Alaska v. United States

No. 98-35310 (213 F.3d 1092) (9th Cir. May 23, 2000)

ELR Digest

The court holds that title to the bed of the Kukpowruk River in Alaska did not pass from the federal government to the state of Alaska when Alaska became a state in 1959. In public land order (PLO) 82 issued in 1943, the federal government withdrew the land in which the riverbed lies from sale, location, selection, and entry. The PLO also included Naval Petroleum Reserve No. 4, which had been withdrawn in 1923 to provide oil and minerals for military purposes.

The court first holds that the federal government retained title to the bed of the Kukpowruk River when Alaska became a state. As a general rule, the title to land lying beneath navigable waterways passes from the federal government to a state when the state is admitted to the Union. However, the United States clearly intended to include submerged lands when it withdrew public lands within PLO 82. The whole purpose of the withdrawal was to preserve oil and minerals for the war effort, and they lay largely under the submerged lands. In addition, when PLO 82 is considered in conjunction with the Alaska Statehood Act, it is apparent that the United States retained title to the submerged lands in the Statehood Act. In United States v. Alaska, 521 U.S. 1, 27 ELR 21176 (1997), the U.S. Supreme Court construed Statehood Act § 11(b) and held that title to submerged lands within the Naval Petroleum Reserve No. 4 remained with the United States when Alaska became a state. This ruling encompasses PLO 82 because the PLO land was held for military purposes.

The court next holds that submerged lands within PLO 82 did not pass to the state when PLO 82 was revoked subsequent to Alaska statehood. Under Statehood Act § 11(b)(iii), the United States loses exclusive legislative jurisdiction over lands when they are no longer used for military purposes. Revocation presumably meets this test, but loss of exclusive legislative jurisdiction does not cause loss of title. Moreover, the title to submerged lands within the reserved lands do not pass to the state whenever, after statehood, the purpose that caused the lands to be reserved as statehood is no longer served.

The full text of this decision is available from ELR (11 pp., ELR Order No. L-226).

Counsel for Plaintiff
Joanne Grace, Ass't Attorney General
Attorney General's Office
1031 W. 4th St., Ste. 200, Anchorage AK 99501
(907) 269-5100

Counsel for Defendant
Jared A. Goldstein
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[30 ELR 20574]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]