# Amicus Curiae Brief — Idaho v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 262

## Text

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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

¢

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.

o

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.

e

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1726%3A11. Public record. Not legal advice.