UNITED STATES v. ALASKA
No. 84, Orig.
Supreme Court of the United States
Argued February 24, 1997—Decided June 19, 1997
521 U.S. 1
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
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 National 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
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 I), 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,
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
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
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 low-water 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
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
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
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/CN.4/143 (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 Stаtes: (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
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, 529-530 (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
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
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 Alabama 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 offlying 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
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-
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,
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
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 сonclusion 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-
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
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
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 рeriod 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
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
The issue here has been narrowed to whether Dinkum Sands is “above water at high-tide.” Dinkum Sands has fre
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
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. François, Report on the Régime of the Territorial Sea, [1952] 2 Y. B. Int‘l L. Comm‘n 25, 36, U. N. Doc. A/CN.4/53 (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
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
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
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 water—a 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
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 low-tide 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.
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.
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
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
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
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 rеserve 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,
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
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[s]” them.
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
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
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
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
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 constitutional limitation 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 pre-statehood 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 Div. of State Lands.
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
Alaska argues that
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
As discussed supra, at 38-41, the Reserve included submerged lands.
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
As authority for inclusion of submerged lands within the Reserve, the Master focused on the
“[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 theFederal Land Policy and Management Act of 1976, Pub. L. 94-579, § 704(a), 90 Stat. 2792 ).
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
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 а supply of oil that would necessarily
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.
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
The Special Master rejected this approach. He focused on the fact that
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 sеacoast 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
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] refug[e] . . . 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
A
As with the Reserve, the boundaries of the Range, as drawn by the Master, encompass both submerged lands be-
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
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 Montana 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-
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-
Alaska misreads the application. Although the application did seek to preclude appropriation of lands within the proposеd 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
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 sеt 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
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.
In our view, under
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,
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).
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
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] refug[e] . . . for the protection of wildlife” within the meaning of
We disagree. Under the Master‘s interpretation,
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
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 Statehoоd 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
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 10-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
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 Act—ought 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
“public interest that (1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within
such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States....” § 3(a) .
The definition of “lands beneath navigable waters” included those submerged lands under the territorial sea. See
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).”
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.” Id., 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 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, id., 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 esрecial 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
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,
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 Alaska—including 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
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)
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] refug[e],’ 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,
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.
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-
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 recommendatiоn.
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.