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AN E-BULLETIN
LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL
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ALASKA V. UNITED STATES (128ORIG)
Web-accessible at:
http://www.law.cornell.edu/supct/html/128ORIG.ZS.html
Argued January 10, 2005Decided June 6, 2005
Opinion author: Kennedy
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ALASKA v. UNITED STATES
ON EXCEPTIONS TO REPORT OF SPECIAL MASTER
States are generally 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 [their]
coastline. United States v. Alaska, 521 U.S. 1, 6, 9 (Alaska
(Arctic Coast)). The Federal Government can overcome the
presumption of title and defeat a future States claim, however, by
setting submerged lands aside before statehood in a way that shows
an intent to retain title. Id., at 3334. Here, Alaska and the United
States dispute title to two areas of submerged lands. The first
consists of pockets and enclaves of submerged lands underlying
waters in the Alexander Archipelago that are more than three
nautical miles from the coast of the mainland or any individual
island. Alaska can claim these pockets and enclaves only if the
archipelago waters themselves qualify as inland waters. The
second area consists of submerged lands beneath the inland waters
of Glacier Bay, a well-marked indentation into the southeastern
Alaskan coast. To claim them, the United States must rebut
Alaskas presumption of title. The Special Master recommended
that summary judgment be granted to the United States with
respect to both areas, concluding that the Alexander Archipelago
waters do not qualify as inland waters either under a historic inland
waters theory or under a juridical bay theory, and concluding that
the United States had rebutted the presumption that title to the
disputed submerged lands beneath Glacier Bay passed to Alaska at
statehood. Alaska filed exceptions to these conclusions.
Held: Alaskas exceptions are overruled. Pp. 435.
(a) The Alexander Archipelagos waters are not historic inland
waters. To make a historic waters claim, a State must show that the
United States exercises authority over the area, has done so
continuously, and has done so with the acquiescence of foreign
nations. This exercise of sovereignty must have been, historically,
an assertion of power to exclude all foreign vessels and
navigation, United States v. Alaska, 422 U.S. 184, 197, including
vessels engaged in innocent passage, i.e., passage that does not
prejudice the coastal States peace, good order, or security. Based
on his examination of five different periods from 1821 to the
present, the Special Master found that Russia and the United States
historically have not asserted the requisite authority over the
waters of the Alexander Archipelago. The evidence that Alaska
points toincluding incidents during Russian and early United
States sovereignty, and the United States litigating position during
a 1903 arbitration proceedingis insufficient to demonstrate the
continuous assertion of exclusive authority, with acquiescence of
foreign nations, necessary to support a historic inland waters claim.
Pp. 415.
(b) Nor do the Alexander Archipelagos waters qualify as inland
waters under the juridical bay theory Alaska advances in the
alternative. The claimed juridical bays would exist only if, at
minimum, four of the archipelagos islands were deemed to form a
constructive peninsula extending from the mainland and dividing
the archipelagos waters in two. Yet even assuming, arguendo, that
each of the islands should be assimilated one to another, Alaskas
hypothetical bays still would not meet the criteria for juridical bays
set forth in Article 7(2) of the Convention on the Territorial Sea
and the Contiguous Zone (hereinafter Convention). In particular,
the resulting bodies of water north and south of Alaskas
constructive peninsula do not qualify as well-marked indentations
under the Convention, for they do not possess physical features
that would allow a mariner looking at navigational charts that do
not depict bay closing lines nonetheless to perceive the bays limits
in order to avoid illegal encroachment into inland waters. Pp. 15
20.
(c) The United States has rebutted Alaskas presumed title to the
submerged lands underlying the waters of Glacier Bay National
Monument (now Glacier Bay National Park). The United States
can defeat a future States presumed title to submerged lands by,
inter alia, setting the lands aside as part of a federal reservation
such as a wildlife refuge. Idaho v. United States, 533 U.S. 262,
273. To determine whether Congress has used that power, this
Court first asks whether the United States clearly intended to
include the submerged lands within the reservation. If the answer
is yes, the Court then asks whether the United States expressed its
intent to retain federal title to the lands within the reservation.
The Special Masters conclusion that the monument, at the time
of Alaskas statehood, included the submerged lands underlying
Glacier Bay has strong support in the precedents and whole record
of the case, and Alaska does not take exception to it. As for the
second question, the Alaska Statehood Acts (ASA) provisions
suffice to overcome Alaskas ownership presumption arising from
the equal footing doctrine and the Submerged Lands Act (SLA)
and to reserve Glacier Bays submerged lands to the United States.
Under the ASA, Alaska acquired title to any property previously
belonging to the Territory of Alaska and the United States retained
title to its property located with Alaskas borders, subject to
exceptions set forth in ASA 6. The first clause of 6(e) directs a
transfer to Alaska of any United States property used for the sole
purpose of conservation and protection of [Alaskas] fisheries and
wildlife under three specified federal laws. The proviso following
that clause made clear that the initial clauses directive did not
apply to lands withdrawn or otherwise set apart as refuges or
reservations for [wildlife] protection. In Alaska (Arctic Coast),
this Court held that the proviso expressed congressional intent to
retain title to a reservation such as the Alaska National Wildlife
Refuge, and that intent was sufficient to defeat Alaskas presumed
title under both the equal footing doctrine and the SLA. Alaska
cannot avoid that result here.
Alaskas narrow readingthat the proviso applies only to federal
property covered by 6(e)s initial clause, which does not include
Glacier Bayis neither necessary nor preferred. A proviso may
refer only to things covered by a preceding clause, but it can also
state a general, independent rule. The Court agrees with the United
States that the proviso is best r
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