Amicus Curiae Brief — Idaho v. United States

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mY: N >¢ No. 00-189 \_/ 5 ret US

In The ‘JAN 25 pn:

Supreme Court of the United States

, E

STATE OF IDAHO,

Petitioner,

UNITED STATES OF AMERICA and

COEUR D’ALENE TRIBE,

Respondents.

o

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

BRIEF OF THE STATES OF CALIFORNIA,

ALABAMA, ALASKA, ARKANSAS, NORTH DAKOTA,

OREGON, SOUTH DAKOTA, UTAH, VERMONT,

WASHINGTON AND WYOMING AS AMICI CURIAE

IN SUPPORT OF PETITIONER

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Bit. Lockyer

Attorney General of the

State of California

RICHARD M. FRANK

Chief Assistant Attorney General

J. MatrHew RopriQuEz

Assistant Attorney General

JAN S. STEvENs*

Assistant Attorney General

Office of the Attorney General

1300 I Street

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone (916) 324-6312

*Counsel of Record

[Additional Counsel Listed On Inside Cover]

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Additional Counsel:

Bitt Pryor

Attorney General

State of Alabama

Bruce M. BoTELHoO

Attorney General

State of Alaska

Mark Pryor

Attorney General

State of Arkansas

WayYNE STENEHJEM

Attorney General

State of North Dakota

Harpy Myers

Attorney General

State of Oregon

Mark W. BaRNeETT

Attorney General

State of South Dakota

Mark L. SHURTLEFF

Attorney General

State of Utah

WILLIAM H. Sorretyi

Attorney General

State of Vermont

CHRISTINE O. GREGOIRE

Attorney General

State of Washington

Gay WoopHousE

Attorney General

State of Wyoming

TABLE OF CONTENTS

Page

SOUR Gr GOW PUNE SEALE occ cscs cs ccnscccnce 1

SUMMARY OF ARGUMENT. .......cccceccccsccces 1

POY rer Peer rrr rere te Teer ere 4

I. THE NAVIGABLE WATERS ARE HELD IN

TRUST FOR FUTURE STATES ................ 4

A. Control Over Navigable Waters is an

Attribute of State Sovereignty ............ 4

B. The Federal Government Holds Navigable

Waters in Trust for the Future States...... 5

II. IDAHO’S NAVIGABLE WATERS PASSED IRRE-

VOCABLY TO THAT STATE ON ADMISSION

pe fo: rn en re ere 8

A. Lake Coeur D’Alene and its Tributaries are

Sovereign Waters of the State of Idaho.... 8

B. Neither the United States Nor the Tribe

Acknowledges the Trust Responsibilities

Administered by Idaho in its Navigable

Ae ere eer Te err ee eee 9

C. The Trust in Which Navigable Waters Are

Held for the People of the Future States

Severely Restricts Their Alienation........ 10

III. ONLY UNDER THE MOST UNUSUAL CIR-

CUMSTANCES SHOULD A STATE’S SOVER-

EIGN WATERS BE DEEMED TO HAVE BEEN

14

RESERVED PRIOR TO STATEHOOD..........

li

TABLE OF CONTENTS - Continued

- Page

A. Principles of Federalism Demand a Narrow

Standard and a High Hurdle for Prestate-

eee errr er rere ey 14

B. Congress Must Act Expressly Before State-

hood to Defeat the State’s Claims......... 16

C. The Purported Withdrawal of Lake Coeur

D’Alene Before Idaho’s Admission Did Not

Meet the Requisite Standards ............. 16

D. Equal Footing Principles Call for a Narrow

Construction of Federal Power to Defeat

SSURUE SOVOUMNI THEIR. cnc cae ccccesewssecas 17

Se est | PETE TTS ee rr rere 19

iii

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) ..15, 17

Gregory v. Ashcroft, 510 U.S. 460 (1991).............. 20

Hardin v. Jordan, 140 U.S. 371 (1891) ................. 6

Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261

TE a 5 Kia a Rad NR CASON Rees baba Reudee 5, 75 & 9

Illinois Central Railroad v. Illinois, 146 U.S. 387-

PEE chink o kedccndeseedesincedivkes a, 40, 24, 32,33

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

RP ee PT a APE ep ar PE ethno Parente 5, 7, 16, 19

Metcalf & Eddy v. Mitchell, 269 U.S. 514 (1926)....... 18

Montana v. United States, 450 U.S. 544 (1981) ..... 15, 16

New York v. United States, 505 U.S. 144 (1992) ..2, 5, 18

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

Cue Gil, Ge UB. FES TERI Tene cnc escaweesen 7, 9, 18

Phillips Petroleum Co. v. Mississippi & Saga Pet., 484

SF SO Rs 6.5 oe SAS GA Su AR ston beer MANO KWAN ees 9

Pollard v. Hagan, 3 How. (44 U.S.) 212 (1845)....... a 4

Shively v. Bowlby, 152 U.S. 1 (1894)... 3, 6, 7, 11, 13, 17

Smith v. Maryland, 59 U.S. (18 How.) 71 (1955) ....... 9

Solid Waste Agency v. Corps of Engineers, No.

99-1178, Slip Opn. 12 (Jan. 9, 2001), 531 U.S.__

+. Reino rere re © eye ner ener 4, 14

Texas v. White, 7 Wall. (74 U.S.) 700 (1869) .......... 19

United States v. Alaska, 521 U.S. 1 (1997) ...... 7s. Se

iv

TABLE OF AUTHORITIES - Continued

United States v. Bass, 404 U.S. 336 (1971) ............ 14

United States v. Idaho, 210 F.3d 1062 (9th Cir. 2000) .... 16

United States v. Holt State Bank, 270 U.S. 49 (1926) .... 15

Utah Division Of State Lands v. United States, 482

5 a 3» errr rere rr rere ee 1, 7, 8, 15, 16

StaTE CASES

Arnold v. Mundy, 1 Halst. (6 N.J.L.) 1 (N.J. 1821) ..5, 10

Kootenai Environmental Alliance v. Panhandle Yacht

ied, 671. F.2d 1085 :(Gda: 1969)... isiveseriisiee. 9

Marks v. Whitney, 491 P.2d 374 (Cal. 1971)......... . 10

National Audubon Society v. Superior Court, 658 P.2d

Pe OE: SOMOS bac Sees stakes ban eeneecigens Kanwe ea 10

Priewe v. Wisconsin State Land & Improvement Co.,

FO Pee FO COG. TOBE) vnc sacecceceesnwenseeyaas 11

United Plainsmen v. North Dakota State Water Cons.

Committee, 247 N.W.2d 457 (N.D. 1976)............ 10

STATUTES

Submerged Lands Act, Sec. 3, 43 U.S.C. sec.

cf re er re eres ere ye eer gee ney or 15

mae; Sena, OP tA... Ob.. TIS ss fevers 15

Vv

TABLE OF AUTHORITIES - Continued

Page

MISCELLANEOUS

American Automobile Assn. Tour Book 33 (Feb.

se Pees meena ye ioe Reker ee eure )

2 H. Bracton, On the Laws and Customs of Eng-

land 16-17 (S. Thorne trans. 1968) ................. 6

The Institutes of Justinian 2.1.1 L (T. Cooper trans.

a |.) Pee pry eee perme pry ey re 6

Locke, Right of Access to Great Ponds by the

Colonial Ordinance, 12 Me L.Rev. 148 (1918) ....... 6

S. Moore, History of the Foreshore xlviii (1888) ..... 14

C. Wilkinson, The Public Trust Doctrine in Public

Land Law, 14 U.C. Davis L.Rev. 269 (1980) ......... 9

INTEREST OF AMICI STATES

Throughout the country, navigable rivers and lakes

provide highways of commerce, habitat for fisheries and

irreplaceable sources of recreation and pleasure. To para-

phrase Justice Holmes, they are more than amenities;

they are treasures. But unlike ancient Rome and monar-

chical England, the trust in which they are held is not

exercised by a crowned sovereign. After the Revolution,

King George’s jus publicum interest in the navigable

waters of America passed to the people; inalienable

resources entrusted to the sovereign States. The title to

these waters, their beds and banks passes to the States

under the Constitution. The States’ ownership of these

waters is an essential attribute of their sovereignty. Utah

Division Of State Lands v. United States, 482 U.S. 193, 195

(1987). Suggestions that the States’ sovereign interests in

these waters were foreclosed by the actions of federal

agencies taken before statehood must be received cau-

tiously, and subjected to the most rigorous review.

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SUMMARY OF ARGUMENT

Our lakes and rivers do not recognize political

boundaries. Just as they run through counties and some-

times over state lines, they may run through federal

reservations. There is nothing inherently inconsistent or

unacceptable about a State sovereign river running

through a federal reservation, or a State sovereign lake

existing within one. The history of public land !aw is

largely one that deals with the coexistence of two sover-

eigns within one state. Such coexistence can be messy,

and at times conducive to fraternal strife. No doubt it

might be neater to have a central government based on

the continental system, in which States act as depart-

ments run from Washington. Cf. New York v. United States,

505 U.S. 144, 187 (1992). But the Constitution calls for a

different system: one in which the States are sovereigns,

stewards of their navigable waters and other resources.

With the Revolution, the people of the thirteen origi-

nal States assumed the sovereignty of the crown and with

it, title to their navigable waters. When the federal gov-

ernment acquired additional lands, it held their waters in

trust for the future States. The new States assumed sover-

eignty over them under the equal footing doctrine.

Although there may be times when the central govern-

ment has reason to abort a state’s constitutional right to

its navigable waters by making prestatehood reserva-

tions, these occasions are few and far between. This Court

has provided a series of bright lines against which asser-

tions that States’ rights have been terminated are mea-

sured. Such grave actions, depriving States as they do of

a portion of their sovereignty, are not to be inferred

lightly. These standards are guided by the principle that

Congress holds the navigable waters in trust for the

future States. They are further guided by the constitu-

tional doctrine that new States are admitted to the union

on an equal footing with the original ones. Their sover-

eign rights should not be diminished by the happen-

stance that for a brief period they were territories, in

which the United States exercised paramount control

under the Property Clause.

The trust in which the federal government holds

navigable waters for the future States necessarily must be

mere:

analyzed in terms of the trust obligations this Court has

held apply to the States once they take title to them on

statehood. The trust in which these waters are held pro-

hibits abdication of control over them. They “cannot be

placed entirely beyond the direction and control of the

[future] State.” Illinois Central Railroad v. Illinois, 146 U.S.

387, 454 (1892). Control over them for purposes of the

trust can only be relinquished for purposes of the trust.

Parcels relinquished must be limited to those that can be

disposed of without substantial impairment of public

interest in the remaining lands and waters, and the intent

to dispose of them must be made in the most clear and

specific terms. There is necessarily a strong presumption

that this trust was not violated by the acts of the federal

government before statehood. A prestatehood with-

drawal is not valid unless it is made by Congress for an

appropriate public purpose, defined in terms of “interna-

tional duty or public exigency.” Shively v. Bowlby, 152 U.S.

1, 50 (1894). Furthermore, Congress must have shown

expressly that it intended to withdraw the navigable

water in question, and that it intended in so doing to

defeat a State’s equal footing interest.

The Ninth Circuit opinion below muddies these

objective safeguards. It accepts as adequate to prove a

valid prestatehood withdrawal 1) an ambiguous execu-

tive order, followed by 2) expressed Senatorial confusion,

3) a self-serving agency memorandum and 4): an agree-

ment not ratified by Congress until after statehood. If this is

to be the standard by which the defeat of equal footing

rights is measured, States are placed potentially at risk of

losing their most treasured waters to sudden and

unheralded claims brought by the federal government

under this vague and uncertain rule. Any vestiges of the !

equal footing rule, and the trust obligation of the United

States toward future States, is obliterated. The States’

constitutionally-derived powers over these waters should

not rest on such shifting sands.

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ARGUMENT

I.

THE NAVIGABLE WATERS ARE HELD IN TRUST FOR

FUTURE STATES.

A. Control Over Navigable Waters is an Attribute of

State Sovereignty.

Many chapters of United States history are given

over to the controversies between State and federal sover-

eigns over lands and waters. The retention by the federal

government of large tracts of land - sometimes amount-

ing to well over half the lands within a particular State —

has inevitably given rise to tension and conflict when

expansive federal interests have collided with States’

efforts to regulate and administer resources acquired by

virtue of their sovereignty. Sometimes the principles of

federalism have been neglected in the process. This Court

only recently counseled for consideration of the special

concerns that arise when a federal policy “alters the

federal-state framework by permitting federal encroach-

ment upon a traditional state power.” Solid Waste Agency

v. Corps of Engineers, No. 99-1178, Slip Opn. 12 (Jan. 9,

2001), 531 U.S.___ (2001). In the past few years, the Court

has shown itself acutely cognizant of the need to recog-

nize that States are more than mere subdivisions of the

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federal government, and that the Constitution confers on

them the power and responsibility to manage and safe-

guard their resources. E.g., New York v. United States, 505

U.S. 144 (1992).

No state power is more traditional than that exer-

cised over its navigable waters, subject only to the federal

navigable easement. This Court recognized in 1842 that

“When the Revolution took place, the people of each state

became themselves sovereign; and in that character hold

the absolute right to all their navigable waters and the

soils under them for their own common use, subject only

to the rights since surrendered by the Constitution to the

general government.” Martin v. Waddell, 16 Pet. (41 U.S.)

367, 410 (1842), quoted in Idaho v. Coeur d’Alene Tribe of

Idaho, 521 U.S. 261, 282 (1997). More recently admitted

States entered the Union on an equal footing with the

original States and their interest over these “sovereign

lands” is identical. Pollard v. Hagan, 3 How. (44 U.S.) 212

(1845). As this Court has observed in an earlier phase of

this very litigation, “The principle which underlies the

equal footing doctrine and the strong presumption of

State ownership is that navigable waters uniquely impli-

cate sovereign interests.” Idaho v. Coeur d’Alene Tribe of

Idaho, 521 U.S. 261, 284 (1997).

B.- The Federal Government Holds Navigable Waters

in Trust for the Future States. :

This principle of sovereign waters, held in public

trust, is rooted in ancient Roman and medieval law, and

reflected in the Magna Carta. Arnold v. Mundy, 1 Halst. (6

N.J.L.) 1 (N.J. 1821).1 These traditions were carried to the

new world from the beginning. The Great Pond Ordi-

nance of Massachusetts Bay Colony in 1641 guaranteed

the right to fish and fowl in ponds greater than 10 acres

in size, with freedom of access through private property

for that purpose. Similar protections were afforded fresh-

water lakes in Maine and New Hampshire. See Locke,

Right of Access to Great Ponds by the Colonial Ordi-

nance, 12 ME L.Rev. 148 (1918); Hardin v. Jordan, 140 U.S.

371, 393 (1891).

As this Court observed, “{[T]he men who first formed

the English settlements, could not have been expected to

encounter the many hardships that unavoidably attended

their emigration to the new world, and to people the

banks of its bays and rivers, if the land under the water at

their very doors was liable to immediate appropriation

by another as private property; and the settlers upon the

fast land thereby excluded from its enjoyment, and

1 The Institutes of Justinian restated Roman law as follows:

“By the law of nature these things are common to mankind -— the

air, running water, the sea and consequently the shores of the

sea.” All rivers and ports were public, and the right of fishing

was common to all men. The Institutes of Justinian 2.1.1 L (T.

Cooper trans. & ed. 1841). This principle was restated in Las

Sietes Partidas, the law of 13th century Spain. At about the same

time, Bracton was restating the Roman rule in medieval

England. There, the crown held ownership of the beds of

navigable waters, but its interest was very different from that

enjoyed by private landholders. The navigable waters in which

public rights existed were inalienable. They could not be

separated from the Crown. 2 H. Bracton, On the Laws and

Customs of England 16-17, 39-40 (S. Thorne trans. 1968). See

Shively v. Bowlby, 152 U.S. at 11-14.

Ne

unable to take a shell-fish from its bottom or fasten there

a stake, or even bathe in its waters without becoming a

trespasser upon the rights of another.” Martin v. Waddell,

16 Pet. (41 U.S.) 367, 414 (1842). The enormous practical

and historical significance of state sovereignty over navi-

gable waters drives the scrutiny given assertions that

Congress has defeated State interests in these waters by

pre-statehood reservations. Necessarily, such assertions

have been regarded with scepticism and subjected to

strict, objective standards.

These waters are held “in trust for the future States to

be ultimately created... . ” Shively v. Bowlby, 152 US. at

52. This Court has stated time and again that a strong

presumption exists against the inclusion of navigable

waters within prestatehood reservations. They may be

made only “in order to perform international obligations,

or to effect the improvement of such lands for the promo-

tion and convenience of commerce . . . or to carry out

other public purposes appropriate to the objects for

which the United States hold the Territory.” United States

v. Alaska, 521 U.S. 1, 40 (1997), quoting Utah Division of

State Lands v. United States, 482 U.S. 193, 196-197; Shively

v. Bowlby, 152 U.S. at 48.

The States’ title to their sovereign waters is “con-

ferred not by Congress but by the Constitution itself.”

Idaho v. Coeur d’Alene Tribe, 521 U.S. at 283, quoting Ore-

gon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429

U.S. 363, 374 (1977). Once the State assumes title to these

waters, Congress is without power to reclaim them. Pol-

lard v. Hagan, 3 How. (44 U.S.) 212, 230 (1845).

It is no light matter, then, to find that Congress

intended to withhold from a newly admitted state an

indispensable attribute of its sovereignty. Not only must

such an action be for purposes appropriate to its respon-

sibilities over the public lands, but there must be a show-

ing that, before statehood, 1) Congress intended that the

reservation include such waters, and 2) the United States

intended to defeat the future State’s title to them. Utah

Div. of State Lands, supra. Nothing in the opinion below

reflects a federal interest justifying such a drastic result as

depriving the people of Idaho of “one of the Nation’s

most beautiful lakes,” Idaho v. Coeur d’Alene Tribe of Idaho,

521 U.S. 261, 264 (1997) in order to place it under the

exclusive jurisdiction of another sovereign refusing to

acknowledge public trust responsibilities, with the appar-

ent effect of depriving the people generally of their trust-

derived rights of access and recreation. See Amicus Cur-

iae brief of Benewah County and Kootenai County,

Appendices 1, 2. Furthermore, nothing in the record

shows that Congress took action to defeat the State’s title

prior to statehood.

II.

IDAHO’S NAVIGABLE WATERS PASSED IRREVOCA-

BLY TO THAT STATE ON ADMISSION TO THE

UNION.

A. Lake Coeur D’Alene and its Tributaries Are Sover-

eign Waters of the State of Idaho.

The navigable waters of Idaho, like those of other

States, belong to its people. They were acquired by that

State by virtue of its sovereignty, under the Constitution,

rather than by act of Congress. Oregon ex rel. State Land

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

The water body most affected by this case is Lake Coeur

d’Alene, a body of water 25 miles long and two and a half

miles wide. It was once called one of the five most

beautiful lakes in the world by National Geographic Mag-

azine. It hosts one of the largest populations of osprey in

the nation. Bald eagles feast on its salmon in the winter.

American Automobile Assn. Tour Book 33 (Feb. 1992).

Idaho has embraced the public trust doctrine, and its

courts implement it. E.g., Kootenai Environmental Alliance

v. Panhandle Yacht Club, 671 P.2d 1085 (Ida. 1983). The

protection of fisheries and other wildlife within the State

is part of its public trust interest in its navigable waters:

“The State holds the propriety of its soil for the conserva-

tion of the public rights of fishery thereon, and may

regulate the modes of that enjoyment so as to prevent the

destruction of the fishery.” Smith v. Maryland, 59 U.S. (18

How.) 71, 75 (1955); see also, Phillips Petroleum Co. v.

Mississippi & Saga Pet., 484 U.S. 469, 476 (1988).

B. Neither the United States Nor the Tribe Acknowl-

edges the Trust Responsibilities Administered by

Idaho in its Navigable Waters.

Although, as this Court has observed, the Tribe for

whose benefit the Lake is claimed may view the lands

“just as necessary to its own dignity and ancient right,”

Idaho, 521 U.S. at 287, it is incontrovertible that neither

the federal government nor the Tribe acknowledges pub-

lic trust responsibilities. See C. Wilkinson, The Public

Trust Doctrine in Public Land Law, 14 U.C. Davis L.REv.

10

269 (1980). Although logic compels the same trust should

apply, the United States rejects any duty to take those

trust responsibilities into consideration in the planning

and allocation of resources for the Lake. Cf. United Plains-

men v. North Dakota State Water Cons. Comm., 247 N.W.2d

457 (N.D. 1976); National Audubon Society v. Superior

Court, 658 P.2d 709 (Cal. 1983), cert. denied, 464 U.S. 977

(1983). It rejects the principle of inalienability, so force-

fully set forth in Illinois Central Railroad v. Illinois, 146 U.S.

387 (1892). And it would potentially deny to the people of

Idaho their right to use the waters of the Lake for recre-

ation, boating, and ecological preservation. See Amicus

Curiae Brief of Benewah and Kootenai Counties, App.

1-4. Cf. Marks v. Whitney, 491 P.2d 374 (Cal. 1971).

C. The Trust in Which Navigable Waters Are Held for

the People of the Future States Severely Restricts

Their Alienation.

Because these waters are held in sovereign trust, they

cannot be wholly alienated. As the New Jersey Supreme

Court stated in Arnold v. Mundy: “The sovereign power

itself (in navigable waters) . . . cannot, consistently with

the principles of the law of nature and the constitution of

a well ordered society, make a direct and absolute grant

of the waters of the state, divesting all the citizens of their

common right.” That would be a grievance, said New

Jersey’s Chief Justice, “which never could be long borne

by a free people.” Arnold v. Mundy, 6 N.J.L. 1, 78 (1821);

see, also Illinois Central Railroad v. Illinois, 146 U.S. 387

(1892). A later state court expressed the principle as fol-

lows:

~

11

The legislature has no more authority to emanci-

pate itself from the obligation resting upon it

which it assumed at the commencement of its

statehood, to preserve for the benefit of all the

people forever the enjoyment of the navigable

waters within its boundaries, than it has to

donate the school fund or the state capitol to a

private purpose. It is supposed that this doc-

trine has been so firmly rooted in our jurispru-

dence as to be safe from any assault that can be

made upon it. Priewe v. Wisconsin State Land &

Improvement Co., 79 N.W. 780, 781 (Wis. 1899).

When this Court held in Shively that the navigable

waters were held “in trust for the several States to be

ultimately created,” Shively v. Bowlby, 152 U.S. at 57, it

necessarily had in mind the attributes of the public trust

in which navigable waters are held generally. Only two

years before, in Illinois Central Railroad v. Illinois, 146 U.S.

387 (1892) it had taken pains to define the limits on

alienation imposed by the public trust on such lands.

There, the Court held that the public’s interest in Lake

Michigan was such that the legislature lacked power to

dispose of a major portion of its bed, consisting of the

Chicago waterfront. While the legislature could make

grants of parcels for trust-related purposes, and of par-

cels that do not substantially impair the public interest in

the lands and waters remaining, the Court held, “[T]hat is

a very different doctrine from the one which would sanc-

tion the abdication of the general control of the State over

lands under the navigable waters of an entire harbor or

bay, or of sea or lake. Such abdication is not consistent

with the exercise of that trust which requires the govern-

ment of the State to preserve such water of the use of the

public. The trust devolving upon the State for the public,

12

and which can only be discharged by the management

and control of property in which the public has an inter-

est, cannot be relinquished by a transfer of the property.

The control of the State for the purposes of the trust can never

be lost, except as to such parcels as are used in promoting the

interests of the public therein, or can be disposed of without

any substantial impairment of the public interest in the lands

and waters remaining. ...” Illinois Central, 146 U.S. at

452-53 (emphasis added).

The Court laid down a two-part test for determining

the validity of a legislative grant of navigable waters:

1. Does the disposition affirmatively aid or improve

the public interest in navigation or other public use of the

particular area of the waterway beneath the ordinary

high watermark?

2. If the legislative grant does not affirmatively aid

or improve the public trust, does the disposition substan-

tially impair the public interest in the remaining lands

and waters of the particular area of the waterway? Ibid.

Further, the Court held, title of the State cannot be

surrendered or delegated for other than public purposes:

“The State can no more abdicate its trust over property in

which the whole people are interested, like navigable

waters and soils under them, so as to leave them entirely

under the use and control of private parties except in the

instance of parcels mentioned for the improvement of the

navigation and use of the waters, or when parcels can be

disposed of without impairment of the public interest in

what remains, than it can abdicate its police powers in

the administration of government and the preservation of |

peace. . . . So with trusts connected with public property, or

EAE SEES att RE RT oe

13

property of a special character, like lands under navigable

waters; they cannot be placed entirely beyond the direction and

control of the State.” Id. at 453-54 (emphasis added).

When the Court in Shively referred to the limitations

applicable to grants or navigable waters by Congress

before statehood, it must have been aware of the trust

limitations it imposed on such lands two years earlier.

Indeed, it restated the time-honored principle that “[T]he

- title and the control of them are vested in the sovereign

for the benefit of the whole people.” Shively v. Bowlby, 152

U.S. at 57. The references in that opinion to the right of

Congress to make prestatehood grants “for appropriate

purposes,” measured by such standards as “international

duty” and “public exigency,” 152 U.S. at 58, must neces-

sarily be measured against the overall trust obligations

spelled out in Illinois Central as well. It would be anoma-

lous indeed if this Court were to hold the United States,

as trustee for the future states, to a lesser duty than the

one to which it subjects the States themselves as trustees

of their navigable waters. It is inconceivable that the

United States, a trustee of these waters for the State-to-be,

may alienate them for any “public purpose,” when the

sovereign State is held by this Court to a strict trust

standard requiring them to preserve such waters for trust

purposes and prohibiting the wholesale “abdication” of

control over them. Illinois Central Railroad, 146 U.S. at

452-53.

Nevertheless, neither the Tribe nor the United States

acknowledges trust inhibitions. One of the principal

critics of the Crown’s ownership of navigable waters

attacked that concept on the ground that the King would

only sell such lands to reduce the national debt. S. Moore,

14

History of the Foreshore xlviii (1888). Is it beyond con-

ception that in the absence of public trust protection, the

bed of this remarkable body of water could at some

future time be filled and used for commercial develop-

ment or other purposes inconsistent with the people’s

ancient rights?

All these considerations underline the gravity of

asserting that Congress, acting under the Property

Clause, could and intentionally did prevent the operation

of the equal footing doctrine and deprive the people of

the State of a national treasure.

Ill.

ONLY UNDER THE MOST UNUSUAL CIRCUM-

STANCES SHOULD A STATE’S SOVEREIGN WATERS

BE DEEMED TO HAVE BEEN RESERVED PRIOR TO

STATEHOOD.

A. Principles of Federalism Demand a Narrow Stan-

dard and a High Hurdle for Prestatehood With-

drawals. |

This Court has recently observed that significant con-

stitutional and federalism questions arise when expansive

readings are given to the exercise of federal power which

significantly impinges on the State’s “traditional and pri-

mary power over land and water use.” “[UJnless Con-

gress conveys its purpose clearly, it will not be deemed to

have significantly changed the federal state balance.”

United States v. Bass, 404 U.S. 336, 349 (1971); Solid Waste

Agency, supra, Slip Opinion at 13. This Court has declined

in past cases to find that Congress intended to foreclose a

State’s equal footing rights. “Only in the most unusual

15

circumstances” has Congress withheld navigable waters

from States. Utah Div. of State Lands v. United States, 482

U.S. at 197. Such prestatehood withdrawals were “not

lightly to be inferred, and should not be regarded as

intended unless the intention was definitely declared or

otherwise made very plain.” United States v. Holt State

Bank, 270 U.S. 49, 55 (1926).2 When the Court found a

prestatehood withdrawal, it made it clear that the case

was highly unusual. Choctaw Nation v. Oklahoma, 397 US.

620 (1970), and “based on very peculiar circumstances,”

Montana v. United States, 450 U.S. 544, 555 U.S. (1981).

More representative of the consistent precedent is

Montana v. United States, 450 U.S 544 (1981), in which the

State’s interest in the bed of the Big Horn River, flowing

through the Crow Tribe Reservation, was held not to be

conveyed to the Tribe. As in this case, the applicable

treaty did not refer expressly to the riverbed; nor was any

intent t: convey the bed set forth in “clear and especial

2 This principle is further elucidated by Congress in section

3 of the Submerged Lands Act, 43 U.S.C. sec. 11311(a), declaring

it to be in the “public interest that (1) title to and ownership of

the lands beneath navigable waters within the boundaries of the

respective States, and the natural resources within such lands

and waters, and (2) the right and power to manage, administer,

lease, develop and use the said lands and natural resources, all

in accordance with applicable State law be, and they are, subject

to the provisions hereof, recognized, confirmed, established,

and vested in and assigned to the respective States... .” The

only applicable exceptions from this provision in the Act refer to

“all lands expressly retained by or ceded to the United States

when the State entered the Union (otherwise than by a general

retention or cession of lands underlying the marginal sea).” Sec.

5(a), 43 U.S.C. sec. 1313(a) (emphasis added). See United States v.

Alaska, 521 U.S. at 63-64 (Thomas, J. dissenting).

16

words.” 450 U.S. at 554, quoting Martin v. Waddell, 16 Pet.

at 417.

No “clear and especial words” appear in the record

here to support the drastic result reached below.

Although a portion of Lake Coeur d’Alene was included

within the executive reservation, nothing in the order

indicated that the President intended to abrogate the trust

in which navigable waters are held for future States.

B. Congress Must Act Expressly Before Statehood to

Defeat the State’s Claims.

Although in 1888 the Senate expressed confusion

over the boundaries of the reservation, and authorized

the Interior Secretary to negotiate for purchases of por-

tions of the reservation “valuable chiefly for minerals and

timber,” the subsequent agreement was never accepted

by Congress until after Idaho’s statehood. United States v.

Idaho, 210 F.3d 1062 (9th Cir. 2000). Once a State is admit-

ted into the Union, of course, its title to navigable lakes

and rivers vests and is non-revocable. Pollard, 3 How. at

230. Congress must act before statehood to defeat the

future States’ claim. Utah, 482 U.S. at 202.

C. The Purported Withdrawal of Lake Coeur D’Alene

Before Idaho’s Admission Did Not Meet the Requi-

site Standards.

Under accepted federalism holdings, the power of

the federal government under the property clause to

withhold navigable waters from a state can only be exer-

cised in order “to perform international obligations, or to

17

effect the improvement 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 objects for which the United

States hold the Territory.” Shively v. Bowlby, 152 U.S. 1, 48

(1894). This language must be read within the context of

“international duty or public exigency.” Id. at 58. Other-

wise it could hardly stand muster in light of the funda-

mental principles of federalism involved. Such a purpose

may necessarily exist when reservation of lands for petro-

leum requires retention of submerged beds as well as

uplands. United States v. Alaska, 521 U.S. 1 (1992). Or a

treaty obligation may obligate the United States to

reserve a riverbed when it has promised the reservation

will never be included within a state. Choctaw National v.

Oklahoma, 397 U.S. 620 (1970).

In this case, however, it is hard to see how withdraw-

ing one of the nation’s major lakes from a State’s sover-

eign trust lands carries out any legitimate public purpose.

There is no showing in the record that Idaho's trust

obligations for Lake Coeur d’Alene would permit it to

exclude the Tribe from its waters, or to prevent tribal

members from fishing and hunting pursuant to reason-

able regulation.

D. Equal Footing Principles Call for a Narrow Con-

struction of Federal Power to Defeat State Sover-

eign Title.

This is a case in which the strength of the federal

interest must be evaluated “in light of the degree to

18

which such laws would prevent the State from function-

ing as a sovereign.” New York v. United States, 505 U.S. at

163. The Constitution does not authorize Congress to

require States to govern according to its instructions. Id.

at 161. Yet the withdrawal of navigable waters seriously

diminishes State sovereignty and substantially curtails

the exercise of State powers. Metcalf & Eddy v. Mitchell,

269 U.S. 514, 523 (1926). Such considerations apply to

States-to-be just as they do to existing ones. Certainly the

withdrawal of a major part of one of the nation’s most

beautiful lakes diminishes Idaho’s sovereignty. It is a

violation of the principle that “[NJeither government may

destroy the other; nor curtail in any substantial manner

the exercise of its power.” Id. The principle under which

newly admitted States accede to their navigable water-

ways is the equal footing doctrine, a constitutional doc-

trine enunciated by this Court in Oregon ex rel. State Land

Board v. Corvallis Sand & Gravel Co.

Since the Revolution made the people sovereign, and

therefore entitled to their navigable waters and the soil

under them, the Constitution demands that States later

admitted to the Union have the same perquisites of sover-

eignty. But the new States do not receive equal footing, if

their sovereignty is subject to the whim of Congress and

their waters, unlike those of the 13 original States, are

subject to prestatehood withdrawals. The only difference

between the new States and the old is the unfortunate

happenstance that the new ones existed for brief periods

as territories of the United States, in which Congress

exercised the Property Clause over lands in its possession

and control. Earlier decisions of this Court properly

stated without qualifications that these lands were held

19

in trust for the future State. Future decisions of this Court

should hold the federal government to a strict standard in

light of that trust obligation, and the right of the States to

equal footing in the Union.

@

v

CONCLUSION

The bed of Lake Coeur d’Alene and its related rivers

was held by the United States in trust for the future State

of Idaho. The public trust in which that lake is held for

the people is as applicable to the federal government as

trustee as it is to the State. If “the great right of domain

and ownership” in these waters was to have been with-

held from the people of the State and their ancient rights

of “common fishery” withdrawn, “that design . . . would

have been clearly indicated by appropriate terms and

would not have been left for inference from ambiguous

language.” Martin v. Waddell, 16 Pet. at 416.

As the Court stated in 1869:

“[T]he preservation of the States, and the main-

tenance of their governments, are as much

within the design and care of its constitution as

the preservation of the union and the mainte-

nance of the national government. The Constitu-

tion, with all its processes, looks to an

indestructible union, composed of indestructible

states.” Texas v. White, 7 Wall (74 U.S.) 700, 725

(1869).

The Property Clause, like the Supremacy Clause,

“gives the federal government a decided advantage in

th(e) delicate balance the constitution strikes between

20

state and federal power.” Gregory v. Ashcroft, 510 U.S. 460

(1991). This is not a case in which that advantage can or

should be taken. The State of Idaho, under the public

trust doctrine, acts as constitutional steward for Lake

Coeur d’Alene. That lake’s priceless resources are held

for all the people of the State, as well as the tribes of

Idaho. There is room in our federal system for States,

tribes, and the national government. When the constitu-

tional function of States as sovereigns can be reconciled

with the federal stewardship of native peoples, there is

no reason to strain for results that will only put further

strains on our federal scheme.

Respectfully submitted,

Britt LockYeR

Attorney General of the

State of California

RICHARD M. FRANK

Chief Assistant Attorney General

J. MatrHew RopriQuEz

Assistant Attorney General

JAN S. STEVENS*

Assistant Attorney General

Office of the Attorney General

1300 I Street

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone (916) 324-6312

Counsel for Amicus

State of California

*Counsel of Record