CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1996
Syllabus
UNITED STATES
v. ALASKA
ON EXCEPTIONS TO REPORT OF SPECIAL MASTER
No. 84, Orig. Argued February 24, 1997-Decided June 19, 1997
This suit involves a dispute between the United States and
Alaska over the ownership of submerged lands along the State's
Arctic Coast. The Alaska Statehood Act expressly provides that the
federal Submerged Lands Act applies to Alaska. The latter Act
entitles Alaska to submerged lands beneath tidal and inland
navigable waters and submerged lands extending three miles seaward
of the State's coastline. The United States claims a right to offer
lands in the Beaufort Sea for mineral leasing, and Alaska seeks to
quiet its title to coastal submerged lands within two federal
reservations, the National Petroleum ReserveAlaska (Reserve) and
the Arctic National Wildlife Refuge, formerly known as the Arctic
National Wildlife Range (Range). Both parties have filed exceptions
to the Special Master's Report.
Held:
1. Alaska's exception to the recommended ruling that the State's
submerged lands in the vicinity of barrier islands along its Arctic
Coast should be measured as a 3-mile belt from a coastline
following the normal baseline under the Convention on the
Territorial Sea and the Contiguous Zone (Convention) is overruled.
The coastline from which a State measures its Submerged Lands Act
grant corresponds to the baseline from which the United States
measures its territorial sea under the Convention. According to the
Convention's normal baseline approach, each island has its own belt
of territorial sea, measured outward from a baseline corresponding
to the low-water line along the island's coast. Alaska objects to
the application of this approach to the Stefans-
2
Syllabus
son Sound-where some offshore islands are more than six miles
apart or more than six miles from the mainland-because it gives the
United States "enclaves" of submerged lands, wholly or partly
surrounded by state-owned submerged lands, beneath waters more than
three miles from the mainland but not within three miles of an
island.
United States v.
Louisiana, 470 U. S. 93, does not
foreclose the conclusion that the Convention's normal baseline
principles apply here. Alaska has not identified a firm and
continuing United States rule treating waters between the mainland
and fringing islands as "inland waters" when the openings between
the off-lying islands are no more than 10 miles wide. The sources
before the Master showed that, in its foreign relations,
particularly in the period 1930 to 1949, the United States had
advocated a rule under which objectionable pockets of high seas
between the mainland and fringing islands would be assimilated to a
coastal nation's territorial sea. Such a rule would have been
inconsistent with Alaska's 10mile rule, under which no
objectionable pockets of high seas would have existed. The United
States also advocated a rule for treating the waters of a strait
leading to an inland sea as inland waters, but it is not equivalent
to Alaska's rule. Pp. 7-22.
2. Alaska's exception to the recommended ruling that a gravel
and ice formation known as Dinkum Sands is not an island
constituting part of Alaska's coastline under the Submerged Lands
Act is overruled. The Master did not err in concluding that Dinkum
Sands does not meet the standard for an island because it is
frequently below mean high water. The Convention's drafting history
suggests that, to qualify as an island, a feature must be above
high water except in abnormal circumstances. It does not support
the broader conclusion that a feature with a seasonal loss in
elevation that brings it below mean high water, such as Dinkum
Sands, qualifies. Nor is there any precedent for deeming Dinkum
Sands an island during the periods when it is above mean high
water. Pp.22-32.
3. Alaska's exception to the recommended ruling that submerged
lands beneath tidally influenced waters within the Reserve's
boundary did not pass to Alaska at statehood is overruled. The
United States can reserve submerged lands under federal control for
an appropriate public purpose. Under the strict standards of
Utah Div. of State Lands v.
United States, 482 U. S. 193, the 1923
Executive Order creating the Reserve reflected a clear intent to
include submerged lands within the Reserve. In addition to the fact
that the Order refers to coastal features and necessarily covers
the tidelands, excluding submerged lands beneath the coastal
features would have been inconsistent with the Reserve's purpose-to
secure an oil supply that would necessarily exist
3
beneath both submerged lands and uplands. Section l1(b) of the
Alaska Statehood Act, which noted that the United States owned the
Reserve and included a statement of exclusive legislative
jurisdiction under the Enclave Clause, reflects Congress' intent to
ratify the inclusion of submerged lands within the Reserve and to
defeat the State's title to those lands. Pp. 32-46.
4. The United States' exception to the recommended ruling that
offshore submerged lands within the Range's boundaries passed to
Alaska at statehood is sustained. The United States did not
transfer such lands to Alaska at statehood. The 1957 Bureau of
Sport Fisheries and Wildlife application to create a wildlife
refuge clearly encompassed submerged lands. Since its seaward
boundary is the low-water line along Alaska's coast, the Range
necessarily encompasses the tidelands. The justification statement
accompanying the application, which describes the habitat of
various species along the coast and beneath inland waters, further
reflects a clear intent to withhold submerged lands. A Department
of the Interior regulation in effect when the application was filed
and when Congress passed the Alaska Statehood Act operated to
"segregate" the lands for which the application was pending.
Section 6(e) of that Act expressly prevented lands that had been
"set apart as [a] refug[e]" from passing to Alaska. It follows
that, because all of the lands covered by the 1957 application had
been so "set apart," the United States retained title to submerged
lands within the Range. Pp.46-61.
Exceptions of Alaska overruled; exception of United States
sustained; Special Master's recommendations adopted to the extent
consistent with the Court's opinion.
O'CONNOR, J., delivered the opinion of the Court, in which
STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined, and in
Parts I, II, and III of which REHNQUIST, C. J., and SCALIA and
THOMAS, JJ., joined. THOMAS, J., filed an opinion concurring in
part and dissenting in part, in which REHNQUIST, C. J., and SCALIA,
J., joined,
post, p. 62.
Jeffrey P. Minear argued the cause for the United
States.
With him on the briefs were Acting Solicitor General Dellinger,
Assistant Attorney General Schiffer, Deputy Solicitor General
Kneedler, and Michael W Reed.
G.
Thomas Koester argued the cause for defendant. With
him on the briefs were
Bruce M. Botelho, Attorney
General
4
of Alaska,
Joanne M. Grace, Assistant Attorney General,
and
John Briscoe. *
JUSTICE O'CONNOR delivered the opinion of the Court. This
original action presents a dispute between the United States and
the State of Alaska over the ownership of submerged lands along
Alaska's Arctic Coast. In 1979, with leave of the Court, 442 U. S.
937, the United States filed a bill of complaint setting out a
dispute over the right to offer lands in the Beaufort Sea for
mineral leasing. Alaska counterclaimed, seeking a decree quieting
its title to coastal submerged lands within two federal
reservations, the N ational Petroleum Reserve-Alaska and the Arctic
National Wildlife Range (now the Arctic National Wildlife Refuge).
The Court appointed a Special Master. 444 U. S. 1065 (1980).
Between 1980 and 1986, the Special Master oversaw extensive
hearings and briefing. Before us now are the report of the Special
Master and the exceptions of the parties. We overrule Alaska's
exceptions and sustain that of the United States.
I
Alaska and the United States dispute ownership of lands
underlying tidal waters off Alaska's North Slope. The region is
rich in oil, and each sovereign seeks the right to grant
*Briefs of
amici curiae were filed for the State of
Alabama et al. by
Daniel E. Lungren, Attorney General of
California,
Roderick E. Walston, Chief Assistant Attorney
General, and
Jan S.
Stevens, Assistant Attorney
General, and by the Attorneys General for their respective
jurisdictions as follows:
Jeff Sessions of Alabama,
Grant
Woods of Arizona,
Jane Brady of Delaware,
Margery
S.
Bronster of Hawaii,
Alan G.
Lance of Idaho,
Richard P. Ieyoub of Louisiana,
Mike Moore of
Mississippi,
Joseph P. Mazurek of Montana,
Frankie Sue
Del Papa of Nevada,
Michael F.
Easley of North
Carolina,
Heidi Heitkamp of North Dakota,
Jan Graham
of Utah,
Jeffrey L. Amestoy of Vermont,
James S.
Gilmore III of Virginia, and
Julio A. Brady of the
Virgin Islands; and for the Wilderness Society et al. by
Peter
Van Tuyn, Eric Jorgensen, and
James B. Dougherty.
5
leases for offshore exploration and to share in oil and gas
revenues from the contested lands.
Several general principles govern our analysis of the parties'
claims. Ownership of submerged lands-which carries with it the
power to control navigation, fishing, and other public uses of
water-is an essential attribute of sovereignty.
Utah Div. of
State Lands v.
United States, 482 U. S. 193, 195
(1987). Under the doctrine of
Lessee of Pollard v.
Hagan,
3 How. 212, 228-229 (1845), new States are admitted to the
Union on an "equal footing" with the original 13 Colonies and
succeed to the United States' title to the beds of navigable waters
within their boundaries. Although the United States has the power
to divest a future State of its equal footing title to submerged
lands, we do not "lightly infer" such action.
Utah Div. of State
Lands, supra, at 197.
In
United States v.
California, 332 U. S. 19 (1947)
(California 1), we distinguished between submerged lands
located shoreward of the low-water line along the State's coast and
submerged lands located seaward of that line. Only lands shoreward
of the low-water line-that is, the periodically submerged tidelands
and inland navigable waters-pass to a State under the equal footing
doctrine. The original 13 Colonies had no right to lands seaward of
the coastline, and newly created States therefore cannot claim them
on an equal footing rationale.
Id., at 30-33. Accordingly,
the United States has paramount sovereign rights in submerged lands
seaward of the low-water line.
Id., at 33-36. In 1953,
following the
California I decision, Congress enacted the
Submerged Lands Act, 67 Stat. 29, 43 U. S. C. § 1301
et seq.
That Act "confirmed" and "established" States' title to and
interest in "lands beneath navigable waters within the boundaries
of the respective States." § 1311(a). The Act defines "lands
beneath navigable waters" to include both lands that would
ordinarily pass to a State under the equal footing doctrine and
lands over which the United States has paramount sovereign rights,
beneath a 3-mile belt of the ter-
6
ritorial sea. § 1301(a). The Act essentially confirms States'
equal footing rights to tidelands and submerged lands beneath
inland navigable waters; it also establishes States' title to
submerged lands beneath a 3-mile belt of the territorial sea, which
would otherwise be held by the United States.
California ex rel.
State Lands Comm'n v.
United States, 457 U. S. 273, 283
(1982). The Alaska Statehood Act expressly provides that the
Submerged Lands Act applies to Alaska. Pub. L. 85-508, § 6(m), 72
Stat. 343 (1958). As a general matter, then, Alaska is entitled
under both the equal footing doctrine and the Submerged Lands Act
to submerged lands beneath tidal and inland navigable waters, and
under the Submerged Lands Act alone to submerged lands extending
three miles seaward of its coastline.
In hearings before the Special Master, the parties identified 15
specific issues for resolution, which we treat in three groups.
First, the parties disputed the legal principles governing Alaska's
ownership of submerged lands near certain barrier islands along the
Arctic Coast. Second, the parties contested the proper legal
characterization of particular coastal features, including a gravel
and ice formation in the Flaxman Island chain known as Dinkum
Sands. Third, the parties disputed whether, when Alaska became a
State, the United States retained ownership of certain submerged
lands located within two federal reservations, the National
Petroleum Reserve-Alaska in the northwest and the Arctic National
Wildlife Refuge in the northeast. For each reservation, the Master
considered both whether the seaward boundary encompassed certain
disputed waters and whether particular executive and congressional
actions prevented the lands beneath tidally influenced waters from
passing to Alaska at statehood.
Alaska excepts to three of the Master's recommendations.
First, it claims that the Master erred in concluding that waters
between the Alaskan mainland and certain barrier islands were not
"inland waters," the limits of which would
7
form a portion of the State's coastline for purposes of
measuring the State's 3-mile Submerged Lands Act grant. Alaska
argues that, at the time of its statehood, the United States had a
clear policy of enclosing waters behind nearfringing islands as
"inland waters." In abandoning that policy in 1971, Alaska argues,
the Federal Government impermissibly "contracted" Alaska's
recognized territory. Second, the State challenges the Master's
conclusion that Dinkum Sands is not an "island." Under the Master's
approach, the low-water line on Dinkum Sands is not part of
Alaska's coastline, and the State cannot claim ownership of
submerged lands, covering an area of 28 square miles, surrounding
the feature. Alaska argues that the Master erred in construing the
relevant definition of an "island" and in applying that definition
to Dinkum Sands. Third, the State claims that the Master erred in
determining that the United States retained ownership of certain
submerged lands within the boundaries of the National Petroleum
Reserve at Alaska's statehood. Alaska argues both that the
Executive lacked authority to prevent submerged lands from passing
to Alaska, and that any attempt to include submerged lands within
the Reserve was not sufficiently clear to defeat Alaska's title
under the equal footing doctrine or under the Submerged Lands
Act.
The United States excepts to the Master's recommendation
concerning the Arctic National Wildlife Refuge. The Master
concluded, among other things, that an administrative application
for the Refuge was insufficient to "set apart" submerged lands
within the proposed boundaries. As a result, the Master concluded,
submerged lands within the Refuge passed to Alaska at
statehood.
We consider these exceptions in turn.
II
By applying the Submerged Lands Act to Alaska through the Alaska
Statehood Act, see Pub. L. 85-508, § 6(m), 72 Stat.
8
343 (1958), Congress granted the State title to submerged lands
beneath a 3-mile belt of the territorial sea, measured from the
State's "coast line." 43 U. S. C. §§ 1301(a)(2), 1311(a). The Act
defines the term "coast line" as "the line of ordinary low water
along that portion of the coast which is in direct contact with the
open sea and the line marking the seaward limit of inland waters."
§ 1301(c). Alaska's first exception requires us to consider how the
presence of barrier islands along its northern shore affects the
delimitation of its coastline. The issue is of primary relevance in
the Beaufort Sea, between the National Petroleum ReserveAlaska and
the Arctic National Wildlife Refuge. A joint federal-state sale of
mineral leases covering this so-called Leased Area, conducted in
December 1979, yielded large sums now held in escrow awaiting the
outcome of this suit.
In cases in which the Submerged Lands Act does not expressly
address questions that might arise in locating a coastline, we have
relied on the definitions and principles of the Convention on the
Territorial Sea and the Contiguous Zone, Apr. 29, 1958, [1964] 15
U. S. T. 1606 (Convention). See
United States v.
California, 381 U. S. 139, 165 (1965)
(California II). Specifically, the coastline from which a
State measures its Submerged Lands Act grant corresponds to the
"baseline" from which the United States measures its territorial
sea under the Convention. The Government argued before the Special
Master that the United States measures its territorial sea from a
"normal baseline" -the lowwater line along the coast, Art. 3,
supplemented by closing lines drawn across bays and mouths of
rivers, see Arts. 7, 13. Under Article 10(2) of the Convention,
each island has its own belt of territorial sea, measured outward
from a baseline corresponding to the low-water line along the
island's coast.
Although the United States now claims a territorial sea belt of
12 nautical miles, see Presidential Proclamation No. 5928, 3 CFR
547 (1988 Comp.), note following 43 U. S. C.
9
§ 1331, we are concerned in this case only with the 3-mile belt
of the territorial sea that determines a State's Submerged Lands
Act grant. Under Article 6 of the Convention, the outer limit of
that territorial sea belt is a line every point of which is three
miles from the nearest point of the baseline. This means of
measuring the outer limit of the belt is also known as the
"arcs-of-circles" method.
Alaska objected to application of the Article 3 "normal
baseline" approach to its Arctic Coast. In the Leased Area of the
Beaufort Sea, some offshore islands are more than six miles apart
or more than six miles from the mainland. If Alaska owns only those
offshore submerged lands beneath each 3-mile belt of territorial
sea, the United States will own "enclaves" of submerged lands,
wholly or partly surrounded by state-owned submerged lands, beneath
waters more than three miles from the mainland but not within three
miles of an island. Two such federal enclaves exist in the Leased
Area between the mainland and the Flaxman Island chain, beneath the
waters of Stefansson Sound. To eliminate these enclaves, Alaska
offered alternative theories for determining the seaward limit of
its submerged lands in the vicinity of barrier islands. Alaska
principally contended that the United States should be required to
draw "straight baselines" connecting the barrier islands and to
measure the territorial sea from those baselines. Article 4 of the
Convention permits a nation to use straight baselines to measure
its territorial sea "[i]n localities where the coast line is deeply
indented and cut into, or if there is a fringe of islands along the
coast in its immediate vicinity." The parties agree that Alaska's
coastline satisfies this description. Under this approach, waters
landward of the baseline would be treated as "inland" waters, and
Alaska would own all submerged lands beneath those waters.
The Master rejected this approach, finding that the use of
straight baselines under Article 4 is permissive, not mandatory,
and that the decision whether to use straight baselines
10
is normally one for the Federal Government. Report of the
Special Master 45 (hereinafter Report). The United States has never
opted to draw straight baselines under Article 4. See
California
II, supra, at 167-169;
United States v.
Louisiana, 394
U. S. 11, 72-73 (1969)
(Louisiana Boundary Case); United
States v.
Louisiana, 470 U. S. 93, 99 (1985)
(Alabama and Mississippi Boundary Case); United States v.
Maine, 475 U.
S. 89, 94, n. 9 (1986)
(Massachusetts Boundary Case). As
a variant of its straight baselines argument, Alaska claimed that
the United States has historically treated waters between the
mainland and fringing islands as "inland waters," so long as the
openings between the offlying islands are no more than 10 miles
wide. Alaska did not argue that the United States had ever
specifically asserted, in its dealings with foreign nations, that
the waters of Stefansson Sound are inland waters. Rather, Alaska
attempted to identify a general but consistent "10-mile rule"
invoked by the United States in its domestic and international
affairs. If applied to Alaska's Arctic Coast, the State argued,
this rule would require treating the waters of Stefansson Sound as
inland waters.
The Master examined the boundary delimitation practices of the
United States and concluded that the United States did not have a
well-established rule for treating waters between the mainland and
fringing islands as inland waters. The Master recognized that, in
the
Alabama and Mississippi Boundary Case, we suggested that
between 1903 and 1961 the United States had "enclos[ed] as inland
waters those areas between the mainland and off-lying islands that
were so closely grouped that no entrance exceeded 10 geographical
miles." 470 U. S., at 106-107. Observing that this statement was
not "strictly necessary" to the decision in the
Alabama and
Mississippi Boundary Case, the Master declined to rely on it
here. The Master therefore concluded that, for purposes of
measuring Alaska's submerged lands, the State's
11
coastline should correspond to a normal baseline under Article 3
of the Convention.
For the reasons discussed below, we find no error in the
Master's approach.
A
Under the Convention, a nation's past boundary delimitation
practice is relevant in a narrow context: specifically, when a
nation claims that certain waters are "historic" inland waters
under Article 7(6) of the Convention. If certain geographic
criteria are met, Article 7(4) of the Convention permits a nation
to draw a "closing line" across the mouth of a bay and to measure
its territorial sea outward from that line. Waters enclosed by the
line are considered internal waters. Article 7(6) also permits a
nation to enclose "historic" bays, even if those waters do not
satisfy the geographic criteria of Article 7(4). For a body of
water to qualify as a historic bay, the coastal nation "must have
effectively exercised sovereignty over the area continuously during
a time sufficient to create a usage and have done so under the
general toleration" of the community of nations.
Id., at 102
(citing Juridical Regime of Historic Waters, Including Historic
Bays 56, U. N. Doc.
A/CNA/143 (1962)) (internal quotation
marks omitted). Accordingly, where a State within the United States
wishes to claim submerged lands based on an area's status as
historic inland waters, the State must demonstrate that the United
States: (1) exercises authority over the area; (2) has done so
continuously; and (3) has done so with the acquiescence of foreign
nations. See
Alabama and Mississippi Boundary Case, supra,
at 101-102.
Recognizing these strict evidentiary requirements, Alaska does
not contend that the waters of Stefansson Sound are historic inland
waters. Alaska does not purport to show any
specific
assertion by the United States that the waters of Stefansson Sound
are inland waters. Rather, Alaska argues that, at the time it was
admitted to the Union, the United States had a general, publicly
stated policy of enclosing as
12
inland waters areas between the mainland and closely grouped
fringing islands. If this general formula is applied to the
Alaska's Arctic Coast, the State argues, the waters of Stefansson
Sound qualify as inland waters. Alaska maintains that this policy
was in effect from the early 1900's to 1971, when the United States
published a set of charts strictly applying the arcs-of-circles
method to Stefansson Sound. In Alaska's view, relying solely on the
Convention's normal baseline approach to delimit the State's
submerged lands impermissibly contracts the State's recognized
territory from that which existed at the time of statehood.
Since adopting the Convention's definitions to give content to
the Submerged Lands Act, we have never sustained a State's claim to
submerged lands based solely on an assertion that the United States
had adhered to a certain general boundary delimitation practice at
the time of statehood. In the
Louisiana Boundary Case, we
left open the possibility that Louisiana could claim ownership of
certain submerged lands by demonstrating a "firm and continuing
international policy" of enclosing waters between the mainland and
island fringes as "inland waters." 394 U. S., at 74, n. 97. Had
that been the United States' "consistent official international
stance," the Government "arguably could not abandon that stance
solely to gain advantage in a lawsuit to the detriment of
Louisiana."
Ibid. In that litigation, the State ultimately
failed to demonstrate any firm and continuing international policy
of enclosing waters behind island fringes as inland waters. See
United States v.
Louisiana, 420 U. S. 529, 529530
(1975)
(per curiam) (decree) (accepting Master's
recommendation that certain actions by the United States did not
establish a general policy of applying straight baselines to
near-fringing islands); Report of Special Master in
United
States v.
Louisiana, O. T. 1974, No.9 Orig., pp. 7-13.
Alaska nevertheless claims that in the
Alabama and Mississippi
Boundary Case the Court identified a "firm and continuing"
10-mile rule for fringing islands. Alaska first contends that
13
the
Alabama and Mississippi Boundary Case precludes the
Government from claiming that the waters of Stefansson Sound are
not inland waters. The State then argues in the alternative that
independent evidence supports its formulation of the rule. We
address Alaska's points in turn.
B
In the
Alabama and Mississippi Boundary Case, the Court
considered the States' claim that the waters of Mississippi Sound
constituted "historic" inland waters under Article 7(6) of the
Convention. In discussing whether the States had shown that the
United States had continuously asserted the inland water status of
Mississippi Sound, the Court identified a general policy "of
enclosing as inland waters those areas between the mainland and
off-lying islands that were so closely grouped that no entrance
exceeded 10 geographical miles." 470 U. S., at 106.
Alaska argues that the Government is estopped from questioning
application of this general coastline delimitation practice to its
Arctic Coast. Alaska recognizes the rule that the doctrine of
nonmutual collateral estoppel is generally unavailable in
litigation against the United States, see
United States v.
Mendoza, 464
U. S. 154, 160-163 (1984), but suggests that the policy
considerations underlying this rule do not apply to cases arising
under the Court's original jurisdiction, where the Court acts as
factfinder and the United States has an incentive to fully litigate
all essential issues.
We have not had occasion to consider application of nonmutual
collateral estoppel in an original jurisdiction case, and we see no
reason to develop an exception to
Mendoza here. Even if the
doctrine applied against the Government in an original jurisdiction
case, it could only preclude relitigation of issues of fact or law
necessary to a court's judgment.
Montana v.
United
States, 440 U. S.
147, 153 (1979);
Mendoza, supra, at 158. A careful
reading of the
Alabama and Mississippi Boundary Case makes
clear that the Court did
14
not attach controlling legal significance to any general
delimitation formula.
The Master in that case recited a series of statements and
precedents following Mississippi's admission to the Union
supporting the view that the Federal Government had treated the
waters of Mississippi Sound as inland waters. These statements
included multiple references to a rule for closing gulfs, bays, and
estuaries with mouths less than 10 miles wide as inland waters,
Report of Special Master in Al
abama and Mississippi Boundary
Case, O. T. 1983, No.9 Orig., pp. 40, 42, 48-49, 52, and to a
rule for closing straits leading to inland waters, id., at 42,
49-50. In addition, the Master cited a 1961 letter from the
Solicitor General to the Director of the United States Coast and
Geodetic Survey concerning coastline delimitation principles for
the Gulf of Mexico, proposing to treat" '[w]aters enclosed between
the mainland and offiying islands ... so closely grouped that no
entrance exceeds ten miles'" as inland waters.
Id., at
52.
In excepting to the Master's conclusion that the waters of
Mississippi Sound qualified as historic inland waters, the United
States argued that the "generalized ... formulations" recited by
the Master could not support the States' claim, without evidence of
specific federal claims to inland waters status for
Mississippi Sound. Exceptions of United States in
Alabama and
Mississippi Boundary Case, O. T. 1983, No. 9 Orig., pp. 32-33.
The Court assumed that the United States' position was correct, but
concluded that the States had in fact identified "specific
assertions of the status of [Mississippi] Sound as inland waters."
470 U. S., at 107; see id., at 108-110.
In light of the Court's assumption that specific assertions of
dominion would be critical to the States' historic title claim, we
cannot conclude that any general delimitation policy identified in
the
Alabama and Mississippi Boundary Case is controlling
here. The Court's inquiry in the
Alabama and Mississippi
Boundary Case was not whether the
15
States had demonstrated a "firm and continuing international
policy" of enclosing waters between the mainland and island fringes
as inland waters, sufficiently well defined to cover the waters of
Mississippi Sound. Rather, the inquiry was whether the States had
demonstrated that the Sound met the specific requirements for a
historic inland waters claim under Article 7(6) of the Convention.
In the context of that claim, the variation or imprecision in the
United States' general boundary delimitation principles might have
been irrelevant because the State could point to specific federal
assertions that Mississippi Sound consisted of inland waters. But
variation and imprecision in general boundary delimitation
principles become relevant where, as here, a State relies solely on
such principles for its claim that certain waters were inland
waters at statehood. The United States is therefore free to argue
that any 10-mile rule is not sufficiently well defined to support
Alaska's claim that the waters of Stefansson Sound constitute
inland waters.
C
Alaska argues that even if principles of collateral estoppel do
not apply, the evidence before the Master established that the
United States had a well-defined, "firm and continuing" 10-mile
rule that would require treating certain areas along Alaska's
Arctic Coast as inland waters. The Master exhaustively cataloged
documents and statements reflecting the United States' views and
practices on boundary delimitation, both in its international
relations and in disputes with various States, between 1903 and
1971. The Master found that "the exact nature of the United States'
historic practice is a matter of some intricacy," and concluded
that any 10-mile rule was not sufficiently well defined to require
treating the waters of Stefansson Sound as inland waters. Report
55. Alaska argues that the Master afforded "undue significance to
minor variations in the way the United States expressed its
otherwise consistent policy over time, ignoring the prin-
16
ciple that minor uncertainties and even contradictions in a
nation's practice are legally insignificant." Exceptions of State
of Alaska 14 (Alaska Exceptions Brief). The relevant sources do not
bear out Alaska's claim.
Of particular importance for our analysis is the position of the
United States in its foreign relations between 1930 and 1949. In
March 1930, the United States formally proposed certain principles
for delimiting inland waters to the League of Nations Conference
for the Codification of International Law. See 3 Acts of the
Conference for the Codification of International Law, Territorial
Waters 195-201 (1930) (Acts of the Conference). As the Geographer
of the Department of State later observed, where the mainland and
offshore islands are assigned individual 3-mile belts of
territorial sea, there will remain "small pockets of the high sea
deeply indenting territorial waters." U. S. Exh. 85-223 (Boggs,
Delimitation of the Territorial Sea, 24 Am. J. Int'l L. 541, 552
(1930)). Because such pockets would "constitute no useful portion
of the high sea from the viewpoint of navigation," ibid., the
United States proposed that countries "assimilate" these small
enclaves of high seas to the adjacent territorial sea where a
single straight line of no more than four nautical miles in length
would enclose an enclave, 3 Acts of the Conference 201. At the same
Conference, the United States also proposed a rule for straits.
Where a strait connected "two seas having the character of high
seas," the waters of the strait would be considered territorial
waters of the coastal nation, as long as both entrances of the
strait were less than six nautical miles wide.
Id., at 200.
Where a strait was "merely a channel of communication with an
inland sea," rules regarding closing of bays would apply.
Id., at 201. Under those rules, waters shoreward of closing
lines less than 10 nautical miles in length would be treated as
"inland" waters.
Id., at 198.
The United States' 1930 "assimilation" proposal is inconsistent
with Alaska's assertion that, since the early 1900's,
17
the United States had followed a firm and continuing 10-mile
rule for fringing islands. If the United States' policy had been to
draw a baseline connecting islands no more than 10 miles apart, all
waters between that line and the mainland would have been treated
as "inland waters." Under the 1930 formula, however, there were
"small pockets of the high sea" between that line and the mainland,
and those pockets would have been assimilated to territorial waters
(that is, waters seaward of the coastline), not to inland waters
(that is, waters enclosed by the coastline). Alaska now argues that
the 1930 assimilation proposal "was at most one of the legally
insignificant uncertainties or contradictions" rather than a change
from a firm 10-mile rule. Alaska Exceptions Brief 25 (internal
quotation marks omitted). Alaska took a different position before
the Special Master, where it argued that the United States
"unequivocally embraced the 'assimilation' practice as the official
United States position" between 1930 and 1949. Brief for Alaska on
Island Fringes 54, 60-61; see Alaska Exh. 85-63 (Memorandum of
United States in Response to Request of Special Master in
United
States v.
California, o. T. 1949, No. 11 Orig., p. 19);
Alaska Exh. 85-82 (Aide-Memoire from the Department of State to the
Government of Norway, Sept. 29,1949, pp. 4-5). Alaska cannot
explain why the United States would have pointed to the
assimilation formula as its official position between 1930 and 1949
if a 10-mile rule for islands was in effect during that time.
Nor does the United States' proposal on straits demonstrate a
policy of connecting near-fringing islands with straight baselines
of less than 10 miles. If the mainland and offshore islands form
the two coasts of a strait, under the United States' proposal the
strait would be treated as territorial waters (not inland waters)
if it linked two areas of high seas. The distance between the
fringing islands may have some bearing on whether those islands in
fact form the coast of a strait, but not on whether the waters they
enclose are
18
territorial or inland waters. In other words, under the 1930
proposal, the character of the waters to which a strait leads, not
the distance between the islands forming one coast of the strait,
determines the character of the strait itself.
Rather than treating the mainland and a line connecting fringing
islands as the two coasts of a strait, Alaska appears to view a
passageway between two offshore islands, leading to the waters
between the islands and the mainland, as a strait. With this
geographic configuration in mind, Alaska argues that the proposal
to apply a 10-mile bay-closing rule to a strait serving as a
"channel of communication with an inland sea" is "fully consistent"
with a 10-mile rule. Alaska Exceptions Brief 25. But even under
this approach, a rule that straits leading to an inland sea are
themselves inland waters is not equivalent to a simple 10-mile
rule. Again, under the United States' 1930 proposal, the character
of the strait depends on the character of the waters to which it
leads. A 10-mile bay-closing rule would apply only if the waters
between the strait and the mainland were inland waters under some
other principle. Under the simple 10-mile rule that Alaska
advocates, the fact that the islands are less than 10 miles apart
itself determines that the waters behind the islands are inland
waters.
In sum, although Alaska is correct that the United States'
position at the League of Nations Conference did not call for
strict application of the arcs-of-circles method, ibid., neither
the assimilation proposal nor the proposal for straits is fully
consistent with a simple rule that islands less than 10 miles apart
enclose inland waters.
The discussion above leads to the conclusion that, if the United
States had a 10-mile rule at Alaska's statehood, that rule
developed after 1949. Even if a rule developed within a decade of
Alaska's statehood could be considered a "firm and continuing" one,
Alaska has not shown that any such rule would encompass the islands
off its Arctic Coast. For the period between 1950 and Alaska's
statehood, Alaska fo-
19
cuses principally on the United States' position in a series of
disputes with States over ownership of submerged lands in the
vicinity of near-fringing islands, rather than on positions taken
in its international relations. First, in 1950, the State
Department and the Justice Department proposed a boundary between
Louisiana's inland and territorial waters for use in the
Louisiana Boundary Case. That boundary, known as the Chapman
Line, followed certain barrier islands along Louisiana's southeast
coast, enclosing Chandeleur and Breton Sounds and Calliou Bay as
inland waters. According to Alaska, the Chapman Line shows the use
of a simple 10mile rule. Second, in 1951, the Justice Department
asked the State Department to outline the United States' approach
to demarcating inland and territorial waters, for purposes of
submerged lands litigation between the United States and
California. A letter from the Acting Secretary of State stated that
an island "was to be surrounded by its own belt of territorial
waters measured in the same manner as in the case of the mainland."
Alaska Exh. 85-94 (Letter from James E. Webb to J. Howard McGrath,
Attorney General, Nov. 13, 1951, p. 3). The letter also drew upon
the 1930 Hague proposals for straits, noting that the waters of a
strait connecting high seas were never inland waters, but that
bay-closing rules should apply to a strait serving as "a channel of
communication to an inland sea."
Id., at 4. Third, in a
submission to the Court in 1958, the United States commented that
waters behind certain islands in Louisiana, Mississippi, and
Alabama were inland waters. Brief for United States in Support of
Motion for Judgment on Amended Complaint in
United States v.
Louisiana, O. T. 1958, No.9 Orig., pp. 177, 254, 261.
We agree with the Special Master that the United States did not
exclusively employ a simple 10-mile rule in its disputes with the
Gulf States and with California. The 1951 State Department letter
in the
California litigation merely echoed the United
States' proposal at the Hague Conference
20
concerning straits leading to inland waters. As discussed
supra, at 18-19, a rule applying 10-mile bay-closing
principles to straits leading to inland waters would not always
lead to the same result as a simple 10-mile rule. Under the former
approach, the critical factor is where the strait leads, not the
width of the strait. Alaska does not attempt to show that
Stefansson Sound is a strait leading to inland waters.
Nor does the 1950 Chapman Line reflect a "firm and continuing"
policy of enclosing waters behind fringing islands as "inland
waters." The Chapman Line may be consistent with such a policy, but
as the Master noted, no contemporaneous document explains the
theory behind the Chapman Line in terms of a simple 10-mile rule.
Report 85-88. Indeed, a 1950 draft memorandum from the State
Department Geographer to the Justice Department opined that
Chandeleur and Breton Sounds should be treated as inland waters not
only because they were screened by a chain of islands that were
less than 10 miles apart, but also because they were "not
extensively traversed by foreign vessels" and because the islands
covered "more than half the total arc of the territorial sea." U.
S. Exh. 85-400. These criteria go far beyond the simple 10-mile
rule, and Alaska does not show how they would apply to Stefansson
Sound. Finally, statements in the briefs filed by the United States
in litigation with the Gulf States that certain waters behind
offshore islands were inland waters do not explicitly rely on a
10-mile rule. Moreover, in our decision in
United States v.
Louisiana, 363
U. S. 1, 67, n. 108 (1960), we made clear that we did not take
the Government's concession that certain islands off Louisiana's
shore enclosed inland waters "to settle the location of the
coastline of Louisiana or that of any other State."
These and other documents considered by the Master support his
conclusion that Alaska has not identified a firm and continuing
10-mile rule that would clearly require treating the waters of
Stefansson Sound as inland waters at the time
21
of Alaska's statehood. Indeed, we note that the result Alaska
seeks would be in tension with the outcome of the
Massachusetts
Boundary Case, 475
U. S. 89 (1986), where, a year after deciding the
Alabama
and Mississippi Boundary Case, we concluded that the waters of
Nantucket Sound are not inland waters. Following the Court's
decision in the
Alabama and Mississippi Boundary Case,
Massachusetts argued that a 10-mile rule would make the waters of
Nantucket Sound inland waters. The Master in that case recognized
that no entrance between the islands enclosing N antucket Sound
exceeded 10 miles, but nevertheless concluded that Massachusetts
had not shown that the waters of N antucket Sound were inland
waters. Report of Special Master in
Massachusetts Boundary
Case, O. T. 1984, No. 35 Orig., pp. 69.2-70. We rejected the
Commonwealth's claim to inland waters status for Nantucket Sound,
framed in its exception to the Master's recommendation as an
"ancient title" claim.
Massachusetts Boundary Case, supra,
at 105. If the case could have been resolved by reference to a
simple 10-mile rule for all fringing islands, we need not have
entertained such a claim.
D
In sum, we conclude that Alaska's entitlement to submerged lands
along its Arctic Coast must be determined by applying the
Convention's normal baseline principles. The
Alabama and
Mississippi Boundary Case does not foreclose this conclusion.
The sources before the Master showed that, in its foreign
relations, particularly in the period 1930 to 1949, the United
States had advocated a rule under which objectionable pockets of
high seas would be assimilated to a coastal nation's territorial
sea. Such a rule would have been inconsistent with the maintenance
of a 10-mile rule for fringing islands. The United States also
advocated a rule for treating the waters of a strait leading to an
inland sea as inland waters, but that rule is not equivalent to
Alaska's simple 10-mile rule. Whether the waters of Stefansson
Sound
22
would be considered inland waters under the 1930 proposal for
straits is unclear.
Accordingly, we overrule Alaska's first exception.
III
Alaska next excepts to the Master's conclusion that a small
gravel and ice formation in the Flaxman Island chain, known as
Dinkum Sands, is not an island. Whether Dinkum Sands is an island
affects Alaska's ownership of offshore submerged lands in the
feature's vicinity.
As discussed above, a State's coastline provides the starting
point for measuring its 3-mile Submerged Lands Act grant. See 43 U.
S. C. §§ 1301(a)(2), 1311(a). Generally, the State's coastline
corresponds to a "baseline" from which, under the 1958 Convention,
the United States measures its territorial sea for international
purposes.
Supra, at 8. Article 10(1) of the Convention
defines an island as "a naturally-formed area of land, surrounded
by water, which is above water at high-tide." A line of ordinary
low water along the coast of an island can serve as a baseline for
measuring the territorial sea. See Arts. 10(2), 3. The Convention
also permits a nation to claim a belt of territorial sea around
certain features that are not above water at high tide, so long as
they are located wholly or partly within the territorial sea belt
of the mainland or an island. Arts. 11(1)-(2). Again, for purposes
of determining a State's ownership rights under the Submerged Lands
Act, we are concerned with a 3-mile belt of the territorial sea.
See
supra, at 8-9. Because Dinkum Sands is not within three
miles of the nearest islands or the mainland, it does not meet the
requirements of Article 11. Accordingly, Dinkum Sands has its own
belt of territorial sea-and Alaska owns submerged lands beneath
that belt-only if Dinkum Sands satisfies the requirements of
Article 10(1).
The issue here has been narrowed to whether Dinkum Sands is
"above water at high-tide." Dinkum Sands has fre-
23
quently been submerged. Apart from daily shifts in the tide and
seasonal shifts in sea level, the feature itself changes height.
Report 275, 280-283, 309, n. 66. This phenomenon may be at least in
part attributable to what the United States' expert witness termed
"ice collapse." Dinkum Sands is formed by layers of ice and gravel
mixed with ice. As the summer months approach, ice within Dinkum
Sands melts and the feature slumps in elevation. 7 Tr. 986-987, 8
Tr. 1060-1062 (July 23, 1984).
Alaska and the United States agree that "high-tide" under
Article 10(1) should be defined as "mean high water," an average
measure of high water over a 19-year period. Cf.
United
States v.
California, 382 U. S. 448, 449-450
(1966)
(per curiam) (entering decree defining an island as
"above the level of mean high water" and defining mean high water
as "the average elevation of all the high tides occurring over a
period of 18.6 years");
Borax Consol., Ltd. v.
Los
Angeles, 296 U. S.
10, 26-27 (1935) (approving definition of "mean high tide line"
based on "average height of all the high waters ... over a
considerable period of time," at least 18.6 years). They disagree
over how frequently a feature of variable elevation such as Dinkum
Sands must be above mean high water to qualify as an island. Based
on the drafting history of Article 10, the Master concluded that an
island must "generally," "normally," or "usually" be above mean
high water. Report 302. Applying this standard, the Master reviewed
historical hydrographic and cartographic evidence and the results
of a joint monitoring project conducted by the parties in 1981 and
1982. He concluded that Dinkum Sands is frequently below mean high
water and therefore is not an island.
Id., at 310.
Alaska excepts to this conclusion on three grounds. First,
Alaska challenges the legal conclusion that Article 10(1) requires
an island to be above mean high water at least "generally,"
"normally," or "usually." Second, Alaska disputes the Master's
factual finding that Dinkum Sands is fre-
24
quently below mean high water. Finally, Alaska argues that
Dinkum Sands should be treated as an island when it is in fact
above mean high water. We find no error in the Master's
conclusion.
A
In the proceedings before the Master, the United States took the
position that an island must be "permanently" above mean high
water, Brief for United States on Dinkum Sands 17-29, while Alaska
argued that Article 10 permits a feature "to slump on occasion
below" mean high water but still qualify as an island, Brief for
Alaska on Dinkum Sands 64. The Master essentially rejected the
United States' position in favor of a somewhat more lenient
standard, under which an island must "generally," "normally," or
"usually" be above mean high water. Although Alaska now objects to
this standard, Alaska Exceptions Brief 44-45, 51, it sets forth no
clear alternative. Alaska's observation that "an island that is
occasionally submerged is no less an island," id., at 45, is not
inconsistent with the Master's approach.
If Alaska is now implicitly claiming that a feature need appear
only episodically above mean high water to qualify as an island,
its position is without merit. Because Article 10(1) does not
specify how frequently a feature must be above mean high water to
qualify as an island, we must look to the Convention's drafting
history for guidance. See
Louisiana Boundary Case, 394 U.
S., at 42-47. In urging that the Master's interpretation of Article
10(1) is inconsistent with the development of that provision,
Alaska focuses on the fact that earlier drafts specified that an
island must be "permanently above high-water mark." Report 297
(citing J. Franvois, Report on the Regime of the Territorial Sea,
[1952] 2 Y. B. Int'l L. Comm'n 25, 36, U. N. Doc.
A/CNA/53
(in French; translation from Alaska Exh. 84A-21, p. 41)); see
Alaska Exceptions Brief 50. The eventual deletion of the modifier
"permanently," in Alaska's view, suggests that Arti-
25
cle 10(1) contains no implicit modifier at all, such as
"generally," "normally," or "usually."
Alaska's reading of Article 10(1)'s drafting history is
selective. In fact, the drafting history supports a standard at
least as stringent as that adopted by the Master. The provision was
first introduced at the League of Nations Conference for the
Codification of International Law, held at The Hague in 1930. A
preparatory committee offered the following as a basis for
discussion: "In order that an island may have its own territorial
waters, it is necessary that it should be permanently above the
level of high tide." 2 Conference for the Codification of
International Law, Bases of Discussion, Territorial Waters 54
(1929). A subcommittee revised the definition but retained the
element of permanence: "An island is an area of land, surrounded by
water, which is permanently above high-water mark." 3 Acts of the
Conference 219. When the International Law Commission of the United
Nations revived the work of the Conference in 1951, a special
rapporteur reintroduced the subcommittee's definition. Report
297.
In 1954, the British delegate proposed adding the modifier "in
normal circumstances," so that an island's status would not be
questioned because it was temporarily submerged at high tide in an
"exceptional cas[e]." See Summary Records of the 260th Meeting,
[1954] 1 Y. B. Int'l L. Comm'n 92. The Commission adopted that
proposal, id., at 94, and in its final report defined an island as
"an area of land, surrounded by water, which in normal
circumstances is permanently above high-water mark," Report of the
International Law Commission to the General Assembly, Art. 10, U.
N. Gen. Ass. Off. Rec., 11th Sess., Supp. No.9, U. N. Doc. A/3159,
p. 16 (1956).
In 1957, an internal State Department memorandum evaluating the
Commission's work suggested that the words "permanently" and "in
normal circumstances" appeared to be inconsistent and could both be
omitted, because "current
26
international law does not purport to solve such minor problems"
as how to treat formations that would be submerged at unusually
high states of high tide. Alaska Exh. 84A-21 (Memorandum from
Benjamin H. Read, Islands, Drying Rocks and Drying Shoals, Sept.
1957, p. 11). The United States presented that position at the 1958
United Nations Conference on the Law of the Sea, arguing that
"there is no established state practice regarding the effect of
subnormal or abnormal or seasonal tidal action on the status of
islands." 3 United Nations Conference on the Law of the Sea,
Official Records: First Committee (Territorial Sea and Contiguous
Zone), Summary Records of Meetings and Annexes, U. N. Doc.
A/CONF.13/Cl./L.112, p. 242 (1958). The Conference adopted the
United States' recommendation, and excised the words "permanently"
and "in normal circumstances" from the definition of an island.
As the Master recognized, in including the phrase "in normal
circumstances," the Convention's drafters had sought to accommodate
abnormal events that would cause temporary inundation of a feature
otherwise qualifying as an island. Report 300. The United States'
view that the international definition of an island need not
address abnormal or seasonal tidal activity ultimately prevailed.
But the change from the Commission's draft to the final language of
the Convention did not signal an intent to cover features that are
only sometimes or occasionally above high tide. In fact, the
problem of abnormal or seasonal tidal activity that the 1954
amendment addressed is fully solved by the United States' practice
of construing "high tide" to mean "mean high water." Averaging high
waters over a 19-year period accounts for periodic variations
attributable to astronomic forces; nonperiodic, meteorological
variations can be assumed to balance out over this length of time.
See 2 A. Shalowitz, Shore and Sea Boundaries 58-59 (1964).
Accordingly, even if a feature would be submerged at the highest
monthly tides during a particular season or in unusual weather, the
feature might
27
still be above "mean high water" and therefore qualify as an
island.
What Alaska seeks is insular status not for a feature that is
submerged at abnormally high states of tide, but for a feature that
rises above and falls below
mean high watera tidal datum
that has already accounted for the tidal abnormalities about which
the drafters of Article 10(1) were concerned. Even if Article
10(1)'s drafting history could support insular status for a feature
that slumps below mean high water because of an
abnormal
change in elevation, it does not support insular status for a
feature that exhibits a pattern of slumping below mean high water
because of
seasonal changes in elevation. Alaska
nevertheless contends that there is support for according island
status to features more "ephemera[l]" than Dinkum Sands. See Alaska
Exceptions Brief 45-50. The authorities Alaska cites all predate
the Convention and are therefore unhelpful in construing Article
10(1). Alaska also relies on an analogy to the "mudlumps" of the
Mississippi delta, features whose status under the Convention has
never been determined. See Report of Special Master in
United
States v.
Louisiana, O. T. 1974, No.9 Orig., p. 4 (filed
July 31, 1974) (concluding that Louisiana's Submerged Lands Act
grant could be measured from two mudlumps, but not deciding whether
the mudlumps were islands under Article 10(1) or low-tide
elevations under Article
11(1)); United States v.
Louisiana, 420
U. S. 529 (1975) (overruling exceptions).
In sum, the Convention's drafting history suggests that, to
qualify as an island, a feature must be above high water except in
abnormal circumstances. Alaska identifies no basis for according
insular status to a feature that is frequently below mean high
water.
B
In disputing the Master's factual conclusion that Dinkum Sands
is "frequently below mean high water," Report 39, Alaska relies on
three cartographic sources. First, two nau-
28
tical charts produced following a 1949-1950 survey of the
Beaufort Sea by a United States Coast and Geodetic Survey party
depict Dinkum Sands as an island, consistent with a survey note
describing a "new gravel bar baring about three feet" at mean high
water. Alaska Exh. 84A-203 (D. S. Coast and Geodetic Survey,
Descriptive Report to Accompany Hydrographic Survey H-7761, p. 3);
see Alaska Exh. 84A-202 (D. S. Coast and Geodetic Survey, Addendum
to Descriptive Report to Accompany Hydrographic Survey H-7760, p.
4). Second, in 1971, an ad hoc interagency group known as the
Baseline Committee, charged with delimiting the United States'
coastline, produced baseline charts treating Dinkum Sands as an
island. Third, a 1979 map developed for a joint federal-state oil
and gas lease sale in the Prudhoe Bay area assigned ownership of a
3-mile belt of territorial sea around Dinkum Sands to Alaska.
As Alaska appears to acknowledge, see Alaska Exceptions Brief
53, the 1971 baseline chart and the 1979 leasing map were based on
the 1949-1950 survey rather than independent observations. In 1956,
the United States Coast and Geodetic Survey resumed charting Dinkum
Sands as a lowtide elevation, based on observations of a Navy
vessel made the prior year. It is undisputed that one of the
members of the Baseline Committee persuaded the Committee to treat
Dinkum Sands as an island based solely on his personal observation
of Dinkum Sands as a member of the 1949-1950 survey party. See
Alaska Exh. 84A-207 (Department of State, Memorandum to Members of
the Baseline Committee, Minutes of Oct. 10, 1979, Meeting, p. 2)
(noting that the Committee "has used Dinkum Sands as a basepoint
for determining the breadth of the territorial sea ... because
early surveys showed Dinkum Sands to be above high water and
Admiral Nygren had personally observed it above high water"). The
1979 leasing map relied on the 1971 baseline chart in assigning
Dinkum Sands its own 3-mile belt of territorial sea.
29
The question, then, is whether the 1949-1950 survey party's
conclusion that Dinkum Sands is three feet above mean high water,
taken together with visual observations of Dinkum Sands above
water, undermines the Master's factual finding that Dinkum Sands is
"frequently below mean high water." Report 309. It does not.
Alaska emphasizes that Dinkum Sands has been observed "many
times ... above water" and only "occasionally ... submerged."
Alaska Exceptions Brief 44. But visual observations of Dinkum Sands
are not dispositive; the question is not whether Dinkum Sands is
above or below high tide on any given day, but where the feature
lies in relation to
mean high water. To address precisely
this problem, the parties jointly commissioned a $2.5 million study
to calculate mean high water in the feature's vicinity and to
determine the feature's elevation in relation to that datum. First,
using a year of tidal readings, the National Ocean Survey computed
a mean high-water datum at Dinkum Sands and calculated an error
band to account for the fact that the level would ordinarily be
based on 19 years of readings. Second, an engineering firm measured
Dinkum Sands' highest points in March, June, and August 1981.
Comparing the feature's highest elevation measurements to the
mean high-water level, the Master found that Dinkum Sands was not
above mean high water at any time it was surveyed. The two highest
points of the survey were within the error band for the mean
high-water level, but the Master found this fact to be of little
weight because the measurements were likely taken from piles of
gravel disturbed by the March measurements, rather than from Dinkum
Sands' true highest points. Alaska continued to measure Dinkum
Sands in relation to mean high water in 1982 and 1983. The feature
was found to be above mean high water on a visit in July 1982. By
September, the feature had fallen in elevation, possibly by more
than a foot, see Report 281-282, placing it below the mean
high-water datum.
30
Between May and July 1983, the feature was observed above water
several times, although its elevation in relation to mean high
water was not known. Based on two helicopter observations of the
feature and estimates of sea level in relation to mean high water,
the Master concluded that Dinkum Sands could have been above high
water by a matter of inches in September 1983. The Master found
that the feature was "consistently" below mean high water in 1981
and below mean high water by September-the end of the open water
season-in both 1981 and 1982.
Id., at 309. Relying largely
on the 1981-1983 data, the Master concluded that Dinkum Sands is
not an island.
Alaska makes no mention of the 1981 joint monitoring project.
The Master discussed the State's methodological objections to the
results at length, see id., at 255-269, and we see no reason to
revisit the Master's conclusion that those objections are
unpersuasive. Alaska does not explain why the Master should have
relied on a single August 1949 measurement of Dinkum Sands'
elevation in relation to mean high water rather than on the
exhaustive survey expressly designed to determine Dinkum Sands'
status under Article 10(1) of the Convention. In contending that
Dinkum Sands has been above mean high water except on a "handful of
occasions," Alaska recognizes that Dinkum Sands slumps in elevation
during the open water season between late July and September.
Alaska Exceptions Brief 54. Alaska suggests that natural processes
build up Dinkum Sands "just ... prior to the autumn freeze-up," and
that the feature then remains above mean high water for 9 to 10
months of the year. See ibid. There is no basis in the record,
however, for concluding that Dinkum Sands is above mean high water
during the winter months. During the winter, the area is completely
covered by pack ice. The sole measurement of the feature's
elevation during the winter was that taken in March 1981, and it
was then below mean high water. Report 286. But even if the record
demonstrated that the
31
feature remained above mean high water until "ice collapse"
caused it to slump, that would not compel a ruling in Alaska's
favor. Although Article 10(1)'s drafting history may suggest that a
feature submerged at abnormally high tides does not lose its
insular status, it does not support the broader conclusion that a
feature with a
seasonal loss in elevation, bringing it below
mean high water, qualifies as an island. See
supra, at
27.
In sum, we find no error in the Master's conclusion that Dinkum
Sands is frequently below mean high water and therefore does not
meet the standard for an island.
C
Alaska finally urges a compromise resolution, under which Dinkum
Sands would be deemed an island when above mean high water. Alaska
attempts to find support for its position in this Court's
recognition in prior cases of the concept of an "ambulatory coast
line." Alaska Exceptions Brief 55. In adopting the 1958 Convention
to aid interpretation of the Submerged Lands Act, we recognized
that the Convention treats a nation's coastline as its modern,
ambulatory coastline. See
United States v.
Louisiana,
394 U. S. 1, 5
(1969)
(Texas Boundary Case); Louisiana Boundary Case, 394
U. S., at 32-34. Shifts in a low-water line along the shore, we
acknowledged, could lead to a shift in the baseline for measuring a
maritime zone for international purposes. In turn, the State's
entitlement to submerged lands beneath the territorial sea would
change.
An island may very well have its
own ambulatory
coastline. What Alaska seeks here, however, is not an entitlement
to submerged lands seaward of a gradually accreting or eroding
shore. Rather, Alaska's ownership of submerged lands around Dinkum
Sands would appear and disappear periodically, depending upon
whether the feature was above or below mean high water. Not only
does Article 10(1) of the Convention not support such a reading,
but Alaska's position
32
makes a sensible application of other provisions of the
Convention impossible. The Convention separately categorizes
features that are below mean high water, but above water at low
tide. See Art. 11. In addition, under Articles 10(2) and 3, an
island's belt of territorial sea is measured from the line of low
water. As Dinkum Sands' elevation shifts and the feature slumps
toward the mean high-water datum, below the mean high-water datum,
and possibly below the low-water datum, the baseline for measuring
the surrounding maritime zone would shift and then disappear. Quite
apart from the fact that Alaska's proposal would lead to costly and
time-consuming monitoring efforts, we agree with the Master that
Alaska has identified no precedent for treating as an island a
feature that oscillates above and below mean high water.
IV
Alaska's third exception concerns the ownership of submerged
lands within the National Petroleum Reserve-Alaska (Reserve), a
23-million acre federal reservation in the northwestern part of the
State. The Reserve's seaward boundary runs along the Arctic Ocean
from Icy Cape at the west to the mouth of the Colville River at the
east. When this litigation began, Alaska and the United States
disputed the location of the Reserve's boundary, focusing in
particular on whether the boundary followed the sinuosities of the
coast or instead cut across certain inlets, bays, and river
estuaries. Alaska initially conceded federal ownership of submerged
lands within that boundary. In light of this Court's decision in
Montana v.
United States, 450 U. S. 544 (1981), and
with the consent of the United States, the Special Master granted
Alaska relief from its concession, and Alaska claimed ownership of
submerged lands beneath certain coastal features within the
Reserve's boundaries. Order of Special Master in
United
States v.
Alaska, O. T. 1983, No. 84 Orig. (Jan. 4,
1984). A separate proceeding concerning ownership of submerged
lands beneath inland navigable waters is pending in
33
Federal District Court,
Alaska v.
United States,
Nos. A83343, A84-435, A86-191 (D. Alaska), and has been stayed
until resolution of the present case, see Report 347, n. 4.
The parties no longer dispute the location of the Reserve's
boundary. Accordingly, we consider only the Master's recommendation
concerning the ownership of submerged lands beneath certain coastal
features within that boundary. The Master concluded that the United
States retained ownership of the submerged lands in question at
Alaska's statehood. That conclusion rested principally on three
premises: first, that the United States can prevent lands beneath
navigable waters from passing to a State upon admission to the
Union by reserving those lands in federal ownership (as opposed to
conveying them to a third party); second, that Congress had
authorized the President to reserve submerged lands with a 1910
statute known as the Pickett Act; and third, that the 1923
Executive Order creating the Reserve reflected a clear intent to
reserve all submerged lands within the boundaries of the Reserve
and to defeat the State's title to the submerged lands in question.
Alaska excepts to the Master's conclusion on several grounds,
arguing that the Government did not show a sufficiently clear
intent to reserve submerged lands or to defeat state title and that
the 1923 Executive Order was promulgated without proper authority.
We discuss some background principles and then consider these
arguments in turn.
A
The Property Clause, Art. IV, § 3, cl. 2, provides that
"Congress shall have Power to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property
belonging to the United States." In
Shively v.
Bowlby, 152 U.
S. 1, 48 (1894), the Court concluded that this power extended
to granting submerged lands to private parties, and thereby
defeating a future State's equal footing title, "to carry out ...
public purposes appropriate to the objects for which the United
States hold the Territory." We
34
agree with the Special Master that Congress can also reserve
submerged lands under federal control for an appropriate public
purpose, and thus resolve a question left open in
Utah Div. of
State Lands, 482 U. S., at 201, in the United States'
favor.
As drawn by the Master, the boundary of the Reserve encompasses
both those lands that would ordinarily pass to Alaska under the
equal footing doctrine-that is, tidelands and submerged lands
beneath inland navigable waters-and those lands that would pass to
Alaska only by virtue of the Submerged Lands Act-that is, lands
beneath the 3-mile territorial sea. As a result, the parties
dispute the principles governing ownership of the submerged
lands.
Under our equal footing cases, "[a] court deciding a question of
title to the bed of navigable water must ... begin with a strong
presumption" against defeat of a State's title.
Montana,
supra, at 552; see
Utah Div. of State Lands, supra, at
197-198. We will not infer an intent to defeat a future State's
title to inland submerged lands "unless the intention was
definitely declared or otherwise made very plain."
United
States v.
Holt State Bank, 270 U. S. 49, 55 (1926).
The United States argues that the presumption against defeat of
state title does not apply to lands passing solely under the
Submerged Lands Act-that is, lands beneath the territorial sea-over
which the United States has paramount authority: Any grant of such
lands is to be "'construed strictly in favor of the United
States.'" United States Opposition Brief 53 (quoting
California
ex rel. State Lands Comm'n, 457 U. S., at 287). The Master
agreed with the Government's approach, concluding that the United
States can demonstrate that it retained title to submerged lands
beneath the territorial sea under a "less demanding standard" than
our equal footing cases require. Report 394. Nevertheless, the
Master analyzed the withdrawal under the "stricter" standards of
Utah Div. of State Lands and
Montana, reasoning that
the less demanding test for lands be-
35
neath the territorial sea would be relevant only if the United
States failed to satisfy the more stringent test. Report 394.
Neither the Submerged Lands Act itself nor our case law supports
the United States' approach. The Submerged Lands Act grants States
submerged lands beneath a 3-mile belt of the territorial sea. The
statute is a grant of federal property, and the scope of that grant
must be construed strictly in the United States' favor. But that
principle does not permit us to ignore the statute's terms, which
provide that a State receives title to submerged lands beneath the
territorial sea unless the United States
"expressly
retain[sJ" them. 43 U. S. C. § 1313(a) (emphasis added). We cannot
resolve "doubts" about whether the United States has withheld state
title to submerged lands beneath the territorial sea in the United
States' favor, for doing so would require us to find an "express"
retention of submerged lands where none exists. The Submerged Lands
Act does not call into question cases holding that the United
States has paramount sovereign authority over submerged lands
beneath the territorial sea. See
California I, 332 U. S., at
35-36;
United States v.
Louisiana, 339 U. S. 699, 704
(1950);
United States v.
Texas, 339 U. S. 707, 719
(1950). But Congress has chosen to exercise that authority by
presumptively granting those lands to the States, unless the United
States has "expressly retained" submerged lands.
Reinforcing this reading of the Act is the fact that the Act's
terms reach lands governed by the equal footing doctrine as well as
lands beneath the territorial sea. Under the terms of the statute,
equal footing lands, like those beneath the territorial sea, pass
to a State unless the United States "expressly retained" them. In
passing the Act, Congress would have legislated against the
backdrop of our early equal footing cases. See
Montana, 450
U. S., at 552, n. 2. There is no indication that, in formulating
the "expressly retained" standard, Congress intended to upset
settled doctrine and to impose on the Federal Government a more or
less demanding
36
standard than the one reflected in those cases, see,
e.
g.,
Holt State Bank, supra, at 55 (holding that intent to
defeat state title to submerged lands must be "definitely declared
or otherwise made very plain"), and carried forward in
Montana and
Utah Div. of State Lands. Whether title
to submerged lands rests with a State, of course, is ultimately a
matter of federal intent. In construing a single federal instrument
creating a reserve, we see no reason to apply the phrase "expressly
retained" differently depending upon whether the lands in question
would pass to a State by virtue of a statutory grant or by virtue
of the equal footing doctrine, as confirmed by statute.
Applying
Montana and
Utah Div. of State Lands,
then, we must ask whether the United States intended to include
submerged lands within the Reserve and to defeat Alaska's title to
those lands.
B 1
President Harding created the National Petroleum Reserve by
Executive Order in 1923. The order described a boundary following
the Arctic "coast line," measured along "the ocean side of the
sandspits and islands forming the barrier reefs and extending
across small lagoons from point to point, where such barrier reefs
are not over three miles off shore." Exec. Order No. 3797-A, in
Presidential Executive Orders (1980) (microform, reel 6). Because
the boundary follows the ocean side of the islands, the Reserve
necessarily includes tidelands landward of the islands. The Reserve
also contains coastal features, including "small lagoons" (to which
the Order explicitly refers) and the mouths of rivers and bays
(which the Master concluded were within the Reserve's boundary).
Report 381. Alaska argues that the fact that the United States
included certain water areas within the exterior boundaries of the
Reserve does not necessarily mean that the United States clearly
intended to re-
37
serve the submerged lands beneath those waters. Alaska
Exceptions Brief 62. In support of this proposition, Alaska points
primarily to our decisions in
Montana, supra, at 554, and
Utah Div. of State Lands, 482 U. S., at 202.
In
Montana, the United States, as trustee for the Crow
Tribe, sought a declaratory judgment that it owned the riverbed of
the Big Horn River and had conveyed a beneficial interest in the
submerged lands to the Tribe. The river was located inside the
boundaries of the Crow Reservation established by treaty in 1868,
but the treaty did not expressly refer to the riverbed. 450 U. S.,
at 548, 554. Applying the "strong presumption against conveyance by
the United States" to defeat a State's title, id., at 552, we
concluded that the "mere fact that the bed of a navigable water
lies within the boundaries described in the treaty does not make
the riverbed part of the conveyed land, especially when there is no
express reference to the riverbed that might overcome the
presumption against its conveyance," id., at 554. Even though
creation of an Indian reservation could be an "appropriate public
purpose" justifying a conveyance of submerged lands, a conveyance
of submerged lands beneath the river would not have been necessary
for the Government's purpose, because fishing was not important to
the Crow Tribe's way of life.
Id., at 556.
In
Utah Div. of State Lands, the Court found that the
United States had not prevented the bed of Utah Lake from passing
to Utah at statehood. The Sundry Appropriations Act of 1888, 25
Stat. 505, authorized the United States Geological Survey to select
"sites for reservoirs and other hydraulic works necessary for the
storage and utilization of water for irrigation and the prevention
of floods and overflows."
Id., at 526. The Survey selected
Utah Lake as a reservoir site. 482 U. S., at 199. In 1890, when
Congress repealed the 1888 Act, it provided "that reservoir sites
heretofore located or selected shall remain segregated and re-
38
served from entry or settlement as provided by [the 1888 Act]."
Sundry Appropriations Act of 1890, 26 Stat. 391.
In concluding that the 1888 Act did not reflect a clear intent
to include submerged lands within lands reserved for reservoir
sites, the Court focused in part on the fact that the Act was
motivated by concerns that settlers would claim lands suitable for
reservoir sites or other reclamation efforts. 482 U. S., at 198,
203. These concerns of "monopolization and speculation" "had
nothing to do with the beds of navigable rivers and lakes."
Id., at 203. Moreover, the Government's ability to control
and develop navigable waters would not be impaired if the land
beneath the navigable waters passed to the State.
Id., at
202; see also
Arizona v.
California, 373 U. S. 546, 597-598
(1963);
Arizona v.
California, 283 U. S. 423,
451-452, 457 (1931). We also considered whether certain references
to the bed of Utah Lake in reports by the Geological Survey,
coupled with the 1890 Act's requirement that selected sites remain
segregated, accomplished a reservation of the lake bed. We
concluded that the references to the lake bed in the Survey
documents, when placed in proper context, did not indicate that the
bed was included within the reservation.
Utah Div. of State
Lands, supra, at 206. Finally, we held that even if the 1888 or
1890 Acts reflected a clear intent to include submerged lands
within a reservation, there was no evidence that the United States
intended to defeat future States' entitlement to any land reserved.
Again, our analysis focused on the fact that the transfer of title
to the lake bed would not prevent the Government from developing a
reservoir or water reclamation project at the lake.
Id., at
208.
Montana and
Utah Div. of State Lands establish
that the fact that navigable waters are within the boundaries of a
conveyance or reservation does not in itself mean that submerged
lands beneath those waters were conveyed or reserved. But Alaska's
reliance on these cases is misplaced for two reasons. First, the
Executive Order of 1923 does
39
not merely define a boundary that encloses
a body of
navigable water. Rather, in describing a boundary following the
ocean side of offshore islands and reefs, the Order created a
Reserve that necessarily embraced certain
submerged
lands-specifically, tidelands shoreward of the barrier
islands.1 Second,
Montana and
Utah Div. of State
Lands establish that the
purpose of a conveyance or
reservation is a critical factor in determining federal intent. See
also
Alaska Pacific Fisheries v.
United States,
248 U. S. 78,
87-89 (1918) (reservation of "body of lands" in southeastern Alaska
for Metlakahtla Indians included adjacent waters and submerged
lands, because fishing was necessary for Indians' subsistence). The
Executive Order of 1923 sought to retain federal ownership of land
containing oil deposits. The Order recited that "there are large
seepages of petroleum along the Arctic Coast of Alaska and
conditions favorable to the occurrence of valuable petroleum fields
on the Arctic Coast," and described the goal of securing a supply
of oil for the Navy as "at all times a matter of national concern."
Petroleum resources exist in subsurface formations necessarily
extending beneath submerged lands and uplands. The purpose of
reserving in federal ownership all oil and gas deposits within the
Reserve's boundaries would have been undermined if those deposits
underlying lagoons and other tidally influenced waters had been
excluded. It is simply
1 In light of the fact that the Order necessarily encompasses
tidelands, the partial dissent's conclusion that the United States
owns
no submerged lands within the Reserve is puzzling. The
dissent suggests that the United States retains submerged lands
only if the relevant instrument "'in terms embraces the land under
the waters.'''
Post, at 66 (THOMAS, J., concurring in part
and dissenting in part) (quoting
Packer v.
Bird, 137
U. S. 661, 672 (1891)). By its terms, the Executive Order of 1923
certainly embraces all tidelands landward of the barrier islands.
Accordingly, even if the dissent were correct that a federal intent
to retain submerged lands can never be inferred, no inference is
required for the conclusion that, at the very least, the United
States retained the tidelands within the Reserve.
40
not plausible that the United States sought to reserve only the
upland portions of the area.
Alaska also argues that any inclusion of submerged lands within
the Reserve was not supported by an appropriate public purpose.
Specifically, Alaska claims that only a "public exigency" or
"international duty" will support a reservation of submerged lands.
In
Shively, the Court recognized a general congressional
policy of granting away land beneath navigable waters only "in case
of some international duty or public exigency," 152 U. S., at 50.
But that is a congressional policy, not a constitutional
obligation.
Utah Div. of State Lands, 482 U. S., at 197. The
only constitutionallimitation on a conveyance or reservation of
submerged lands is that it serve an appropriate public purpose: The
United States has the power to dispose of submerged lands in
prestatehood territories "'in order to perform international
obligations, or to 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.'"
Id., at 196-197 (emphasis added) (quoting
Shively, supra, at 48). There is no question that, as the
Master concluded, the inclusion of submerged lands within the
Reserve fulfilled an appropriate public purpose-namely, securing an
oil supply for the national defense.
In sum, the 1923 Executive Order creating the Reserve reflects a
clear intent to include submerged lands within the Reserve. The
boundary by its terms embraces certain coastal features, and the
Master interpreted it to embrace others. In light of the purpose of
the Reserve, it is simply not plausible that the Order was intended
to exclude submerged lands, and thereby to forfeit ownership of
valuable petroleum resources beneath those lands. The importance of
submerged lands to the United States' goal of securing a supply of
oil distinguishes this case from
Montana and
Utah
41
Div. of State Lands, where the disputed submerged lands
were unnecessary for achieving the federal objectives.
2
Under
Utah Div. of State Lands, we must ask not only
whether the United States intended a reservation to include
submerged lands, but also whether the United States intended to
defeat a future State's title to those lands. The Master found that
Congress expressed a clear intent to defeat state title in § l1(b)
of the Alaska Statehood Act. Pub. L. 85-508, 72 Stat. 347. That
section provides that the United States has the "power of exclusive
legislation ... as provided by [the Enclave Clause of the
Constitution, Art. I, § 8, cl. 17,] over such tracts or parcels of
land as, immediately prior to the admission of said State, are
owned by the United States and held for military ... purposes,
including naval petroleum reserve numbered 4 [the National
Petroleum Reserve]." The Master concluded that § l1(b), "in
referring to the Reserve as 'owned by the United States,' clearly
contemplate[d] continued federal ownership of the Reserve." Report
433.
Alaska argues that § l1(b)'s reference to exclusive federal
legislative authority over the Reserve under the Enclave Clause
says nothing about United States'
title to submerged lands
within the Reserve. Alaska suggests that the United States need not
own all lands within a military area to exercise
jurisdiction, and Congress "had no reason to defeat State title to
submerged lands [since] it always retains plenary authority to
regulate navigable waters for defense purposes." Alaska Exceptions
Brief 64. Alaska thus attempts to align this case with
Utah Div.
of State Lands, where we found no clear intent to defeat state
title to the bed of Utah Lake, in part because the United States
need not have defeated state title to preserve its ability to
develop a reservoir or water reclamation project at the lake. 482
U. S., at 208.
42
Alaska's argument fails for several reasons. First, Alaska
ignores the fact the Reserve was not created to preserve the United
States' "authority to regulate navigable waters for defense
purposes," but to preserve the Government's ability to extract
petroleum resources. Ownership may not be necessary for federal
regulation of navigable waters, but it is necessary to prevent the
Reserve's petroleum resources from being drained from beneath
submerged lands. Second, when the United States exercises its power
of "exclusive legislation" under the Enclave Clause, it necessarily
acquires title to the property. See
James v.
Dravo
Contracting Co., 302 U. S. 134, 141, 142
(1937) ("[The Enclave Clause] governs those cases where the United
States
acquires lands with the consent of the legislature of
the State for the purposes there described" (emphasis added)); see
also
Collins v.
Yosemite Park &
Curry Co.,
304 U. S. 518,
527 (1938). Third, Alaska's argument that § l1(b) of the Statehood
Act says nothing about federal ownership of the Reserve ignores the
fact that, on its face, § l1(b) states that the United States
"owned" the Reserve.
As discussed
supra, at 38-41, the Reserve included
submerged lands. Section l1(b) thus reflects a clear congressional
statement that the United States owned and would continue to own
submerged lands included within the Reserve. The conclusion that
Congress was aware when it passed the Alaska Statehood Act that the
Reserve encompassed submerged lands is reinforced by other
legislation, enacted just before Alaska's admission to the Union,
granting certain offshore lands to the Territory of Alaska. See
Pub. L. 85-303, § 2(a), 71 Stat. 623. Congress expressly exempted
from that grant "all oil and gas deposits located in the
submerged lands along the Arctic coast of naval petroleum
reserve numbered 4 [the National Petroleum Reserve]." § 3(d)
(emphasis added). Moreover, in contrast to
Utah Div. of State
Lands, defeating state title to submerged lands was necessary
to achieve the United States' objec-
43
tive-securing a supply of oil and gas that would necessarily
exist beneath uplands and submerged lands. The transfer of
submerged lands at statehood-and the loss of ownership rights to
the oil deposits beneath those lands-would have thwarted that
purpose.
C
Alaska argues that even if the 1923 Executive Order purported to
include submerged lands within the Reserve for an appropriate
public purpose and even if § l1(b) reflects a clear intent to
defeat state title to all lands within the Reserve, title still
passed to Alaska because the President lacked the authority to
include submerged lands within the Reserve. Alaska Exceptions Brief
58-60. The argument is based in part on
Utah Div. of State
Lands, where we referred to the authority of
Congress to
dispose of property under the Property Clause, Art. IV, § 3, cl. 2.
Since
Utah Div. of State Lands concerned congressional
enactments, it discloses little about the circumstances under which
action by the Executive will defeat a State's equal footing claim
to submerged lands.
As authority for inclusion of submerged lands within the
Reserve, the Master focused on the Act of June 25, 1910, ch. 421,
36 Stat. 847, also known as the Pickett Act. The Act stated:
"[T]he President may, at any time in his discretion, temporarily
withdraw from settlement, location, sale, or entry any of the
public lands of the United States including the District of Alaska
and reserve the same for water-power sites, irrigation,
classification of lands, or other public purposes to be specified
in the orders of withdrawals, and such withdrawals or reservations
shall remain in force until revoked by him or by an Act of
Congress." § 1, 36 Stat. 847 (repealed by the Federal Land Policy
and Management Act of 1976, Pub. L. 94579, § 704(a), 90 Stat.
2792).
44
The Pickett Act nowhere specifically mentions submerged lands,
and Alaska therefore challenges the Master's conclusion that the
Pickett Act gave the President the express authority to dispose of
them. Its argument rests mainly on the proposition that the Pickett
Act's reference to "withdraw[al]" of "public lands" cannot include
submerged lands, because such lands are not subject to sale,
settlement, or entry under the general land laws and therefore need
not be "withdrawn." Cf.
Utah Div. of State Lands, 482 U. S.,
at 203 (1888 Act stated that lands designated for reservoir sites
were "'reserved from sale as the property of the United States, and
shall not be subject ... to entry, settlement or occupation''';
rejecting claim that Act authorized inclusion of submerged lands in
part because such lands were already exempt from sale, entry, or
occupation);
Mann v.
Tacoma Land Co., 153 U. S. 273, 284 (1894)
("[T]he general legislation of Congress in respect to public lands
does not extend to tide lands");
Shively, 152 U. S., at 48
("Congress has never undertaken by general laws to dispose of" land
under navigable waters).
Assuming,
arguendo, that Alaska's construction of the
Pickett Act is correct, it does not control the outcome of this
case. We conclude that Congress ratified the terms of the 1923
Executive Order in § l1(b) of the Statehood Act. Despite Alaska's
protestations to the contrary, there would have been no barrier to
Congress retaining a petroleum reserve, including submerged lands,
at the point of Alaska's statehood, provided it satisfied
Utah
Div. of State Lands' requirements of demonstrating a clear
intent to include submerged lands within the Reserve's scope and a
clear intent to defeat Alaska's title. It follows that Congress
could achieve the same result by explicitly recognizing, at the
point of Alaska's statehood, an Executive reservation that clearly
included submerged lands. Cf.
Utah Div. of State Lands,
supra, at 205-207 (examining United States' claim that
references to the bed of Utah Lake made by the Geological
45
Survey in reserving Utah Lake, taken together with 1890 Act
providing that reservoir sites selected by the Geological Survey
"shall remain segregated and reserved from entry or settlement,"
signaled Congress' ratification of the reservation of the lake bed;
rejecting claim on the ground that Congress was not on notice that
the Geological Survey had reserved the bed of the lake);
Holden v.
Joy, 17 Wall. 211, 247 (1872) (rejecting
Property Clause challenge to President's treaty with Cherokee
Nation; although terms of treaty exceeded express delegation of
authority by Congress to the President, Congress had "repeatedly
recognized" the validity of the treaty by enacting appropriation
statutes). As discussed
supra, at 38-41, the 1923 Executive
Order reflected a clear intent to include submerged lands within
the Reserve. That instrument placed Congress on notice that the
President had construed his reservation authority to extend to
submerged lands and had exercised that authority to set aside
uplands and submerged lands in the Reserve to secure a source of
oil for the Navy. Congress acknowledged the United States'
ownership of and jurisdiction over the Reserve in § l1(b) of the
Statehood Act. Accordingly, Congress ratified the inclusion of
submerged lands within the Reserve, whether or not it had intended
the President's reservation authority under the Pickett Act to
extend to such lands.
D
In sum, we conclude that the United States retained ownership of
submerged lands beneath certain coastal features within the Reserve
at Alaska's statehood. Under the strict standards of
Utah Div.
of State Lands, the Executive Order of 1923 reflected a clear
intent to include submerged lands within the Reserve. In addition
to the fact that the Order refers to coastal features and
necessarily covers the tidelands, excluding submerged lands beneath
the coastal features would have been inconsistent with the purpose
of the Reserve-to secure a supply of oil that would necessarily
46
exist beneath both submerged lands and uplands. Section l1(b) of
the Alaska Statehood Act, which noted that the United States owned
the Reserve and which included a statement of exclusive legislative
jurisdiction under the Enclave Clause, reflects Congress' intent to
ratify the inclusion of submerged lands within the Reserve and to
defeat the State's title to those lands.
v
The United States excepts to the Master's conclusion that
submerged lands within a federal reservation in northeastern
Alaska, now known as the Arctic National Wildlife Refuge, passed to
Alaska upon its admission to the Union in 1959. In November 1957,
the Department of the Interior's Bureau of Sport Fisheries and
Wildlife submitted an application to the Secretary of the Interior
for withdrawal of 8.9 million acres of land "to establish an Arctic
Wildlife Range within all or such portion of the described lands as
may be finally determined to be necessary for the preservation of
the wildlife and wilderness resources of that region of
northeastern Alaska." Alaska Exh. 81 (Application for Withdrawal by
Public Land Order, p. 1). This application was still pending in
July 1958, when Congress passed the Alaska Statehood Act, and in
January 1959, when Alaska was formally admitted to the Union. On
December 6,1960, the Secretary of the Interior issued Public Land
Order 2214, which "reserved" the area "for use of the United States
Fish and Wildlife Service as the Arctic National Wildlife Range."
25 Fed. Reg. 12598. In 1980, Congress expanded the Range to include
an additional 9.2 million acres and renamed it the Arctic National
Wildlife Refuge. Pub. L. 96-487, § 303(2)(A), 94 Stat. 2390.
Before the Master, the parties disputed whether the 1957 Bureau
of Sport Fisheries and Wildlife application for withdrawal and
creation of the Range-filed before but granted after Alaska's
admission to the Union-could prevent title to submerged lands
within the Range from passing to Alaska at
47
statehood. The Alaska Statehood Act transferred to Alaska
certain real property used for the conservation and protection of
wildlife, but withheld from the State "lands withdrawn or otherwise
set apart as refuges or reservations for the protection of
wildlife." Pub. L. 85-508, § 6(e), 72 Stat. 341. Among other
things, the United States argued that the lands within the Range,
including coastal submerged lands, had been "set apart" by the
combined effect of the application and a Department of the Interior
regulation in force when the application was filed and when
Congress passed the Alaska Statehood Act. That regulation provided
that the filing of an application "shall temporarily segregate such
lands from settlement, location, sale, selection, entry, lease, and
other forms of disposal under the public land laws, including the
mining and the mineral leasing laws, to the extent that the
withdrawal or reservation applied for, if effected, would prevent
such forms of disposal." 43 CFR § 295. 11 (a) (Supp. 1958).
Accordingly, under the United States' principal theory, the 1957
Bureau of Sport Fisheries and Wildlife application had the legal
effect of segregating or "setting apart" all lands within the
projected boundaries of the Range, including submerged lands, as a
wildlife refuge. If this were so, § 6(e) of the Alaska Statehood
Act withheld such lands from Alaska at statehood.
The Special Master rejected this approach. He focused on the
fact that § 6(e) prevents transfer only of those lands "set apart
as refuges or reservations for the protection of wildlife."
(Emphasis added.) The Master concluded that, taken together, the
1957 application and the Department of the Interior regulation
"caused land to be set apart
for the purpose of a wildlife
reservation," but found that the land "was not yet set apart
as a refuge or reservation" upon Alaska's admission to the
Union, because the application had not yet been granted. Report 464
(first emphasis added). Since the application and regulation did
not withhold the lands within the Range from Alaska under § 6(e) of
the Alaska
48
Statehood Act, the Master concluded that coastal submerged lands
within the Range passed to Alaska upon its admission to the Union.
Because real property used for conservation of wildlife, but not
set apart as a wildlife refuge or reservation, would have been
transferred to Alaska, the Master's approach arguably calls into
question federal ownership of
uplands as well as submerged
lands within the Range. See
infra, at 60-61.
Alaska had argued in the alternative that, even if the
application was effective to prevent submerged lands within the
Range from passing to Alaska at statehood, the boundaries of the
Range did not embrace certain submerged lands between the mainland
and the barrier islands along Alaska's northeastern coast. The
Master's recommendation in Alaska's favor on the effect of the
application, if accepted, would have made irrelevant the dispute
concerning the boundaries of the Range. The Master nevertheless
addressed Alaska's alternative argument and resolved the boundary
dispute in the United States' favor. Report 478-495. The Master
also considered the effect of
Montana and
Utah Div. of
State Lands on Alaska's ownership of submerged lands within the
Range. In supplemental briefing submitted after we decided those
cases, Alaska argued that the 1957 application reflected no clear
intent to include submerged lands within the Range. Even if the
application embraced submerged lands, Alaska asserted, the United
States had identified no evidence that Congress intended to defeat
Alaska's title to those lands. Relying principally on a statement
of justification attached to the 1957 application, the Master found
a clear intent to include submerged lands within the Range. That
statement of justification described the seacoast as "provid[ing]
habitat for polar bears, Arctic foxes, seals, and whales," Alaska
Exh. 16 (Memorandum from the Director of the Bureau of Sport
Fisheries and Wildlife to the Bureau of Land Management, Nov. 7,
1957, p. 2); the Master reasoned that the drafters of the
application "[could] not have thought
49
this habitat was only upland," Report 496. In addition, the
Master noted that the original boundary of the Range was the high
water mark along the Arctic Coast; the drafters changed the
boundary to the extreme low water mark so as to include the
tidelands within the Range.
Ibid. The Master also found that
the application reflected an intent to defeat Alaska's title,
pointing out that the reservation was "meant to have permanent
effect," not merely to hold whatever submerged lands were made part
of the Range until Alaska's admission to the Union.
Ibid.
The United States excepts to the Special Master's conclusion
that the 1957 application and the Department of the Interior
regulation, read together, did not have the effect of "setting
apart" lands within the Range "as [a] refugee] ... for the
protection of wildlife." Alaska defends the Master's conclusion
concerning the legal effect of the application. Alaska also defends
on alternative grounds the ultimate conclusion that submerged lands
within the Range passed to Alaska, arguing that the United States
did not clearly intend to include submerged lands within the Range
and that the United States did not clearly intend to defeat
Alaska's title to those lands. In essence, Alaska challenges the
Master's conclusion that the 1957 application met the requirements
of
Montana and
Utah Div. of State Lands-a conclusion
appearing in a section of the Report to which it did not except.
See Report 495-499. As will become clear, however, although the
Master considered separately whether the application had the effect
of "setting apart" lands within the Range within the meaning of §
6(e) and whether the requirements of
Montana and
Utah
Div. of State Lands had been met, those inquiries overlap
considerably. We therefore must address the application of
Montana and
Utah Div. of State Lands to this
case.
A
As with the Reserve, the boundaries of the Range, as drawn by
the Master, encompass both submerged lands be-
50
neath tidelands and inland navigable waters-which would
ordinarily pass to Alaska under the equal footing doctrine as
confirmed by the Submerged Lands Act-and submerged lands beneath
the territorial sea-which would pass to Alaska only by virtue of
its Submerged Lands Act grant. As discussed
supra, at 35-36,
Congress has chosen in the Submerged Lands Act to exercise its
paramount authority over submerged lands beneath the territorial
sea by granting such lands to a coastal State, unless the Federal
Government "expressly retained" the lands in question when the
State entered the Union. 43 U. S. C. § 1313(a); see § 1301(a).
Applying the logic of
Montana and
Utah Div. of State
Lands, therefore, we ask whether the United States clearly
included submerged lands within the Range and intended to defeat
state title to such lands. If it did, the United States will have
demonstrated that it "expressly retained" the coastal submerged
lands at issue in this case, including tidelands and lands beneath
the territorial sea.
B
The Master examined the legal effect of the 1957 application in
one section of his Report and applied the analysis of
Montana and
Utah Div. of State Lands in another.
These inquiries overlap significantly, as the Government's argument
makes clear. The Government claims that the 1957 Bureau of Sport
Fisheries and Wildlife application reflected the United States'
clear intent to include submerged lands within the proposed Range,
satisfying the first inquiry under
Utah Div. of State Lands.
As for the second inquiry, the Government argues that the United
States expressly retained all lands within the Range, including
submerged lands, with § 6(e) of the Alaska Statehood Act. That
subsection prevented the transfer to Alaska of any lands "set
apart" as a refuge. The Government maintains that the legal effect
of the 1957 application was to "set apart" the Range as a refuge.
If so, the Government argues, § 6(e) reflects a clear
51
congressional intent to defeat state title. We address the terms
of the application and the proper interpretation of § 6(e) in
turn.
1
It is clear that the 1957 application by the Bureau of Sport
Fisheries and Wildlife for withdrawal of lands in northeastern
Alaska included submerged lands. The application contained a
boundary description beginning from "the line of extreme low water
of the Arctic Ocean" at the Canadian border and following "westerly
along the said line of extreme low water, including all offshore
bars, reefs, and islands" to Brownlow Point. Alaska Exh. 81, p. 3.
Because the boundary follows the line of extreme low water, the
Range necessarily encompasses the periodically submerged tidelands.
The boundary description also expressly refers to certain submerged
lands, including offshore "bars" and "reefs." Moreover, a statement
of justification accompanying the application illustrates that the
Range was intended to include submerged lands beneath other bodies
of water. The statement explained that "countless lakes, ponds, and
marshes [within the proposed Range] are nesting grounds for large
numbers of migratory waterfowl that spend about half of each year
in the United States .... The river bottoms with their willow
thickets furnish habitat for moose. This section of the seacoast
provides habitat for polar bears, Arctic foxes, seals, and whales."
Alaska Exh. 16, p. 2. As the Master concluded, the drafters of the
application would not have thought that the habitats mentioned were
only upland. Report 496.
The express reference to bars and reefs and the purpose of the
proposed Range each distinguish this case from M
ontana and
Utah Div. of State Lands. In those cases, we concluded that
submerged lands beneath certain bodies of water had not been
conveyed or reserved, despite the fact that the bodies of water
fell within the boundaries of the conveyance or reservation.
Neither case involved an instrument of con-
52
veyance or reservation that, properly understood, referred to
submerged lands. See
Montana, 450 U. S., at 548, 554;
Utah Div. of State Lands, 482 U. S., at 203. Moreover, in
each case, we focused on the purpose of the conveyance or
reservation as a critical factor in determining federal intent. See
supra, at 38-40. In
Montana, we reasoned that a
conveyance of a beneficial interest in submerged lands beneath a
river on the Crow Reservation would not have been necessary to
achieve the Government's purpose in creating the reservation,
because fishing was not important to the Crow Tribe's way of life.
450 U. S., at 556. Similarly, in
Utah Div. of State Lands,
we concluded that the Federal Government could prevent settlers
from claiming lands adjacent to waters suitable for reservoir sites
and could control the development of those waters, even if lands
beneath the waters in question passed to the State. 482 U. S., at
202, 208. Here, in contrast, the statement of justification
accompanying the 1957 Bureau of Sport Fisheries and Wildlife
application demonstrated that waters within the boundaries of the
Range were an essential part of the habitats of the species the
Range was designed to protect, and that retention of lands
underlying those waters was critical to the Government's goal of
preserving these aquatic habitats.
Alaska resists the conclusion that the application reflected an
intent to include submerged lands within the Range on two grounds.
First, Alaska focuses on the fact that the application sought only
to withdraw lands within the Range from "'all forms of
appropriation under the public land laws' except mineral leasing
and mining locations." Reply Brief for State of Alaska 17 (quoting
Alaska Exh. 81, p. 1). Relying on language in
Utah Div. of State
Lands, Alaska argues that submerged lands are not subject to
disposal under the public land laws and there would have been no
need to exempt them from appropriation under those laws. Alaska
Opposition Brief 17; see 482 U. S., at 203 (rejecting claim that
1888 Act authorized inclusion of submerged lands in part be-
53
cause such lands were already exempt from sale, entry, or
occupation).
Alaska misreads the application. Although the application did
seek to preclude appropriation of lands within the proposed Range
under the public land laws (presumably where those laws would
otherwise apply), the application had a far broader purpose: to
establish a reservation for the use of the Bureau of Sport
Fisheries and Wildlife. See Alaska Exh. 81, p. 1 ("The purpose of
this withdrawal is to establish an Arctic Wildlife Range within all
or such portion of the described lands as may be finally determined
to be necessary for the preservation of the wildlife and wilderness
resources of that region of northeastern Alaska"). Because the
application was not designed solely to prevent appropriation of
lands governed by the public land laws, focusing on whether the
public land laws reach submerged lands cannot end our inquiry into
whether the application embraced submerged lands.
Second, Alaska argues that no "international duty or public
exigency" supported the inclusion of submerged lands within the
application. As we concluded earlier, however, the United States
need only identify an "appropriate public purpose" for conveying or
reserving submerged lands. See
supra, at 40. Creation of a
wildlife refuge is an appropriate public purpose that is served by
including submerged lands within the refuge. Alaska also appears to
suggest that an application alone can
never reveal an
appropriate public purpose, because until the application is
granted it cannot be known whether submerged lands are necessary to
achieve that purpose. See Reply Brief for State of Alaska 14. If
the Secretary of the Interior had granted the withdrawal
application before Alaska's statehood-thereby confirming that an
appropriate public purpose supported the reservation of submerged
lands-Alaska presumably would have no claim that the application
had never covered submerged lands in the first place. It follows
that Alaska objects not to
54
the notion that the application covered submerged lands, but
rather to the proposition that Alaska's title to submerged lands
covered by the application could be defeated even though the
application was still pending when Alaska was admitted to the
Union. We address below whether the United States could have
defeated Alaska's title to lands not yet part of a completed
reservation. See
infra, at 59-61.
Finally, it is important to point out what Alaska does not argue
at this stage of the proceedings. Alaska does not defend the
Master's ultimate recommendation on the alternative ground that the
Bureau of Sport Fisheries and Wildlife lacked the authority to
include submerged lands within an application to set aside lands
for a wildlife refuge. In connection with its exception to the
Master's recommendation that the United States retained submerged
lands within the Reserve, Alaska argued that Congress had not
properly delegated to the Executive its authority under the
Property Clause, Art. IV, § 3, cl. 2, to divest a future State of
its title to submerged lands. Alaska makes no parallel argument
here. Tr. of Oral Arg. 80-81. In any event, the Government does not
claim here that Executive actions alone establish in this case that
the United States retained submerged lands within the Range.
Rather, the Government relies squarely on congressional intent
underlying § 6(e) of the Alaska Statehood Act. Our prior discussion
of ratification of Executive action applies equally here. See
supra, at 44-46. There would have been no constitutional
impediment to Congress designating a wildlife refuge encompassing
submerged lands and retaining title to it upon Alaska's admission
to the Union, provided Congress' actions were sufficiently clear to
meet the requirements of our submerged lands cases. It follows that
Congress could accomplish the same result by recognizing prior
Executive actions. We discuss below whether Congress did so here.
See
infra, at 56-61.
55
In sum, we conclude that the application by the Bureau of Sport
Fisheries and Wildlife to withdraw lands for a wildlife refuge
reflected a clear intent to reserve submerged lands as well as
uplands. The Range's boundary was drawn so that the periodically
submerged tidelands were necessarily included within it; the
boundary description referred on its face to submerged features
such as bars and reefs. Moreover, the purpose of the federal
reservation-protecting the habitats of various species found along
the coast and in other navigable water bodies within the
Range-supported inclusion of submerged lands within the Range.
2
We now consider whether, prior to Alaska's admission to the
Union, the United States defeated the future State's title to the
submerged lands included within the proposed Range.
The Alaska Statehood Act set forth a general rule that the
United States would retain title to all property it held prior to
Alaska's admission to the Union, while the State of Alaska would
acquire title to all property held by the Territory of Alaska or
its subdivisions. Pub. L. 85-508, § 5, 72 Stat. 340. There were
several exceptions to that provision. Of primary relevance here is
§ 6(e), which transferred to Alaska "[a]ll real and personal
property of the United States situated in the Territory of Alaska
which is specifically used for the sole purpose of conservation and
protection of the fisheries and wildlife of Alaska ... [provided]
[t]hat such transfer shall not include lands withdrawn or otherwise
set apart as refuges or reservations for the protection of wildlife
.... "
Id., at 340-341.
In our view, under § 6(e) of the Alaska Statehood Act, the
United States retained the Range as lands "withdrawn or otherwise
set apart as refuges or reservations for the protection of
wildlife," rather than transferring the lands to Alaska. As
discussed above, the 1957 application reflected an intent to
include submerged lands within the Range. Shortly after
56
the application was filed, the Secretary of the Interior
publicly announced the action. See U. S. Exh. 12 (Department of the
Interior Press Release, Nov. 20, 1957); U. S. Exh. 32 (statement of
Secretary Seaton). Formal notice of the application was published
in the Federal Register in January 1958. 23 Fed. Reg. 364.
Moreover, later in 1958, while Congress was considering Alaska's
admission to the Union, the Secretary of the Interior informed
Congress that the application for the Range was pending and
submitted maps showing the area as a federal enclave embracing
submerged lands. See U. S. Exh. 61 (Department of Interior, Bureau
of Land Management, Alaska: Federal Land Withdrawals and
Reservations, July 1958, Section No. 8).2 By virtue of that
submission, Congress was on notice when it passed the Alaska
Statehood Act that the Secretary of the Interior had construed his
authority to withdraw or reserve lands, delegated by the President,
see Exec. Order No. 10355, 3 CFR 873 (1949-1953 Comp.), to reach
submerged lands. If the 1957 application in fact had the legal
effect of "withdraw[ing] or otherwise set[ting] apart" lands within
the proposed Range "as refuges or reservations for the protection
of wildlife" within the meaning of § 6(e), then the United States
retained title to submerged lands as well as uplands within the
Range. This is so despite § 6(m) of the Statehood Act, which
applied the Submerged Lands Act of 1953 to Alaska. The Submerged
Lands Act operated to confirm Alaska's title to equal footing lands
and to transfer title to submerged lands be-
2 Alaska claims that the map submitted to Congress did not
depict the Range, but a 1943 withdrawal under Public Land Order 82,
8 Fed. Reg. 1599, revoked, 25 Fed. Reg. 12599 (1960). Five million
acres of the land to be included in the Range were covered by PLO
82, and the Secretary of the Interior announced a modification of
the terms of PLO 82 and the filing of the application for the Range
at the same time. See U. S. Exh. 12, p. 2; U. S. Exh. 32, p. 2. The
importance of the map is not that it precisely depicts the Range's
current boundaries, but that it shows the area encompassing the
Range as a proposed federal enclave embracing submerged lands.
57
neath the territorial sea to Alaska at statehood,
unless
the United States clearly withheld submerged lands within either
category prior to statehood. In § 6(e) of the Statehood Act,
Congress clearly contemplated continued federal ownership of
certain submerged lands-both inland submerged lands and submerged
lands beneath the territorial sea-so long as those submerged lands
were among those "withdrawn or otherwise set apart as refuges or
reservations for the protection of wildlife."
Under
Montana and
Utah Div. of State Lands, an
intent to defeat state title to submerged lands must be clear. As
this discussion illustrates, the operative provision of the Alaska
Statehood Act, § 6(e), reflects a very clear intent to defeat state
title. The only remaining question is whether an application by the
head of the Bureau of Sport Fisheries and Wildlife, upon which the
Secretary of the Interior had not yet acted, had the effect of
"withdraw[ing] or otherwise set[ting] apart" lands within the
proposed Range "as refuges or reservations for the protection of
wildlife" within the meaning of § 6(e).
Under a Department of the Interior regulation first promulgated
in 1952, 17 Fed. Reg. 7368, and in effect at the time Congress
passed the Statehood Act, an application for a withdrawal
temporarily segregated the lands covered by the application. That
regulation provided:
"The noting of the receipt of the application ... shall
temporarily segregate such lands from settlement, location, sale,
selection, entry, lease, and other forms of disposal under the
public land laws ... to the extent that the withdrawal or
reservation applied for, if effected, would prevent such forms of
disposal. To that extent, action on all prior applications the
allowance of which is discretionary, and on all subsequent
applications, respecting such lands will be suspended until final
action on the application for withdrawal or reservation has been
taken." 43 CFR § 295. 11 (a) (Supp. 1958).
58
The regulation temporarily foreclosed any use of the land that a
decision by the Secretary of the Interior to grant the application
would prevent. It also suspended all pending discretionary
applications and all subsequent applications for other uses of the
land. This temporary segregation remained in effect unless and
until the Secretary of the Interior denied an application. §
295.13(c).
The Special Master adopted the United States' view that the
application and the regulation together "set apart" all lands
within the Range. Report 464. We agree that this conclusion follows
from a straightforward application of § 295.11. Alaska argues that
the regulation was not intended to operate on submerged lands. The
object of the regulation is quite clear: to prevent, during the
pendency of an application, any use of the land that would
frustrate federal control if the application were ultimately
granted. That goal is implicated wherever a threat to future
federal control exists-whether the lands in question are uplands or
submerged lands. The State focuses on the fact that the regulation
segregates lands from sale, entry, or other forms of disposal, and
argues that submerged lands are ordinarily not subject to such
forms of disposal. Cf.
Utah Div. of State Lands, 482 U. S.,
at 203. But the language in
Utah Div. of State Lands on
which Alaska relies reflects the Court's recognition that under the
general land laws opening up lands for settlement, private
parties ordinarily cannot lay claims to submerged lands. In Alaska,
however,
specific laws had opened up certain submerged lands
for mining well prior to the filing of the application for the
Range. See,
e. g., Act of June 6, 1900, § 26, 31 Stat.
329-330 (providing that "land and shoal water between low and mean
high tide on the shores, bays, and inlets of Bering Sea ... shall
be subject to exploration and mining for gold and other precious
metals"); Act of May 31, 1938, ch. 297, 52 Stat. 588 (extending
provisions beyond the Bering Sea to "the shores, bays, and inlets
of Alaska"); Act of Aug. 8, 1947,61 Stat. 916 (extending
59
provisions to lands beneath nontidal navigable waters). In light
of these provisions, Alaska's premise-that there would have been no
need to withdraw or set apart submerged lands to preserve ultimate
federal control-is flawed.
Although the Master concluded that the application and
regulation together "set apart" all lands within the Range, the
Master accepted Alaska's argument that the lands had not been set
apart
"as [a] refugee] ... for the protection of wildlife"
within the meaning of § 6(e) of the Alaska Statehood Act. (Emphasis
added.) The Master found that the application "did not have the
same effect as a reservation of lands, dedicating them to a
specific public purpose." Report 464. The Master reasoned that
under the proviso to § 6(e), the United States would retain
ownership only of "wildlife refuges or reservations
already
established at statehood." Ibid. (emphasis added). Because the
application had not yet been granted, the proviso to § 6(e) would
not prevent the transfer of lands within the Range to Alaska.
We disagree. Under the Master's interpretation, § 6(e) applies
only to completed reservations of land. But Congress did not limit
§ 6(e) to completed reservations. Rather, Congress provided that
the United States would not transfer to Alaska lands "withdrawn or
otherwise set apart as refuges" for the protection of
wildlife. (Emphasis added.) The Master's reading of § 6(e) would
render the broader terminology superfluous. The Court will avoid an
interpretation of a statute that "renders some words altogether
redundant."
Gustafson v.
Alloyd Co., 513 U. S. 561, 574
(1995). In light of Congress' clear intent, it was error for the
Master to conclude that the lands within the Range were not
"otherwise set apart as [a] refug[e]" unless the United States
could point to a completed reservation. In the phrase "set apart as
[a] refug[e]," the word "as" does not carry the requirement that
the refuge be presently established; the phrase aptly describes the
administrative segregation of lands designated to become a wildlife
refuge. Accordingly, the application
60
and regulation, taken together, placed the Range squarely within
the proviso of § 6(e), preventing a transfer of lands covered by
the application to Alaska.
The partial dissent's contrary conclusion rests on the view that
the lands covered by the application "had no certainty of ever
becoming a refuge or reservation."
Post, at 71 (THOMAS, J.,
concurring in part and dissenting in part). But the dissent
identifies nothing in § 6(e) requiring "certainty" that a projected
final action will in fact occur, converting lands designated for a
particular use into lands so used, in order for § 6(e)'s proviso to
prevent the transfer of such lands to Alaska. Moreover, our reading
of the proviso of § 6(e) is reinforced by Alaska's concession that
the
uplands within the Range are held by the United States,
not Alaska. Tr. of Oral Arg. 79; Letter from Attorney General Bruce
M. Botelho to the Clerk of the Court, Mar. 3, 1997, p. 1. If the
Master were correct that the application and regulation did not
operate to "set apart"
submerged lands in the proposed Range
within the meaning of § 6(e), then it follows that the same
instruments could not set apart
uplands within the Range.
Nevertheless, Alaska disclaims ownership of the uplands. The State
argues that it could only have claimed uplands within the Refuge
under § 6(b) of the Alaska Statehood Act, which authorized Alaska
to select a specified amount of "vacant, unappropriated, and
unreserved" federal land. Since Alaska did not select the uplands
before the Secretary of the Interior approved the application for
the Range in 1960, and since after 1960 the uplands were no longer
"vacant, unappropriated, and unreserved," the State cannot now
argue that it owns the uplands.
Ibid. But the State's
argument ignores the main clause of § 6(e). Under that clause, the
United States transferred to Alaska "[a]ll real and personal
property of the United States situated in the Territory of Alaska
which is specifically used for the sole purpose of conservation and
protection of the fisheries and wildlife of Alaska .... " The State
does not explain why all
61
of the lands within the Range-uplands as well as submerged
lands-would not have been transferred to Alaska at statehood as
real property used for the protection of wildlife unless covered by
the proviso. Unless all lands-submerged lands and uplands-covered
by the application were "set apart" within the meaning of the
proviso to § 6(e), they would have passed to Alaska under the main
clause of § 6(e). There is no basis for concluding that the United
States retained uplands but not submerged lands within the
Range.
C
In sum, we conclude that the United States did not transfer to
Alaska submerged lands within the Range at statehood. The 1957
application to create the wildlife refuge clearly encompassed
submerged lands. Since its seaward boundary is the low-water line
along Alaska's coast, the Range necessarily encompasses the
tidelands. Further reflecting an intent to withhold submerged lands
is the statement of justification accompanying the application,
which describes the habitat of various species along the coast and
beneath inland waters. A Department of the Interior regulation in
effect when the application was filed and when Congress passed the
Alaska Statehood Act operated to "segregate" the lands for which
the application was pending. Section 6(e) of the Alaska Statehood
Act expressly prevented lands that had been "set apart as [a]
refug[e]" from passing to Alaska. It follows that, because all of
the lands covered by the 1957 application had been "set apart" for
future use as a refuge, the United States retained title to
submerged lands within the Range. We therefore sustain the United
States' exception to the Master's recommendation.
VI
We overrule Alaska's exceptions to the Special Master's
recommended rulings that (1) Alaska's submerged lands in the
vicinity of barrier islands should be measured as a 3-mile
62
Opinion of THOMAS, J.
belt from a coastline following the normal baseline under the
Convention on the Territorial Sea and the Contiguous Zone; (2)
Dinkum Sands is not an island constituting part of Alaska's
coastline under the Submerged Lands Act; and (3) submerged lands
beneath tidally influenced waters within the boundary of the
National Petroleum Reserve-Alaska did not pass to Alaska at
statehood. We sustain the United States' exception to the Special
Master's recommended ruling that offshore submerged lands within
the boundaries of the Arctic National Wildlife Refuge passed to
Alaska at statehood.
The recommendations of the Special Master are adopted to the
extent that they are consistent with this opinion. The parties are
directed to prepare and submit an appropriate decree for this
Court's consideration. The Court retains jurisdiction to entertain
such further proceedings, enter such orders, and issue such writs
as from time to time may be determined necessary or advisable to
effectuate and supplement the forthcoming decree and the rights of
the respective parties.
The parties shall bear their own costs.
It is so ordered.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join, concurring in part and dissenting in part.
I agree with the Court that the limit of inland waters in the
area of Stefansson Sound should be determined by reference to the
Convention on the Territorial Sea and the Contiguous Zone, in which
Alaska's proposed lO-mile rule finds no purchase. I also agree that
Dinkum Sands is not an island within the meaning of the Convention.
Accordingly, I join Parts I, II, and III of the Court's opinion. I
do not share the Court's view that the United States holds title to
submerged lands within National Petroleum Reserve Number 4. Nor do
I agree with the Court's conclusion that, "at the time of
[Alaska's] statehood," the then-unapproved application to create
the Arctic Wildlife Range "expressly
63
retained" the submerged lands within the boundaries described in
that application under the Submerged Lands Act. I thus respectfully
dissent from Parts IV and V of the Court's opinion.
I
I turn first to the Court's discussion of the National Petroleum
Reserve. The Master's Report posited two possible measures for the
specificity with which Congress must declare its intent to retain
submerged lands that would otherwise pass to a new State. For those
lands under inland waters-lands historically viewed as held by the
United States "for the ultimate benefit of future States,"
Utah
Div. of State Lands v.
United States, 482 U. S. 193, 201 (1987)
(internal quotation marks omitted)-the Special Master employed a
strict presumption of state ownership. The Master determined that
lands under the territorial sea-those lands vested in the States
solely by the Submerged Lands Actought to be presumed to remain in
federal hands under "the principle that federal grants are to be
construed strictly in favor of the United States."
California ex
rel. State Lands Comm'n v.
United States, 457 U. S. 273, 287
(1982).
It is my view, however, that, since the enactment of the
Submerged Lands Act, the test for determining whether submerged
lands-inland or territorial-are conveyed to a newly created State
or retained by the United States is that set forth in the Act.
Following in the wake of our decision in
United States
v.
California, 332 U. S. 19 (1947), as it
did, the Submerged Lands Act is widely recognized for having deeded
to coastal States the submerged lands lying within 3-mile bands
surrounding their coasts. See § 3(a), 43 U. S. C. § 1311(a); see
also
United States v.
Maine, 420 U. S. 515, 525
(1975). The Act declared it 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
64
Opinion of THOMAS, J.
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
.... " § 3(a).
The definition of "lands beneath navigable waters" included
those submerged lands under the territorial sea. See § 2(a)(2), 43
U. S. C. § 1301(a)(2). The Act's undertaking to "ves[t] in and
assig[n] to" the States the rights to those lands thus conveyed to
the States lands that this Court had found in
United States
v.
California to be exclusively federal enclaves. The
definition of "lands beneath navigable waters" also included those
lands beneath
inland waters. See § 2(a)(1) (defining "lands
beneath navigable waters" to include "all lands within the
boundaries of each of the respective States which are covered by
nontidal waters that were navigable" (emphasis added)).
Accordingly-and the majority and I agree to this point-coastal
States entering the Union after the passage of the Submerged Lands
Act gained title to offshore submerged lands and to inland
submerged lands through the operation of that statute.
Section 3, which conveyed and confirmed the States' title to
submerged lands, was subject to a series of exceptions. As relevant
here, § 5 of the Act excepted from § 3's terms "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)." § 5(a), 43 U. S. C.
§ 1313(a) (emphasis added). As to lands beneath the marginal (or
territorial) sea, it is undisputed that the "expressly retained"
exception sets forth the test for determining whether a withdrawal
or reservation of land by the United States is effective in
preventing conveyance of title to submerged lands. It seems clear
to me that it is also the test for determining whether the United
States
65
has retained title to inland submerged lands. Section 3(a) lands
include those beneath both inland and territorial waters. In the
case of a State, like Alaska, that received title to
all of
its submerged lands by virtue of the Submerged Lands Act, there is
no need to consult conflicting presumptions, two-part tests, or
anything other than the stated policy on which Congress has finally
settled. 1
The Court seems to agree with me that the Act is now the
expression of Congress' policy on submerged lands retention. But,
the Court also seems to view the phrase "expressly retained" in the
Act as shorthand for the test we employed in
Utah Div. of State
Lands, a case decided three decades after passage of the Act.
That is, to determine whether submerged lands have been "expressly
retained," we must determine whether Congress
"clearly
intended to include land under navigable waters within the
federal reservation," and whether Congress
"affirmatively
intended to defeat the future State's title to such land." 482
U. S., at 202 (emphases added). I find the Court's reading of the
"expressly retained" language curious. First, as I discuss below,
the language does not lend itself to the Court's construction.
Second, it is not the case that the test set forth in
Utah Div.
of State Lands was simply a restatement of the test employed by
the Court before the enactment of the Submerged Lands Act. Were it
so, then the majority's assertion that the standard in the Act was
described in pre-Act cases and simply "carried forward,"
ante, at 36, into
Utah Div. of State Lands might be
colorable. As it happens, in
Utah Div. of
1 It is, I think, an open question whether the Submerged Lands
Act has any operation as to land beneath inland waters in States
that entered the Union prior to its enactment, thus initially
obtaining title to submerged lands independently of the Act.
Determining whether and how the Act applies to pre-existing States
involves, at the least, complex retroactivity questions not
presented by this case, given that Alaska became a State after the
enactment of the Submerged Lands Act, which Alaska's Statehood Act
expressly incorporates.
66
Opinion of THOMAS, J.
State Lands, the Court addressed for the first time the
argument that a retention-as opposed to a conveyance-of submerged
lands by the United States could defeat a future State's title to
those lands, 482 U. S., at 200. In response, the Court crafted the
two-part test relied on by the majority today.
Id., at 202.
Whatever can be said of that test, it was not before the drafters
of the Submerged Lands Act. Accordingly, there is no reason to
believe that, when Congress employed the phrase "expressly
retained," it intended a meaning not obvious from those words and
not set forth in an opinion of this Court until three decades after
the Act became effective.
But the Submerged Lands Act, I think, embraces at least part of
the policy that we had attributed to Congress in several pre-Act
cases. We have, for example, stated that we would not affirm a
conveyance of inland submerged lands that was not set out in "clear
and especial words,"
Martin v.
Lessee of Waddell, 16
Pet. 367, 411 (1842), or "unless the claim ... in terms embraces
the land under the waters of the stream,"
Packer v.
Bird, 137 U.
S. 661, 672 (1891). It is, I believe, the meaning of these
passages that "expressly retained" captures. Because the only
"lands" described in § 3(a) of the Act are
submerged lands,
the requirement that any retention of them be "expres[s]" means
that the retention must "in terms embrac[e] the land under the
waters." Accordingly, contrary to the Master's conclusion and much
of the majority's analysis, a retention of lands cannot be inferred
from, for example, the purpose of a given attempted federal
undertaking. To be sure, prior to the passage of the Submerged
Lands Act, the Court looked beyond the words used in efforts to
prevent passage of submerged lands to newly created States. For
example, in
United States v.
Holt State Bank,
270 U. S. 49
(1926), the Court noted that "disposals by the United States during
the territorial period are
not lightly to be inferred, and
should not be regarded as intended unless the intention was
definitely declared or
other-
67
wise made very plain." Id., at 55 (emphases added). After
the enactment of the Submerged Lands Act, it appears that not only
is retention of submerged lands not "lightly to be inferred," it is
not to be inferred at all. In this respect, Congress has required
of itself a higher standard than either the Master or the majority
attribute to it.2
Neither the Master, in his exhaustive Report, nor the majority,
in its only slightly less exhaustive opinion, cites anything
meeting what I believe to be the requirement of an express
retention of submerged lands within the boundaries of the National
Petroleum Reserve. The majority focuses, instead, on the
"purpose of a conveyance or reservation" as a "critical
factor in determining federal intent."
Ante, at 39 (emphasis
in original). The Court concludes that the purposes for
establishing the Reserve-primarily to ensure federal possession of
petroleum resources within the Reserve's boundaries-would be
undermined if the United States did not retain the submerged lands.
So "[i]t is simply not plausible," says the majority, "that the
United States sought to reserve only the upland portions of the
area."
Ante, at 39-40. To me, these considerations are
wholly beside the point. Congress, when it incorporated the
Submerged Lands Act into § 6(m) of the Alaska Statehood Act, Pub.
L. 85-508, 72 Stat. 343, demanded of itself an
express
retention of submerged lands to prevent their passage to Alaska. If
Congress had the purpose attributed to it by the majority, the best
way-indeed, the only legal way-for it to realize that purpose was
to state "expressly" that the submerged lands inside the
2 Section 5(a)'s standard is at the same time somewhat more
generous to the United States. In
Utah Div. of State Lands
v.
United States, 482 U. S. 193 (1987), we asserted that a
reservation-as opposed to a conveyance-of land would not be held to
defeat state title to submerged lands even if those lands were
manifestly included in the reservation where there was lacking an
indication from Congress that it "affirmatively" intended to defeat
a future State's title to those lands. See id., at 202. This was,
we thought, required by congressional policy. I do not, however,
perceive that requirement in the language of § 5(a).
68
Opinion of THOMAS, J.
National Petroleum Reserve were retained for the United States.
It may well be, as the majority concludes, that Congress can retain
lands by ratification of or reference to an earlier instrument
describing those lands (the majority points here to President
Harding's 1923 Executive Order). But, congressional ratification of
an instrument that does not-as President Harding's order does
not-"in terms embrac[e] the land under the waters" cannot, anymore
than a statute that fails to do so, constitute an express retention
as required by the Submerged Lands Act.3
Absent an express retention of submerged lands, the Submerged
Lands Act effected the transfer of all submerged lands within the
Territory of Alaska to the State of Alaskaincluding those within
the boundaries of National Petroleum Reserve Number 4. I dissent
from the Court's contrary conclusion.
II
The majority rejects the Master's recommendation that Alaska be
found to hold title to the submerged lands within the Arctic
National Wildlife Refuge. Although I acknowledge that the question
is close, I agree with the Master and would overrule the United
States' exception.4
3 The majority points to a prestatehood enactment, Pub. L.
85-303, § 2(a), 71 Stat. 623, granting certain offshore lands to
the Territory of Alaska, but excepting from that grant" 'oil and
gas deposits located in the
submerged lands'" along the
Arctic coast of the Reserve. See
ante, at 42 (emphasis in
original). This statute is said to "reinforc[e]" the "conclusion
that Congress was aware when it passed the Alaska Statehood Act
that the Reserve encompassed submerged lands."
Ibid. But the
statute proves little more than that Congress was,
circa
Alaska's statehood, capable of expressly referring to submerged
lands. It does not-and the majority does not claim that it
could-operate as an express retention.
4 This conclusion arises out of my review of the United States'
exception to the Master's recommendation on Question 9. Before I
turn to it, I must admit some bafflement as to why the majority
undertakes a review of the Master's recommendation on Question 10.
See
ante, at 51-55. In answer to Question 10, the Special
Master, using reasoning parallel to that of his discussion of
National Petroleum Reserve No.4, concluded that the
69
The United States contends that the submerged lands within the
Refuge were "expressly retained" when Alaska became a State.
Section 5 of the Alaska Statehood Act keeps for the United States
"title to all property, real and personal, to which it has title,
including public lands." 72 Stat. 340. The various subsections of §
6 of the Statehood Act exclude from that general retention a
variety of lands. Section 6(e) provides that federal agencies will
"transfe[r] and conve[y]" to Alaska "[a]ll real and personal
property of the United States situated in the Territory of Alaska
which is specifically used for the sole purpose of conservation and
protection of the fisheries and wildlife of Alaska" under three
statutes.
Ibid. A proviso to § 6(e), however, states that
"such transfer shall not include lands withdrawn or otherwise set
apart as refuges or reservations for the protection of wildlife."
Id., at 341.5
The United States contends that the Refuge was, as of Alaska's
statehood, "set apart as [a] refug[e]." This was accomplished, it
is argued, by means of an application filed with the Secretary of
the Interior in November 1957 by the Bureau of Sport Fisheries and
Wildlife "to establish an Arctic Wildlife Range" within certain
lands in Alaska's northeastern corner. See Report of Special Master
447, n. 1 (Report)
application for withdrawal of the land within the Refuge
included submerged lands. Alaska failed to file an exception to
that recommendation, and we have no more occasion to take it up
than any of the several other questions on which the Master offered
recommendations to which neither party has objected. Because it is
not before us, I express no view on the Master's conclusion as to
Question 10.
5 The term "lands" employed in § 6(e) is presumably to be read
in pari materia with the same term in § 5. Section 5 makes
no express mention of submerged lands, so one can inquire whether,
under the Submerged Lands Act, § 5 (never mind § 6(e), which, as a
proviso to an exception to § 5, cannot outstrip § 5) "expressly
retained" submerged lands for the United States. Alaska, in
forgoing its right to except to the Master's recommendation as to
Question 10, has, I think, given up its opportunity to make any
such argument and I will not take it up.
70
Opinion of THOMAS, J.
(citing Alaska Exh. 81).6 The Government does not argue that the
Refuge was "withdrawn" by the application within the meaning of §
6(e). See Brief for United States 41; Report 463. Rather, the
application falls within § 6(e) because, we are told, the
application "was the legal mechanism by which the Interior
Department at that time 'set apart' public lands for the creation
of a wildlife refuge." Brief for United States 41. Under the
Department of the Interior's regulations in effect at the time, the
effect of an application was to "temporarily segregate such lands
from settlement, location, sale, selection, entry, lease, and other
forms of disposal under the public land laws, ... to the extent
that the withdrawal or reservation applied for, if effected, would
prevent such forms of disposal." 43 CFR § 295.11(a) (1958), 22 Fed.
Reg. 6614 (1957). The regulation further provided that "[s]uch
temporary segregation shall not affect the administrative
jurisdiction over the segregated lands."
Ibid.
The Master acknowledged the regulation's effect, but determined
that, while it may have been to "set apart" the submerged lands
within the Range, the lands were not "set apart
as a refuge
or reservation." Report 464 (emphasis in original). The majority
disagrees, asserting that "[i]n the phrase 'set apart as [a]
refugee],' the word 'as' does not carry the requirement that the
refuge be presently established."
Ante, at 59. "[T]he
phrase," concludes the majority, "aptly describes the
administrative segregation of lands designated to become a wildlife
refuge."
Ibid.
I disagree. As the language of the Bureau of Sport Fisheries and
Wildlife's application made clear, at the time of the application
(and at the time of statehood), no one could say with any certainty
what lands-if any-included within the boundaries set forth in the
application were at that time "designated to become a wildlife
refuge." See Report 447,
6 The United States no longer contends that the application, of
its own force, "expressly retained" submerged lands. See Brief for
United States 29.
71
n. 1 (" 'The purpose of this withdrawal is to establish an
Arctic Wildlife Range within all or
such portion of the
described lands as may be finally determined to be necessary
for the preservation of the wildlife and wilderness resources of
that region of northeastern Alaska'" (quoting Alaska Exhibit 81, p.
1) (emphasis added)). Not only was it unknown whether the lands (or
any of them) would ultimately become a refuge or reservation, but
also, during the pendency of the application, the "administrative
jurisdiction" over the lands remained with the Bureau of Land
Management. See 43 CFR § 295. 11 (a) (1958). The Fish and Wildlife
Service did not begin to administer the Refuge until the
application for it was finally adopted after Alaska's statehood.
See Report 464. As of the time of the Alaska Statehood Act, the
lands within the application had no certainty of ever becoming a
refuge or reservation, and were not then administered as one.
This is not to say that the application and regulation did not
have any effect on the lands described in the application. The
lands within the application were, by operation of the regulation,
free from certain "forms of disposal" during the pendency of the
application. 43 CFR § 295. 11 (a) (1958). I am willing to agree
with the Master and the majority that, under the regulation, the
lands were "set apart." But, they were "set apart" temporarily and
merely to preserve the status quo pending the Secretary's decision
on the application in order that a decision by the Secretary that
such lands should become a refuge or reservation would not be a
nullity. Contrary to the suggestion of the United States that the
regulation "was the legal mechanism by which the Interior
Department at that time 'set apart' public lands for the creation
of a wildlife refuge," Brief for United States 41, that regulation
applied to all applications for withdrawals or reservations of
land, not merely those to create wildlife refuges. See,
e.
g., 43 CFR § 295.9 (1958) (listing who may apply for withdrawals or
reservation without limitation to agencies
72
Opinion of THOMAS, J.
seeking to create wildlife refuges). In my view, then, the
Master overstated the effect of the application and regulation when
he said that they "caused land to be set apart
for the purpose
of a wildlife reservation." Report 464 (emphasis added). The
effect of the set-apart was to ensure that any decision to create a
wildlife refuge-if that were the decision ultimately made-would not
be undermined by prior land actions adverse to any such decision.
Only if the procedures that intervened between the Bureau's
application and the Secretary's decision were merely ministerial,
which the Government is wise not to argue, see 43 CFR § 295.12
(1958) (describing procedures), could the set-apart be accurately
described as
"for the purpose of a wildlife reservation."
Thus, it goes without saying that I do not agree with the
majority's even more ambitious conclusion that the lands were "set
apart
as [a] refug[e]." 7
Nor do I agree with the majority's contention that the Master's
reading would render the "otherwise set apart" portion of § 6(e)
redundant, as only a "completed reservation" of land would prevent
that land from passing to Alaska.
Ante, at 59. I believe
that the proviso in § 6(e) is set forth in broad language in an
attempt to capture all ways in which a refuge or reservation for
the protection of wildlife can be created-not unlike Congress'
attempt in § 3(a) of the Submerged Lands Act to capture every way
in which title to submerged lands could be conferred. See
supra, at 63. Accordingly, Congress' use of the phrase
"lands withdrawn or otherwise set apart" fairly encompasses every
way in which lands can be segregated "as refuges or reservations."
Re-
7 That Alaska has acquiesced in the United States' ownership of
the uplands within the boundaries of the Refuge says nothing
whatever about Congress' intent in enacting the Alaska Statehood
Act. Accordingly, I do not understand the majority's citation to
this point.
Ante, at 60. Indeed, if Alaska's poststatehood
actions are relevant, it must surely be equally relevant that
Alaska strenuously
disputes ownership of the submerged lands
within the Refuge.
73
qmrmg a completed refuge or reservation-by whatever means
created-does not render any portion of the proviso redundant.
For these reasons, I conclude that the Master correctly
determined that the Bureau's application was not sufficient for
purposes of § 6(e)'s proviso. I would overrule the United States'
exception to his recommendation.
III
I would overrule Alaska's exceptions to the Master's
recommendation on the method for determining the limits of Alaska's
offshore submerged lands, and his recommendation concerning Dinkum
Sands' insular status. I concur with the majority on these two
points. I would also overrule the United States' exception to the
Master's recommendation concerning the Arctic Wildlife Refuge. And,
finally, I would sustain Alaska's objection to the Master's
recommendation as to the ownership of submerged lands within
National Petroleum Reserve No.4. On these last two points, I
respectfully dissent.
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