OCTOBER TERM, 1991
Syllabus
UNITED STATES
v. ALASKA
ON BILL OF COMPLAINT
No. 118, Orig. Argued February 24, 1992-Decided April 21,
1992
Pursuant to,
inter alia, § 10 of the Rivers and Harbors
Appropriation Act of 1899 (RHA), the Secretary of the Army, through
the Army Corps of Engineers, granted Nome, Alaska, a federal permit
to build port facilities extending into Norton Sound. The permit's
issuance was conditioned on the submission by Alaska of a
disclaimer of rights to additional submerged lands that it could
claim within its boundary if the facilities' construction moved the
coastline seaward. However, the disclaimer also provided that
Alaska reserved its right to the accreted submerged lands pending a
decision by a court of competent jurisdiction that federal
officials lacked the authority to compel a disclaimer of
sovereignty as a condition of permit issuance. After the facilities
were constructed, the United States Department of the Interior
proposed a lease sale for minerals in Norton Sound. Alleging that
the proposal involved lands subject to its disclaimer, Alaska
announced its intention to file suit challenging the Corps'
authority to require the disclaimer. The United States was granted
leave of this Court to commence this action, and both parties have
filed motions for summary judgment.
Held: The Secretary of the Army acted within his
discretion in conditioning approval of the Nome port facilities on
a disclaimer by Alaska of a change in the federal-state boundary
that the project might cause. Pp. 575-593.
(a) This Court's review of the Corps' construction of a statute
that it administers involves an examination of § 1O's language,
this Court's decisions interpreting § 10, and the Corps'
longstanding construction in fulfilling Congress' mandate. On its
face, § 10-which prohibits the building of any structure in
navigable waters of the United States "except on plans recommended
by the Chief of Engineers and authorized by the Secretary of the
Army"-appears to give the Secretary unlimited discretion to grant
or deny a permit for construction of a structure such as the one at
issue. While both the RHA's legislative history and § 10's
statutory antecedents offer little insight into Congress' intent,
the idea of delegating authority to the Secretary was well
established in the immediate precursors to the RHA. This Court's
decisions also support the view that § 10 should be construed
broadly, see,
e. g., United States ex rel.
Greathouse v.
Dern, 289 U. S. 352, to
authorize consideration of factors other than navigation during the
permit review process, cf.
570
Syllabus
United States v.
Pennsylvania Industrial Chemical
Corp., 411 U. S.
655. In addition, since the late 1960's, the regulations
adopted by the Corps have interpreted its statutory authority as
empowering it to take into account several "public interest"
factors-including a full range of economic, social, and
environmental factors-in addition to navigation in deciding whether
to issue a § 10 permit. See,
e. g., 33 CFR §
320.4(a)(1). Pp. 576-583.
(b) There is no merit to Alaska's argument that any statutory
mandate authorizing the Secretary to consider factors in addition
to navigation is exceeded by 33 CFR § 320.4(f), which authorizes
consideration of a project's consequences on the federal-state
boundary. Contrary to Alaska's position, the Corps' practice does
not conflict with the Submerged Lands Act (SLA), which provides
that a coastal State's boundary extends three miles from its
coastline. Although coastlines are subject to change from natural
or artificial alterations, see,
e. g., United States v.
California, 381 U. S. 139, 176-177
(California II), the Secretary is making no effort to alter
a State's existing rights to sovereignty over submerged lands
within three miles of the coastline. Rather the Corps is, in a
reasonable exercise of its authority, determining whether an
artificial addition to the coastline will increase the State's
control over submerged lands to the detriment of the United States'
legitimate interests. Neither the SLA nor its legislative history
addresses the effect of artificial additions to the coastline, and
this Court sanctioned, in
California II, supra, at 177, the
mechanism exercised by the Secretary in this case. Nor do this
Court's decisions prohibit the Secretary from considering in the
permit review process changes in federal-state boundaries that will
result in the establishment of one boundary for international
purposes-since artificial additions always affect such
boundaries-and a different one for domestic purposes. Specifically,
the Secretary's action does not conflict with
California II,
because that case did not specify a goal of achieving a single
domestic and international coastline. Pp. 583-591.
(c) There is also no merit to Alaska's argument that, even if
the regulations are valid, they do not authorize the Corps to force
a coastal State to abdicate rights to submerged lands as a
condition to a permit's issuance. It is untenable to say that the
United States' legitimate property interests fall outside the
relevant criteria for a decision that requires the Secretary to
determine whether a permit's issuance would affect the "public
interest." And it would make little sense, and be inconsistent with
Congress' intent, to hold that the Corps legitimately may prohibit
construction of a port facility, and yet to deny it the authority
to seek the less drastic alternative of conditioning the permit's
issuance on the State's disclaimer of rights to accreted submerged
lands.
571
The Corps' failure to identify in the regulations the option of
conditioning disclaimers does not render the policy contrary to
law. See
United States v.
Gaubert, 499 U. S. 315, 324. The
Corps cannot be said to have acted in an arbitrary and capricious
manner, since it notified state officials promptly of the objection
to the project, specified a curative option, and afforded Alaska
ample time to consider the disclaimer, consult with federal
officials, and then draft the disclaimer. Nor can Alaska contend
that it lacked notice, since the disclaimer is similar to those
Alaska has filed in past § 10 proceedings. Pp. 591-592.
United States' motion for summary judgment granted; Alaska's
motion for summary judgment denied.
WHITE, J., delivered the opinion for a unanimous Court.
Jeffrey P. Minear argued the cause for the United
States.
With him on the briefs were Solicitor General Starr, Acting
Assistant Attorney General Hartman, Edwin S. Kneedler, and Michael
W Reed.
John G.
Gissberg, Assistant Attorney General of
Alaska, argued the cause for defendant. With him on the briefs were
Charles E. Cole, Attorney General, and
John P.
Griffin, Assistant Attorney General. *
JUSTICE WHITE delivered the opinion of the Court.
Ever since the Nome gold rush of 1899 to 1901, the Seward
Peninsula in western Alaska has been a focus of attempts
* A brief of
amici curiae was filed for the State of
Alabama et al. by
David C.
Slade, James H. Evans,
Attorney General of Alabama,
Daniel E. Lungren, Attorney
General of California,
Thomas F.
Gede, and Special
Assistant Attorney General,
Charles M. Oberly III, Attorney
General of Delaware,
Robert Butterworth, Attorney General of
Florida,
Michael J. Bowers, Attorney General
of Georgia,
Warren Price III, Attorney General of Hawaii,
William J. Guste, Jr., Attorney General of
Louisiana,
Scott Harshbarger, Attorney General of
Massachusetts,
Michael C.
Moore, Attorney General of
Mississippi,
Robert J. Del Tufo, Attorney
General of New Jersey,
Lacy H. Thornburg, Attorney General
of North Carolina,
Dan Morales, Attorney General of Texas,
C. C.
Harness III, Mary Sue Terry, Attorney General of
Virginia, and
Kenneth Eikenberry, Attorney General of
Washington.
572
to gain control over the region's natural riches. See
In
re McKenzie,
180
U. S. 536 (1901). The city of Nome sprang to life almost
overnight, with some 20,000 gold seekers arriving by vessel in the
summer of 1900 when the spring thaw opened up seaward passage.
Since that time, Nome has never been linked to interior Alaska by
road-travelers and traders must arrive by air, sea, or dog sled.
This heavy reliance on seaward traffic, and the lack of a natural
port in the region, inspired Nome in the early 1980's to develop
plans to construct port facilities, including a causeway with road,
a breakwater, and an offshore terminal area, extending into Norton
Sound. The implications of this construction for the federal-state
offshore boundary lie at the heart of this lawsuit, which comes to
us on a bill of complaint filed by the United States. The question
presented is whether the Secretary of the Army may decline to issue
a permit to build an artificial addition to the coastline unless
Alaska agrees that the construction will be deemed not to alter the
location of the federal-state boundary.
I
On August 25, 1982, the city of Nome applied for a federal
permit to build port facilities with the Alaska District Corps of
Engineers of the United States Department of the Army under § 10 of
the Rivers and Harbors Appropriation Act of 1899 (RHA), 30 Stat.
1151, 33 U. S. C. § 403, and § 404 of the Clean Water Act, 86 Stat.
884, as amended, 33 U. S. C. § 1344.1 The Corps issued a Public
Notice of Application for Permit on October 20, 1982, and invited
interested persons to comment on whether the permit should be
granted. On November 22, 1982, a division of the United States
Department of the Interior filed an objection to the issuance of a
Department of the Army permit on the ground that Nome's
construction of these port facilities would cause an
"artificial
1 This recitation of the facts is drawn from the Joint
Stipulation of Facts filed with the Court on September 6, 1991.
573
accretion to the legal coast line." Joint Stipulation of Facts
2. It requested that the Corps require Alaska to waive any future
claims pursuant to the Submerged Lands Act (SLA), 67 Stat. 29, as
amended, 43 U. S. C. § 1301
et seq., that might arise from a
seaward extension of Alaska's coastline caused by the building of
these facilities. The Solicitor of the Interior Department issued
an opinion to the same effect, stating that the Nome project would
"'move Alaska's coastline or baseline seaward of its present
location'" and that" '[f]ederal mineral leasing offshore Alaska
would be affected because the state-federal boundary, as well as
international boundaries, are measured from the coastline or
baseline.'" Joint Stipulation of Facts 2-3. Accordingly, the
Solicitor recommended that" 'approval of the permit application be
conditioned upon Alaska executing an agreement or a quit claim deed
preserving the coastline and the state-federal boundary.'"
Id., at 3.
On July 1, 1983, the Corps transmitted the Solicitor's letter to
the Alaska Department of Natural Resources and advised the State
that the federal permit would not be issued until a "'waiver or
quit claim deed has been issued preserving the coastline and the
State-Federal boundary.'"
Ibid. The Alaska Department of
Natural Resources responded on May 9, 1984, by submitting a
conditional disclaimer of rights to additional submerged lands that
could be claimed by the State as a result of the construction of
the Nome port facility. This disclaimer provided that Alaska
reserved its right to the accreted submerged lands pending a
decision by a court of competent jurisdiction that the federal
officials lacked the authority to compel a disclaimer of
sovereignty as a condition of permit issuance.2 After being advised
by the De-
2 This disclaimer provides in pertinent part:
"1. Subject to paragraph 4 below, the State of Alaska agrees
that the coast line and the boundaries of the State of Alaska are
not to be deemed to be in any way affected by the construction,
maintenance, or operations of the Nome port facility. This document
should be construed as a bind-
574
partment of Justice that this disclaimer was satisfactory, the
Corps completed the permitting process and issued the permit.3
On March 11, 1988, the Minerals Management Service of the
Interior Department published a "Request for Comments and
Nominations for a Lease Sale in Norton Sound and Notice of Intent
to Prepare an Environmental Impact Statement," which solicited
public comment on the Minerals Management Service's proposed lease
sale for minerals, such as gold, near Nome in Norton Sound.
Id., at 5. Alaska submitted comments the following month,
alleging that the proposed Norton Sound Lease Sale involved
submerged lands subject to its Nome project disclaimer and
announcing its intention to file a suit challenging the Corps'
authority to
ing disclaimer by the State of Alaska to the effect that the
state does not, and will not, treat the Nome port development as
extending its coast line for purposes of the Submerged Lands Act,
again subject to paragraph 4 below.
"2. This disclaimer is executed solely for the purpose of
complying with the conditions recommended by the Solicitor of the
Department of the Interior and the Attorney General and maintains
the status quo of the baseline and the state-federal boundary. It
does not affect property or claims to which Alaska is now entitled.
It is not an admission by the State of Alaska or by the United
States as to the present location of the shoreline, coast line, or
the boundaries of the State of Alaska, and is without prejudice to
any contention that any party may now or hereafter make regarding
such present location.
"3. This disclaimer is entered without prejudice to Alaska's
right to file an appropriate action leading to a determination
whether the Corps of Engineers has the legal authority to require
such a disclaimer before issuing a permit for a project which might
affect the coast line.
"4. This disclaimer becomes ineffective and without force and
effect upon a final determination by a court of competent
jurisdiction in any appropriate action that the Corps of Engineers
does not have the legal authority to require such a disclaimer
before issuing a permit for a project which might affect the coast
line." Joint Stipulation of Facts 3-4.
3 The Department of the Army permit was later modified to
reflect changes in the project. See
id., at 5. These changes
are not relevant to the legal issues presented in this case.
575
require a waiver of rights to submerged lands. The State
requested that the Minerals Management Service delete from the
proposed lease sale the approximately 730 acres in dispute from the
Nome project.
The United States then sought leave of this Court to commence
this action, which we granted on April 1, 1991. 499 U. S. 946. The
two parties entered into an agreement pursuant to § 7 of the Outer
Continental Shelf Lands Act (OCSLA), 43 U. S. C. § 1336, and Alaska
Stat. Ann. § 38.05.137 (1989), to direct revenues from the disputed
acreage into an escrow account that would then be paid to the
prevailing party.4 The United States and Alaska both filed motions
for summary judgment, which we now consider.
II
Our principles for evaluating agency interpretations of
congressional statutes are by now well settled. Generally, when
reviewing an agency's construction of a statute administered by
that agency, we first determine "whether Congress has directly
spoken to the precise question at issue."
Chevron U. S.
A. Inc. v.
Natural Resources Defense Council, Inc.,
467 U. S. 837,
842 (1984). Should the statute be silent or ambiguous on the direct
question posed, we must then decide whether the "agency's answer is
based on a permissible construction of the statute."
Id., at
843. In applying these principles, we examine in turn the language
of § 10 of the RHA, the decisions of this Court interpreting it,
and the longstanding construction of the Corps in fulfilling
Congress' mandate.
4 Although the bidding period closed without receipt of any
bids, both sides agree that a live controversy exists in light of
their continuing disagreement as to the location of the
federal-state boundary and the prospect of future lease sales in
the area. We agree that the controversy is not moot, since it
involves a continuing controversy about territorial sovereignty
over these submerged lands.
United States v.
Alaska,
422 U. S. 184, 186 (1975).
576
A
Section 10 of the RHA provides in pertinent part:
"The creation of any obstruction not affirmatively authorized by
Congress, to the navigable capacity of any of the waters of the
United States is prohibited; and it shall not be lawful to build or
commence the building of any ... structures in any ... water of the
United States ... except on plans recommended by the Chief of
Engineers and authorized by the Secretary of the Army; and it shall
not be lawful to excavate or fill, or in any manner to alter or
modify the course, location, condition, or capacity of, any port,
roadstead, haven, harbor, canal, lake, harbor or refuge ... unless
the work has been recommended by the Chief of Engineers and
authorized by the Secretary of the Army prior to beginning the
same." 33 U. S. C. § 403.
The language of this provision is quite broad. It flatly
prohibits the "creation of
any obstruction" to navigable
capacity that Congress itself has not authorized, and it bans
construction of any structure in any water of the United States
"except on plans recommended by the Chief of Engineers and
authorized by the Secretary of the Army."
Ibid. The statute
itself contains no criteria by which the Secretary is to make an
authorization decision; on its face, the provision appears to give
the Secretary unlimited discretion to grant or deny a permit for
construction of a structure such as the one at issue in this case.
The Reports of the Senate and House Committees charged with making
recommendations on the Act contain no hint of whether the drafters
sought to vest in the Secretary the apparently unbridled authority
the plain language of the statute seems to suggest. See H. R. Rep.
No. 1826, 55th Cong., 3d Sess. (1899); S. Rep. No. 1686, 55th
Cong., 3d Sess. (1899).
The statutory antecedents of this provision similarly offer
little insight into Congress' intent. The precursors to § 10 of
577
the 1899 Act were §§ 7 and 10 of the 1890 River and Harbor
Appropriation Act, Act of Sept. 19, 1890, 26 Stat. 454-455. Section
10 prohibited creation of "any obstruction, not affirmatively
authorized by law, to the navigable capacity of any waters, in
respect of which the United States has jurisdiction," and § 7 made
unlawful the building of any "wharf, pier, ... or structure of any
kind outside established harbor lines ... without the permission of
the Secretary of War."
Ibid. Congress slightly amended the
statute in 1892 to add a prohibition on any construction that would
"in any manner ... alter or modify the course, location, condition
or capacity of any port, roadstead, haven, harbor, harbor of
refuge, or inclosure ... unless approved and authorized by the
Secretary of War." 1892 Rivers and Harbors Appropriation Act, Act
of July 13, 1892, § 3, 27 Stat. 110. This statute reflected the
reality that Congress could not itself attend to each such project
individually, as it had from the earliest days of the Republic. As
the House Report accompanying this law observed: "The most
important feature of the bill now presented is the extent it goes
in authorizing the Secretary of War to make contracts for the
completion of some of the more important works of river and harbor
improvement." H. R. Rep. No. 967, 52d Cong., 1st Sess., 2 (1892).
"The departure from the old driblet system of appropriations," the
House Report continued, "was found to work so well that your
committee determined to apply it on a larger scale than in the last
act."
Ibid. See also S. Rep. No. 666, 52d Cong., 1st Sess.,
4-5 (1892). By the time Congress passed the 1899 Act, therefore,
the idea of delegating authority to the Secretary was well
established even if the explanations for the broad language
employed by Congress to carry out such a directive were sparse.
B
The substance of the RHA has been unchanged since its enactment,
and the Court has had only a few occasions to decide whether to
construe it broadly or narrowly. In one
578
such case, for example, the Court considered whether to issue a
writ of mandamus to order the Secretary of War and the Chief of
Engineers to grant a permit to build a wharf in navigable waters.
United States ex rel. Greathouse v.
Dern, 289 U. S. 352 (1933).
Although it was stipulated that the project would not interfere
with navigability, the Secretary nevertheless denied the permit on
the ground that the wharf would impede plans developed by the
United States to create a means of access to the proposed George
Washington Memorial Parkway along the Potomac River in northern
Virginia.
Id., at 355. The permit applicant argued that the
Secretary's refusal to grant it was contrary to law on the theory
that RHA § 10 authorized consideration only of the proposed
construction's effects on navigation. In refusing to issue the writ
of mandamus under equitable principles, the Court noted that
petitioners' argument could be accepted "only if several doubtful
questions are resolved in [petitioners'] favor," one of which was
"whether a mandatory duty is imposed upon the Secretary of War by §
10 of the Rivers and Harbors Appropriation Act to authorize the
construction of the proposed wharf if he is satisfied that it will
not interfere with navigation."
Id., at 357.
Nor has such a broad interpretation of the RHA been exceptional.
In
United States v.
Republic Steel Corp., 362 U. S.
482, 491 (1960), the Court observed: "We read the 1899 Act
charitably in light of the purpose to be served. The philosophy of
the statement of Mr. Justice Holmes in
New Jersey v.
New
York, 283 U. S.
336, 342 [1931], that 'A river is more than an amenity, it is a
treasure,' forbids a narrow, cramped reading of either § 13 or of §
10." And as we stated in a later case: "Despite some difficulties
with the wording of the Act, we have consistently found its
coverage to be broad. And we have found that a principal
beneficiary of the Act, if not the principal beneficiary, is the
Government
579
itself."
Wyandotte Transportation Co. v.
United
States, 389 U. S. 191, 201 (1967) (citations omitted).
In
United States v.
Pennsylvania Industrial Chemical
Corp., 411 U. S.
655 (1973), we applied this broad approach to the RHA in a
somewhat analogous situation under a provision enacted
contemporaneously with § 10. RHA § 13 provides that the Secretary
of the Army "may permit the deposit" of refuse matter "whenever in
the judgment of the Chief of Engineers anchorage and navigation
will not be injured thereby." 33 U. S. C. § 407. The case presented
the question whether the statute
required the Secretary to
allow such discharges where they had no effect on navigation. We
held that the statute should not be so construed. In reaching this
conclusion, we observed that "even in a situation where the Chief
of Engineers concedes that a certain deposit will not injure
anchorage and navigation, the Secretary need not necessarily permit
the deposit, for the proviso makes the Secretary's authority
discretionary-i.
e., it provides that the Secretary 'may
permit' the deposit." 411 U. S., at 662. We further noted that § 13
"contains no criteria to be followed by the Secretary in issuing
such permits,"
id., at 668, and rejected the argument that
the agency's statutory authority should be construed narrowly.
In our view, § 10 should be construed with similar breadth.
Without specifying the factors to be considered, § 10 provides
that "it shall not be lawful to build or commence the building" of
any structure in navigable waters of the United States
"except
on plans recommended by the Chief of Engineers and authorized by
the Secretary of the Army." 33 U. S. C. § 403 (emphasis added).
In light of our holding in
Pennsylvania Chemical Corp. that
the Secretary's discretion under § 13 was not limited to
considering the effect of a refuse deposit on navigation, it
logically follows that the Secretary's authority is not confined
solely to considerations
580
of navigation in deciding whether to issue a permit under §
10.5
C
We now examine the administrative interpretation of § 10 down
through the years with respect to the range of discretion extended
to the Corps and the Secretary. An opinion by Attorney General
George W. Wickersham in 1909, for example, denied the Secretary of
War and the Chief of Engineers the authority to decide whether to
issue a permit under RHA § 10 after "consider[ation of] questions
relating to other interests than those having to do with the
navigation of the waters." 27 Op. Atty. Gen. 284, 288.
This narrow view of the Secretary's authority persisted within
the agency for many decades. "Until 1968," according to one
document produced by the Corps of Engineers, "the Corps
administered the 1899 Act regulatory program only to protect
navigation and the navigable capacity of the nation's waters." 42
Fed. Reg. 37122 (1977). In 1968, the regulations were amended so
that the general policy guidance for permit issuance included
consideration of "the effects of permitted activities on the public
interest including
5 Alaska reads
Pennsylvania Chemical Corp. differently,
suggesting that the case does not relate to the scope of the Corps'
permitting authority under RHA § 10, but instead is confined to the
issue of how broadly the agency's prosecutorial discretion should
be defined. We disagree. Our analysis of the RHA in that case was
not at all contingent on the underlying issue relating to a
prosecution rather than a permitting decision. We placed great
weight on the reading by the federal courts, which "almost
universally agreed, as did the courts below, that § 13 is to be
read in accordance with its plain language as imposing a flat ban
on the unauthorized deposit of foreign substances into navigable
waters, regardless of the effect on navigation." 411 U. S., at 671.
Alaska also cites
Wisconsin v.
Illinois, 278 U. S. 367, 418
(1929), for the proposition that § 10 only authorizes
considerations of navigability in permit issuance decisions. We do
not read the case in the same way. In our view,
Wisconsin v.
Illinois is more properly read to limit the Secretary's
authority to issue a permit for nonnavigability reasons when an
effect of the project would be to obstruct navigation.
Id.,
at 417.
581
effects upon water quality, recreation, fish and wildlife,
pollution, our natural resources, as well as the effects on
navigation." 33 CFR § 209.330(a).6
Yet even after the Corps adopted this more expansive reading,
which the language of the statute and our decisions interpreting it
plainly authorized, the House Committee on Government Operations
nevertheless concluded that the Corps in practice was still not
interpreting its statutory authority broadly enough. See H. R. Rep.
No. 91-917, p. 6 (1970). The Committee was of the view that the
Corps' earlier "restricted view of the 1899 act ... was not
required by the law."
Id., at 2. The Report summarized our
holdings to the effect that the statutory language of RHA § 10
should be interpreted generously,
id., at 2-4, and commended
the Corps "for recognizing [in 1968] its broader responsibilities"
pursuant to its permitting authority under the RHA,
id., at
5. The Committee emphasized that the Corps "should instruct its
district engineers ... to increase their emphasis on how the work
will affect
all aspects of the public interest, including
not only navigation but also conservation of natural resources,
fish and wildlife, air and water quality, esthetics, scenic view,
historic sites, ecology, and other public interest aspects of the
waterway."
Id., at 6 (emphasis added). The Corps did not
react to this "advice" until after the Fifth Circuit's decision in
Zabel v.
Tabb, 430 F.2d
199 (1970). There the court upheld the Corps' consideration of
environmental factors in its permitting decision even though the
project would not interfere with navigation, flood control, or
power production. After this decision, the Corps began the long
process of changing its regulations governing permit application
evaluations. See 42 Fed. Reg. 37122 (1977) (describing historical
background of the agency's practice). In 1976, the Corps issued
regulations interpreting its statutory authority
6 The prior version of this regulation stated that "[t]he
decision as to whether a permit will be issued must rest primarily
upon the effect of the proposed work on navigation." 33 CFR
§209.330(a) (1967).
582
as empowering it to take into account a full range of economic,
social, and environmental factors. See 33 CFR § 209. 120(f)(1).
The regulations at issue in this lawsuit, therefore, reflect a
broad interpretation of agency power under § 10 that was consistent
with the language used by Congress and was well settled by this
Court and the Army Corps of Engineers. With respect to the breadth
of the Corps' public interest review, these regulations are
substantially the same as those adopted in 1976 and provide:
"(a) Public Interest Review. (1) The decision whether to
issue a permit will be based on an evaluation of the probable
impacts, including cumulative impacts, of the proposed activity and
its intended use on the public interest. Evaluation of the probable
impact which the proposed activity may have on the public interest
requires a careful weighing of all those factors which become
relevant in each particular case. The benefits which reasonably may
be expected to accrue from the proposal must be balanced against
its reasonably foreseeable detriments. The decision whether to
authorize a proposal, and if so, the conditions under which it will
be allowed to occur, are therefore determined by the outcome of
this general balancing process. That decision should reflect the
national concern for both protection and utilization of important
resources. All factors which may be relevant to the proposal must
be considered including the cumulative effects thereof: among those
are conservation, economics, aesthetics, general environmental
concerns, wetlands, historic properties, fish and wildlife values,
flood hazards, floodplain values, land use, navigation, shore
erosion and accretion, recreation, water supply and conservation,
water quality, energy needs, safety, food and fiber production,
mineral needs, considerations of property ownership and, in
583
general, the needs and welfare of the people." 33 CFR §
320.4(a)(1) (1991).
These regulations guide the Secretary's consideration of "public
interest" factors to evaluate in determining whether to issue a
permit under § 10 of the RHA. To the extent Alaska contends that
these regulations are invalid because they authorize the Secretary
to consider a wider range of factors than just the effects of a
project on navigability, we reject this position. The State's
reading of the Secretary's regulatory authority in this respect is
inconsistent with the statute's language, our cases interpreting
it, and the agency's practice since the late 1960's.
III
Alaska appears to concede some ground by acknowledging that the
Secretary may not be limited solely to issues of navigability in
considering whether to issue a § 10 permit.7 The State in effect
contends that, even if the statute authorizes consideration of
factors other than just navigability, the regulations authorizing
consideration of a project's consequences on the federal-state
boundary exceed the Secretary's statutory mandate. The regulation
at issue provides in pertinent part as follows:
7 Alaska acknowledges, for example, that the Secretary can take
into account the polluting consequences of a project, see Brief for
Alaska 17, though the language of § 10 includes no mention of such
effects. And a brief filed by numerous States and the Coastal
States Organization as
amici curiae appears to go even
further by suggesting that "the Army Corps may deny a permit for
the construction of a harbor facility if it is determined that the
construction or facility would result in an obstruction to
navigation,
endanger human health or welfare, the marine
environment, or the economic potential." Brief for Alabama et
al. as
Amici Curiae 17 (emphasis added). Plainly these
factors are not mentioned in RHA § 10. As our analysis will make
clear, the United States is fundamentally correct that there is no
legal basis for authorizing the Secretary to consider these factors
but not the effects of a project on the federalstate boundary.
584
"(f)
Effects on limits of the territorial sea. Structures
or work affecting coastal waters may modify the coast line or base
line from which the territorial sea is measured for purposes of the
Submerged Lands Act and international law .... Applications for
structures or work affecting coastal waters will therefore be
reviewed specifically to determine whether the coast line or base
line might be altered. If it is determined that such a change might
occur, coordination with the Attorney General and the Solicitor of
the Department of the Interior is required before final action is
taken. The district engineer will ... request [the Solicitor's]
comments concerning the effects of the proposed work on the outer
continental rights of the United States .... The decision on the
application will be made by the Secretary of the Army after
coordination with the Attorney General." 33 CFR § 320.4 (1991).
Alaska advances several arguments why such concerns exceed the
scope of the Secretary's authority. We address each in turn.
A
Alaska's first argument proceeds from the premise that the SLA
trumps the RHA for purposes of determining whether the Secretary
may condition issuance of a permit on the State's disclaimer of
sovereignty over the accreted submerged lands. The SLA establishes
that a coastal State's boundary extends seaward "to a line three
geographical miles distant from its coast line." 43 U. S. C. §
1312. The seaward boundary of state-owned lands is measured from a
base line that is subject to change from natural and artificial
alterations. See
United States v.
California,
381 U. S. 139,
176-177 (1965);
United States v.
Louisiana (Louisiana
Boundary Case), 394 U. S. 11, 40, n. 48
(1969). In applying these rules, Alaska asserts that because the
SLA extends a State's boundary seaward three miles from its
coastline and
585
because our decisions have authorized artificial additions to
affect determinations of the base line, the Army cannot by agency
fiat override the will of Congress, as interpreted by our Court.
Cf.
Louisiana Pub. Servo Comm'n v.
FCC, 476 U. S.
355, 376 (1986). According to Alaska, federalism interests should
preclude our finding that the RHA confers power on the Secretary to
condition issuance of a § 10 construction permit on the disclaimer
of a change in the preproject federal-state boundary. See
Organized Village of Kake v.
Egan, 369 U. S. 60 (1962).
The United States responds that Congress has already given the
requisite authority to the agency through enactment of the RHA, and
that the Secretary appropriately complied with that statute. In the
Federal Government's view, the RHA sets out an absolute prohibition
on construction of "any obstruction" in navigable waters, 33 U. S.
C. § 403, and vests discretion in the Secretary of the Army to
grant exceptions on a case-by-case basis when a structure is
recommended by the Army Corps of Engineers. The United States
maintains that the Secretary has the discretion to identify
relevant considerations for issuing or denying a permit. Cf.
Jay v.
Boyd, 351 U. S. 345, 353-354
(1956).
We find the United States' argument to be the more persuasive
one. Contrary to Alaska's position, the agency here is
not
usurping authority. The Secretary is making no effort to alter the
existing rights of a State to sovereignty over submerged lands
within three miles of the coastline. The SLA makes this guarantee
and nothing in the Corps' practice, as exercised in this case,
alters this right. What the Corps is doing, and what we find a
reasonable exercise of agency authority, is to determine whether an
artificial addition to the coastline will increase the State's
control over submerged lands to the detriment of the United States'
legitimate interests. If the Secretary so finds, nothing in the SLA
prohibits this fact from consideration as part of the "public
interest" review process under RHA § 10. Were we
586
to accept Alaska's position, the Federal Government's interests
in submerged lands outside the State's zone of control would
conceivably become hostage to a State's plans to add artificial
additions to its coastline. And if Alaska's reading of the
applicable law were followed to its logical extreme, the United
States would be powerless to protect
its interests in
submerged lands if a State were to build an artificial addition to
the coastline for the sole purpose of gaining sovereignty over
submerged lands within the United States' zone, so long as the
project did not affect navigability or cause pollution. Alaska
points us to nothing in the SLA or to its legislative history that
mandates such a result.8
It is important to note that neither the SLA itself, nor any of
its legislative history, addresses the question of how artificial
additions to the coastline affect the 3-mile limit, as we observed
in
United States v.
California, 381 U. S. 139, 176, and
n. 50 (1965). In that case, however, we did hold that international
law recognized the seaward expansion of sovereignty through
artificial additions to the coastline.
Id., at 177. But we
also stated that "the Special Master recognized that the United
States, through its control over navigable waters, had power to
protect its interests from encroachment by unwarranted artificial
structures, and that the effect of any future changes could thus be
the subject of agreement between the parties."
Id., at 176.
Alaska suggests that this language should not be read to vest power
in the Secretary to condition permits on sovereignty disclaimers
because the Special Master's report cited by the Court was
written
8 Indeed, the SLA also excepts from its operation "any rights
the United States has in lands presently and actually occupied by
the United States under claim of right." 43 U. S. C. § 1313(a).
Furthermore, as to the lands granted to the States, the SLA
provides that "[t]he United States retains all its navigational
servitude and rights in and powers of regulation and control of
said lands and navigable waters for the constitutional purposes of
commerce, navigation, national defense, and international affairs."
§ 1314(a).
587
prior to enactment of the SLA. Brief for Alaska 26 (citing
California, supra, at 143). This contention fails to
persuade us, however, because we have already noted that the SLA
did not specifically address artificial changes to the coastline,
and because our opinion in
California sanctioned the
mechanism exercised by the Secretary in this case: "Arguments based
on the inequity to the United States of allowing California to
effect changes in the boundary between federal and state submerged
lands by making future artificial changes in the coastline are met,
as the Special Master pointed out, by the ability of the United
States to protect itself through its power over navigable waters."
381 U. S., at 177. Such "power over navigable waters" would be
meaningless indeed if we were to accept Alaska's view that RHA § 10
permitted the United States to exercise it only when the State's
project affected navigability or caused pollution.9
B
Alaska next contends that our decisions do not permit the
Secretary to consider changes in federal-state boundaries as part
of the § 10 "public interest" review process. First, the State
suggests that such consideration would conflict with our decision
in
California, supra, at 176-177. In that case we adopted
the Convention on the Territorial Sea and the
9 Alaska's argument is also weakened by the existence of the
OCSLA, 43 U. S. C. § 1331
et seq., which provides that the
United States has "jurisdiction, control, and power of disposition"
over the Outer Continental Shelf, submerged lands identified by
Congress as a "vital national resource reserve" of great value. §§
1332(1) and (3). The "public interest" review undertaken by the
Secretary in determining whether to issue a § 10 permit explicitly
considers "the effects of the proposed work on the outer
continental rights of the United States." 33 CFR §320.4(f) (1991).
Such a consideration in some form has been part of the equation of
factors subject to the Secretary's review process since 1969. See
33 CFR §209.120(d)(4) (1969). It is perfectly consistent with the
OCSLA for the Secretary to consider a project's effects on United
States' rights to submerged lands in deciding whether to issue a §
10 permit.
588
Contiguous Zone, Apr. 29, 1958, 15 U. S. T. 1607, T. 1. A. S.
No. 5639, for purposes of the SLA, explaining that such a result
would establish "a single coastline for both the administration of
the Submerged Lands Act and the conduct of our future international
relations (barring an unexpected change in the rules established by
the Convention)." 381 U. S., at 165. Because construction of an
artificial port facility will, in certain circumstances, cause a
change in the United States'
international seaward
boundary,lO Alaska contends that the goal of a "single" coastline
will be frustrated if we permit the Secretary to establish, in
effect, one boundary for international purposes and a different one
for domestic purposes.
As the United States maintains, however, our decision in
California did not specify a "goal" of achieving a "single"
coastline. Rather, our purpose was to give the SLA a "definiteness
and stability." Such aims, of course, can be achieved without
creating perfect symmetry between the Convention and the Act.
Stability in a boundary line is achieved when the Secretary decides
whether a State must disclaim its rights to accreted submerged
lands caused by artificial additions just as surely as it is with
ordinary coastline determinations occasioned by natural changes.
The State intimates that problems relating to fishing, salvage
operations, and criminal jurisdiction will result from "[u]nstable
and unpredictable administrative rules [that] will create confusion
in many areas." Reply Brief for Alaska 6. Such speculative
concerns, however, arise only when the 3-mile
10 Under international law, artificial alterations to the
coastline will extend a country's boundaries for purposes of
determining the territorial sea and exclusive economic zone.
Convention on the Territorial Sea and the Contiguous Zone, Apr. 29,
1958, 15 U. S. T. 1607, T. I. A. S. No. 5639, art. 8; Brief for
United States 25, n. 6 (stating that "[t]he United States has not
ratified [the United Nations Convention on the Law of the Sea], but
has recognized that its baseline provisions reflect customary
internationallaw").
589
boundary itself is indefinite.ll But uncertainty in cases such
as this one surely ends when the State disclaims its sovereignty
over accreted submerged lands. The 3-mile boundary remains the
same. And in those circumstances in which the Secretary does not
require a disclaimer and the 3-mile federal-state boundary extends
from the new base line, presumably should there arise any of the
federal-state problems Alaska identifies, changes in nautical maps
could readily be amended to reflect such changes. Nothing in the
parties' lodgings with the Court suggests why fishermen and other
sailors who rely on such charts will suffer prejudice by the rule
we announce today. 12
11 We add that variations between international and
federal-state boundaries are not uncommon. As we recognized in
United States v.
California, 381 U. S. 139, 165-166
(1965), changes in Convention rules might render the international
and federal-state boundaries noncoincident. In the SLA itself,
Congress recognized the possibility that variations between
international and federal-state boundaries might occur by providing
that a decree fixed by our Court "shall not be ambulatory" even
though erosion or accretion may alter the international boundary.
43 U. S. C. § 1301(b). We also note that the President's
proclamation of a 12-mile territorial sea for international law
purposes functionally established a distinction between the
international and the federal-state boundaries. See
Argentine
Republic v.
Amerada Hess Shipping Corp., 488 U. S. 428,441, n. 8
(1989). Finally, as the United States accurately points out, some
coastal States have created or permitted variations between the
international boundary and the federal-state boundaries through
compromise agreements reached with the United States. See
Mississippi v.
United States, 498 U. S. 16 (1990).
12 Alaska also suggests that the regulations at issue in this
case conflict with our decision in
Nollan v.
California
Coastal Comm'n, 483 U. S. 825 (1987),
which held that a coastal commission could not condition the
granting of a construction permit on the conferring of a public
access easement across a landowner's beach. Alaska quotes language
in
Nollan to the effect that "unless the permit condition
serves the same governmental purpose as the development ban, the
building restriction is not a valid regulation of land use but an
'out-and-out plan of extortion.'"
Id., at 837. This rule,
however, has no applicability in a situation such as this one, in
which we evaluate the statutory authority underlying an agency's
action.
Id., at 836. Even were the
Nollan situation
analogous to that presented here,
590
Accordingly, we find no merit in Alaska's argument that, in
conducting the permit review process under RHA § 10, the Secretary
cannot consider a project's effects on the federal-state
boundary.
IV
Finally, Alaska maintains that even if the regulations
are authorized by the RHA, the Secretary's actions were not
consistent with those regulations. The State argues that nothing in
the applicable regulations authorizes the Army Corps of Engineers
to force a coastal State to abdicate rights to submerged lands as a
condition to issuance of a permit for construction of a shoreline
project. Alaska suggests that "the regulation addresses activities
on submerged lands, not the property interests in the submerged
lands." Brief for Alaska 28. Nor can the Secretary derive authority
to condition disclaimers on interagency coordination
responsibilities, according to the State, because 33 CFR §
320.4(g)(6) (1991) states specifically that "dispute[s] over
property ownership will not be a factor in the Corps' public
interest decision." Alaska further posits that the regulations at §
320.4(a)(1), which include numerous factors to be evaluated in
balancing the public interest, do not make reference to the United
States' property interests.
As our analysis in Parts III-A and III-B suggests, we do not
find this argument persuasive. The regulations indicate that the
Corps may include in its evaluation the "effects of the proposed
work on the outer continental rights of the United States." 33 CFR
§ 320.4(f) (1991). It is untenable to maintain that the legitimate
property interests of the United States fall outside the relevant
criteria for a decision that requires the Secretary to determine
whether issuance of a permit would affect the "public interest."
The regula-
we note that Alaska would gain no benefit because the purpose
behind imposing a condition for issuance of the permit-to protect
federal rights to submerged lands-is the same as that for denying
the permit.
591
tions at § 320.4(g)(6), upon which Alaska places some weight,
clearly do not speak to property disputes of the type at issue
here. Moreover, we are unpersuaded by Alaska's contention that the
authority to require disclaimers cannot be inferred from the
regulatory scheme. It would make little sense, and be inconsistent
with Congress' intent, to hold that the Corps legitimately may
prohibit construction of a port facility, and yet to deny it
the authority to seek the less drastic alternative of conditioning
issuance of a permit on the State's disclaimer of rights to
accreted submerged lands.
Alaska also makes various challenges to the administrative
procedures followed in this case, and especially to the alleged
shortcoming of the Secretary in not formalizing the authority to
condition disclaimers of sovereignty in the permitissuance
process.13 The "policy" followed in this case, however, is not
contrary to law simply because of its specific omission from the
regulations. See
United States v.
Gaubert, 499 U. S. 315, 324 (1991)
(observing that some agencies "establish policy on a case-by-case
basis, whether through adjudicatory proceedings or through
administration of agency programs"). Certainly the Corps
communicated its intention openly to the appropriate state
officials, and therefore did not force Alaska" 'to litigate with
agencies on the basis of secret laws.'"
Renegotiation Bd. v.
Bannercraft Clothing Co., 415 U. S. 1, 9 (1974)
(quoting the case below, 151 U. S. App. D. C. 174, 181,
466 F.2d
345, 352 (1972)). See Joint Stipulation of Facts 24a-25a. The
United States avers that such disclaimers have been requested on a
case-
13 The State also contests the legality of the Secretary's
actions in this case under the Administrative Procedure Act, 5 U.
S. C. § 706, especially the regulations at 33 CFR § 320.4(f) (1991)
that authorize the Secretary to take into account changes in the
base line in making § 10 permit issuance decisions. Contrary to
Alaska's contention, these regulations were adopted through notice
and comment proceedings, see 39 Fed. Reg. 12115 (1974); 38 Fed.
Reg. 12217 (1973), as were subsequent amendments, see 51 Fed. Reg.
41220 (1986); 42 Fed. Reg. 37122 (1977).
592
by-case basis since 1970 and that "Alaska fails to explain why
the Corps' approach is improper or what specific advantages would
result from identifying the option through a formal regulation."
Brief for United States in Opposition 16.
We cannot say that in this case the Corps acted in an arbitrary
or capricious manner. It notified state officials promptly that the
Solicitor of the Interior Department objected to issuance of the
permit; it specified a curative option that could be pursued; and
it afforded Alaska ample time to consider the disclaimer, to
consult with federal officials, and then to draft the disclaimer.
See Joint Stipulation of Facts 2-7, App. to Joint Stipulation of
Facts lla-16a, 17a-19a, 20a21a, 22a-23a, 24a, 26a-31a. Nor can
Alaska contend that it lacked notice, since the disclaimer it filed
in this case is similar in form to those which it has filed in past
§ 10 permit proceedings. See Joint Lodging of Permits and
Disclaimers.14 We conclude that the Corps' actions in this case
were neither arbitrary nor capricious.
V
Accordingly, we hold that the Secretary of the Army acted within
his discretion in conditioning approval of the Nome
14 Indeed, one such disclaimer dated December 1, 1980, for a
project in the oil-rich Prudhoe Bay, stated as follows:
"In consideration of the issuance, by the Secretary of the Army
or his authorized representative, of a permit for construction of
an extension to the ARCO dock at Prudhoe Bay for purposes of the
waterflood project designed to result in substantial secondary
recovery from the existing Prudhoe Bay oil and gas field, pursuant
to the application filed by ARCO and SORIO, the State of Alaska
agrees that the shoreline, coast line, and boundaries of the State
of Alaska are not to be deemed to be in any way affected by the
construction, maintenance, or operation of such extension. This
Agreement should be construed as a binding disclaimer by the State
of Alaska to the effect that the State does not, and will not,
treat the ARCO dock waterflood extension as extending its coast
line for purposes of the Submerged Lands Act." Joint Lodging of
Permits and Disclaimers 5(a)2.
593
port facilities construction permit on a disclaimer by Alaska of
a change in the federal-state boundary that might be caused by the
Nome project. The United States' motion for summary judgment is
granted, and Alaska's motion for summary judgment is denied.
It is so ordered.
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