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United States v. Alaska

ELR Citation: 27 ELR 21176
Nos. 84, 117 S. Ct. 1888/(U.S., 06/19/1997)

The U.S. Supreme Court holds that the United States, and not Alaska, holds title to various submerged lands along Alaska's Arctic Coast, in the National Petroleum Reserve—Alaska, and in the Arctic National Wildlife Refuge (the Refuge), formerly known as the Arctic National Wildlife Range (the Range). Both parties sought the right to grant leases for offshore exploration and to share in oil and gas revenues from the contested lands. The Court first holds that Article 3 of the 1964 Convention on the Territorial Sea and the Contiguous Zone applies to determine the coastal baseline with respect to islands fringing the coast. The coastal baseline is the starting point for measuring the U.S. 12-mile territorial sea, the first three miles of which belong to states pursuant to the Submerged Lands Act. Because some of the islands are more than six miles away from each other and the mainland, under Article 3, the United States would own enclaves of submerged lands between the islands and the mainland. The Court holds that the special master properly rejected Alaska's claim that when Alaska became a state, the United States had a general, publicly stated policy of enclosing as "inland waters" areas between the mainland and closely grouped fringing islands. Since adopting the Convention's definitions to give content to the Submerged Lands Act, the Court has 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. Also, the doctrine of nonmutual collateral estoppel does not bar the United States from disputing its alleged 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. The Court cannot conclude that any general delimitation policy identified in the case Alaska cites is controlling. Further, none of the cited historic U.S. proposals regarding treatment of these waters is fully consistent with a simple rule that islands less than 10 miles apart enclose inland waters. And even if a 10-mile rule developed within a decade of Alaska's statehood, Alaska has not shown that any such rule would encompass the islands off its Arctic Coast. Therefore, Alaska's entitlement to submerged lands along its Arctic Coast must be determined by applying the Convention's normal baseline principles.

The Court next holds that Dinkum Sands, a small gravel and ice formation, is not an island. Because Dinkum Sands is not within three miles of the nearest islands or the mainland, it does not meet the requirements of Article 11 of the Convention. It also does not satisfy Article 10 of the Convention, because the Convention's drafting history suggests that, to qualify as an island under Article 10, a feature must be above "mean high water" except in abnormal circumstances. The Court finds no error in the master's conclusion that Dinkum Sands is frequently below mean high water. The Court rejects Alaska's proposed compromise resolution, under which Dinkum Sands would be deemed an island when above mean high water and Alaska's ownership of submerged lands around it would appear and disappear periodically. Not only does Article 10 of the Convention not support such a reading, but Alaska's position makes a sensible application of other provisions of the Convention impossible.

The Court next holds that the United States retained ownership of submerged lands in the Alaskan National Petroleum Reserve when Alaska became a state. The 1923 executive order creating the Reserve reflects a clear intent to include submerged lands within the Reserve. In light of the purpose of the Reserve—retention of federal ownership of land containing oil deposits—it is not plausible that the order was intended to exclude submerged lands, and thereby to forfeit ownership of valuable petroleum resources beneath those lands. Further, the United States intended to defeat the future state's title to those lands. Section 11(b) of the Alaska Statehood Act reflects a clear congressional statement that the United States owned and would continue to own submerged lands within the Reserve. The conclusion that Congress was aware when it passed the Statehood Act that the Reserve encompassed submerged lands is reinforced by other legislation. Moreover, defeating state title to submerged lands was necessary to achieve the U.S. objective. And regardless of whether the president had the authority under the Pickett Act to include submerged lands in the Reserve, Congress ratified the terms of the executive order in the Statehood Act.

The Court next holds that the United States holds title to disputed submerged lands within the Arctic National Wildlife Refuge. When Alaska became a state, the U.S. Department of the Interior (DOI) was considering a subagency's application to establish the Range that ultimately became part of the Refuge, and a DOI regulation provided that the filing of an application would temporarily segregate such lands from various activities. The application reflected a clear intent to reserve submerged lands as well as uplands. 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. And the United States actually defeated the future state's title to the submerged lands included within the proposed range. Under §6(e) of the Statehood Act, the United States retained ownership of lands withdrawn or otherwise "set apart" as refuges or reservations for wildlife protection, reflecting a very clear intent to defeat state title. The application and the regulation together "set apart" all lands within the Range, even though the lands covered by the application were not certain to become a refuge or reservation. Congress did not limit §6(e) to completed reservations. Further, Alaska has conceded that the uplands within the Range are held by the United States, and there is no basis for concluding that the United States retained uplands but not submerged lands within the Range.

Counsel not available at this printing.