 1960 (emphasis added). The United States argues that this definitive statement should be discounted because the deputy solicitor, who outranks the associate solicitor, had left open the possibility that pre-statehood withdrawals might defeat state title. If the United States is correct, a mere “possibility” that pre-statehood withdrawals acted to defeat state title to submerged lands in PLO 82 hardly establishes that Congress affirmatively intended to defeat state title to such land. 58 together, meet the level of specificity required by Utah Lake. The United States has made a conjectural case for what Congress might have intended. Yet nowhere in the enormous record can the court find the “clear and especial words”, such as those found in Choctaw,which make very plain a congressional intent to defeat state title to PLO 82 submerged lands. Jd. at 198 (citation omitted). At best, the United States’ arguments establish confusion, not certainty, regarding the status of PLO 82 submerged lands. The court simply “must not infer” without definite, clear, and plain terms that “embrace[] the land under waters” that Con- gress intended to defeat state title to submerged lands. /d. at 198 (citation omitted). The evidence is insufficient for the court to make such an inference here. As stated in Montana: The mere fact that the bed of a navigable water lies within the boundaries described in the treaty does not make the riverbed part of the conveyed land, especially when there is no express reference to the riverbed that might overcome the presumption against its conveyance. Montana, 450 U.S. at 554. Here, as in Montana, there is no express reference in PLO 82, the ASA, or the SLA, that Congress intended to defeat title to PLO 82 submerged land.*' In Choctaw, the Court “placed special emphasis on the Government’s promise that the reserved lands would never become part of any State.” Jd. at 555 n.5. Here, not only is the record devoid of the clear evidence of intent to defeat state title, it is also undisputed that in 1943, when PLO 82 issued, there was absolutely no intent on the part of *' This case is also similar to Holt State Bank, in that there is nothing in the evidence which evinces “a purpose to depart from the established policy . . . of treating such lands as held for the benefit of the future State.” Holt State Bank, 270 U.S. at 58-59. 59 Congress to defeat the future state’s title to PLO 82 sub- merged lands. Even if the court had concluded that Congress did intend to defeat title to the submerged lands of PLO 82, the court believes that revocation of PLO 82 resulted in the sub- merged lands passing to the State of Alaska. The single most important reason why it is constitutional for the United States to reserve land to itself is so that it can hold the land for the ultimate benefit of the future state. Simply because the event of statehood may pass without automatic transfer of title of submerged lands to the state does not mean that the land is no longer held for the ultimate benefit of the state. As stated in the dissent in Utah Lake, “submerged lands retain their sovereign status .. . [a]nd if Congress later determines that the lands are no longer needed by the Federal Government for a public purpose, it can at that time transfer title to the State.” Utah Lake, 482 U.S. at 210 (White, J. dissenting) (citation omitted). The United States cannot, however, transfer title to the submerged lands to private entities or individuals. Shively concluded that submerged lands held in trust by the United States “shall not be disposed of piecemeal to individuals as private property, but shall be held as a whole for the purpose of being ultimately administered and dealt with for the public benefit by the State... .” Shively, 152 U.S. at 50. Thus, with revocation of PLO 82, section 3 of the SLA effected transfer of title to the released submerged lands to the state. 43 U.S.C. § 1311. The principles of the equal footing doc- trine did not end at statehood, but were held in abeyance until the United States determined that it no longer needed the PLO 82 lands. At that point the submerged lands, which could then only be held for the ultimate benefit of the State of Alaska, passed to the state. For the above stated reasons, the court finds that title to the lands beneath the waters of the Kukpowruk River, if navigable, passed to the State of Alaska at statehood pursuant to the equal footing doctrine. 60 Alternatively, title so passed upon revocation of PLO 82 in 1960. The State of Alaska’s motion for partial summary judgment is granted. The United States’ cross-motion for partial summary judgment is denied.” DATED at Anchorage, Alaska, this 29 day of March, 1996. /S/ H. Russel Holland, Judge District of Alaska “ The court has considered the briefs filed by the ASRC and Cully Corporation. Where relevant, their arguments have been incorporated into the court’s consideration of the cross-motions for summary judg- ment. The ASRC argues that the State of Alaska has, over the years, conceded the United States’ position that the State did merged Lands.” (See documen exhibit to the State’s reply brief; Clerk’s Docket notices, dated in the late 1970s, contained language cau the ASRC that the State of Alaska did not believe that the United States had title to convey. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0005%3A10. Public record. Not legal advice.