United States v. Alaska – Oral Argument – February 24, 1997

Media for United States v. Alaska

Audio Transcription for Opinion Announcement – June 19, 1997 in United States v. Alaska

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William H. Rehnquist:

We’ll hear argument next in Number 84 Original, United States v. Alaska.

Mr. Koester.

Am I pronouncing your name correctly?

G. Thomas Koester:

Yes, you are, Chief Justice Rehnquist.

William H. Rehnquist:

You may proceed.

G. Thomas Koester:

Thank you, Mr. Chief Justice, and may it please the Court:

This case presents four questions of title to submerged lands along the 500 miles of Alaska’s north coast.

The first question is whether Alaska’s boundaries where there are fringing islands less than 10 miles apart should be determined under the 10-mile rule that this Court in the Alabama and Mississippi boundary case found was the United States policy from 1903 to 1961, a period during which Alaska became a State, or under the more limiting arcs-of-circles method that the United States first applied to fringing islands in 1971.

The second question is whether Dinkum Sands, an alluvial feature similar to the mudlumps off the Louisiana coast that the Court in the Louisiana boundary case found were islands, is an island… whether Dinkum Sands is an island.

The third question is whether Congress in section 11(b) of the Alaska Statehood Act defeated Alaska’s title to the lands underlying coastal lagoons in the National Petroleum Reserve, Alaska.

And the final question is whether Congress in section 6(e) of the Alaska Statehood Act defeated Alaska’s title to the coastal lagoons in the vicinity of the Arctic National Wildlife Refuge.

An application for the refuge had been filed before statehood, but the refuge was not established until after statehood.

The Court has addressed strikingly similar issues in prior submerged lands cases that date back more than 150 years.

On each of the four questions presented here, the United States asks the Court to depart from those prior decisions.

The Court should reject the United States’ invitation and treat Alaska as it has treated other States.

The first question here is whether the parties’ submerged lands ownership in areas enclosed by near-shore fringing islands should be determined under the 10-mile rule or the arcs-of-circles method.

Sandra Day O’Connor:

Now, the 10-mile rule, you’re referring to the horizontal sort of connections between islands, and the 10 miles in between the ends of the two islands that are off-shore?

G. Thomas Koester:

That’s correct.

Sandra Day O’Connor:

You’re not talking about some vertical rule.

You’re talking about the horizontal connecting line.

G. Thomas Koester:

That’s correct, Justice O’Connor.

We’re speaking of near-shore fringing islands that enclose a water body, and not islands that are an archipelago or peninsula that stick out into the sea.

The consequences–

Sandra Day O’Connor:

And this Court dealt with that in one sense at least in that Mississippi Sound case?

G. Thomas Koester:

–That’s correct, Justice O’Connor.

That’s the Alabama and Mississippi boundary case that–

Sandra Day O’Connor:

And was that case one that was based on historic treatment, kind of an exception to all other rules, kind of an historic bay argument?

G. Thomas Koester:

–The ultimate decision in that case was that Mississippi Sound constituted historic waters.

Sandra Day O’Connor:

And there’s no historic water claim here, is there?

It’s at least characterized by the State of Alaska as something different.

G. Thomas Koester:

That’s correct, Justice O’Connor.

The historic waters claim requires a demonstration of asserted jurisdiction over a period of time and acquiescence–

Sandra Day O’Connor:

And that is not Alaska’s argument here?

G. Thomas Koester:

–That is correct.

We do not have the historic–

Sandra Day O’Connor:

So to that extent that Mississippi Sound case doesn’t help us all that much.

G. Thomas Koester:

–It does in this respect, Justice O’Connor, and that is that in the Mississippi Sound case the Court found as a fact… not as necessarily a legal principle, but as a fact that the United States’ policy from 1901 to 19… from 1903 until 1961 was to employ this 10-mile rule to delimit its inland waters.

Antonin Scalia:

But an irrelevant fact.

A fact, but an irrelevant fact.

G. Thomas Koester:

Not in our submission.

A very relevant fact.

Antonin Scalia:

If it was decided on the basis of historic bay, then that fact didn’t make any difference.

G. Thomas Koester:

It certainly supported the Court’s decision in that case.

The Court said, we do not need to rely solely on this historic policy, because we have in addition to the evidence of the historic policy specific assertions of jurisdiction with respect to Mississippi Sound, but it was one of the facts that laid the predicate for the Court’s finding that Mississippi Sound was historic waters.

The consequences of using these two delimitation methods in Stefansson Sound are shown in the Master’s figures 3.2 and 3.4, which we have reproduced in our surreply brief opposite page 22, so you can… opposite page 2, I’m sorry, so that you can get a sense of the differences in outcome.

Under the 10-mile rule, Stefansson Sound and other areas enclosed by islands are inland waters.

Sandra Day O’Connor:

Okay, but we are dealing here I guess with the effects of the Submerged Lands Act as to what Alaska got at statehood.

I mean, we’re involved with the Statehood Act and the Submerged Lands Act to determine these coastal boundaries over territorial waters for Alaska.

G. Thomas Koester:

Where there are no inland waters, that is correct.

Uh-huh, right.

G. Thomas Koester:

The Submerged Lands Act defines the coastline from which the State’s–

Sandra Day O’Connor:

And that’s what you’re really talking about now with respect to these islands and how you draw the interconnecting lines.

G. Thomas Koester:

–With respect to these islands, it is our submission that the water areas landward of the islands are inland waters, and that Alaska’s title passed… title to those lands passed to Alaska as a consequence of the equal footing doctrine because they are inland waters.

The Submerged Lands Act–

Sandra Day O’Connor:

Well, I guess the U.S. doesn’t totally agree that… well, doesn’t totally disagree that there may be inland waters, but would take the position that we have to look also to that international convention for what guides us in drawing these lines, and that under that convention the arcs-of-the-circle method is the normal rule.

I mean, a country can deviate from it, but it’s the normal rule.

G. Thomas Koester:

–It is called the normal baseline.

The evidence in our case shows that among those countries with coastlines amenable to the use of the alternative method in the convention, the straight baseline method, the United States is the only country in the world that does not employ that method, that has no particular foreign policy reason for not doing so.

The evidence in our case also shows that the United States has made a determination, the State Department legal advisor made a determination in 1971 that there is no reason for the United States not to use straight baselines less than 10 miles long in Southeast Alaska, where the 10-mile rule had its origin in the 1903 Alaska boundary arbitration.

So we have a situation where the United States from 1903 to 1961 used a delimitation method that provided these lands were inland waters, that was in existence when Alaska joined the union in 1959, and in 1971, for the first time, moved to the arcs-of-circles method that creates these enclaves and pockets which the State Department in 1930 described as anomalous, objectionable, and undesirable, and with no perceivable foreign policy reason for making this change.

G. Thomas Koester:

The inference which we draw from this is that following the Court’s adoption of the Convention on the Territorial Sea and Contiguous Zone in 1965 for submerged lands purposes, the only reason the United States changed from the 10-mile rule to the method of arcs of circles was because it gave it an advantage in these cases where the geography of the coastline is like the geography of Alaska’s North Slope.

William H. Rehnquist:

Do you have any evidence tending to support that, or is it simply a result of there’s no other reason for it so it must have been this?

G. Thomas Koester:

The evidence we have to support it is that in 1971 the State Department legal advisor said we… there is no foreign policy justification… the factual predicate was, the United States published a series of charts in 1971 that for the first time showed this arcs-of-circles method being used in areas where it would create these pockets and enclaves.

One of those areas was Southeast Alaska.

Alaska protested vigorously and loud, and the United States did a relatively serious job of considering whether it should, in fact, revert to its earlier practice of employing the 10-mile rule to enclose these areas as inland waters.

The State Department legal advisor determined that there was no foreign policy justification for failing to do so.

There was no foreign policy justification to refuse Alaska’s request that the United States return to its earlier practice.

Antonin Scalia:

You don’t have to have a foreign policy justification in order not to have the justification of prejudicing Alaska.

I mean, they could have just concluded that this is the better way to do it, that in fact 10 miles is too long, unless you’re dealing with a bay, an entrance to a bay or something, but–

G. Thomas Koester:

I think the United States could do that in its international relations.

The problem is the 10-mile rule was the United States policy at the time Alaska was admitted and, as the Court pointed out in… in the Corvallis Land and… Corvallis Sand & Gravel Company case, a State’s title to lands underlying inland navigable waters vests… and I’m quoting… absolutely as at the time of its admission, and is not subject to later defeasance.

That’s found at 429 United States Report at 370 and 371.

So if the 10-mile rule was the United States policy in 1959, when Alaska was admitted, and these lands were inland waters at that time, under that policy, Alaska’s title vested absolutely–

–Is it clear–

G. Thomas Koester:

–and is not subject to later defeasance.

David H. Souter:

–Mr. Koester, is it clear that we had prior to that time, even using a straight baseline method, the distance was always 10 miles?

I forget where it is, but I thought there was something in the briefs that we had sometimes used 6, that the Government had sometimes used 6 miles.

G. Thomas Koester:

Our evidence, and the evidence that we cite, shows a consistent 10-mile rule at least from the time of the Alaska boundary arbitration.

David H. Souter:

So your position is we… the Government never had used 6?

G. Thomas Koester:

That’s correct.

Antonin Scalia:

I thought that there was no dispute that 10 miles was used for another purpose.

I’m not clear on what that other purpose is.

Is it the entrance to bays?

G. Thomas Koester:

That is correct, and the manner in which this 10-mile rule for fringing islands came about was first in the 1903 boundary arbitration the United States said, all of these waters in Southeast Alaska are inland waters.

They’re inland lakes.

They’re inland seas.

As the United States had said to Cuba in 1863, your Archipelago de los Canarreos are islands that enclose an inland water and an inland sea, as much a lake as any inland lake.

Southeast Alaska was the same thing.

In 1930, at The Hague codification conference, the United States 10 miles apart the rule for bays applies, the 10-mile rule.

Anthony M. Kennedy:

And so your position is that that’s a general rule.

Anthony M. Kennedy:

There does not have to be a showing of some special circumstance to justify its application in a particular case, like a historic bay?

G. Thomas Koester:

That is correct, Justice Kennedy, because from that point forward the United States made several pronouncements of what it referred to as a general rule.

In fact, it made a pronouncement of, this is the general rule except in one limited circumstance, and that is where the area enclosed by the islands is what is known as an international strait, a passageway connecting two areas of high seas.

Otherwise, the United States pointed out… this was in its 1964 brief in the California litigation, so this was after Alaska’s admission.

It said the only time this is not the general rule is where you have an international strait, and Stefansson Sound and none of the areas on Alaska’s North Slope are international straits.

Sandra Day O’Connor:

Could we talk for a moment about what the Master’s conclusion was here, and recommendation?

Did the Master conclude that the United States did have a policy of enclosing waters behind islands as inland waters, where the strait between these islands led to inland waters?

G. Thomas Koester:

Our reading of the Master’s report is that he did not find a policy.

He did not find that the United States had a policy, and it was really on that basis, in effect on a default methodology, that because the United States had no policy, Alaska cannot assert now that it did.

We believe the evidence demonstrates that the Court in the Alabama and Mississippi boundary case was correct, that the 10-mile rule was, in fact, the United States’ policy.

There’s another basis, though–

Antonin Scalia:

Let me ask you just one… the Master was of the view that the United States had adopted in The Hague conference in 1930 a method that was flatly inconsistent with the 10-mile method.

What is your response to that?

G. Thomas Koester:

–The United… at The Hague conference in 1930 the United States made a proposal which included a number of different provisions, one of which was, in order to eliminate these objectionable, anomalous, and undesirable pockets that result from the application of the arcs-of-circles methods, that they be assimilated to the territorial sea.

That approach seems appropriate where you have an international strait, to assimilate it to the territorial sea.

That leaves a right of innocent passage, which is what the United States has always insisted on as a maritime Nation.

But where it does not connect–

Antonin Scalia:

It’s not the 10-mile method, though.

It’s something different from that, isn’t it?

G. Thomas Koester:

–It is… in the limited exception that the United States pointed out in 1964, was the only exception to the 10-mile rule, and that is for these international straits.

Antonin Scalia:

No, I mean the assimilation method that they proposed at The Hague conference was not the 10-mile method.

G. Thomas Koester:

It was based on a 10-mile distance limitation, but it coexisted with the other provision, which was a 10… where straits between islands led to inland seas, the rule applying to bays would apply, and that was a 10-mile rule, to find that they were inland waters.

So what you have were two different alternatives, the two different alternatives that in terms of general principles have existed throughout United States policy.

One is a 10-mile rule for inland waters, a 10-mile rule delimiting inland waters, where there is no need for a right of innocent passage to connect to areas of high seas, and the alternative, the assimilation method, where there is a need, because the area fringed by the islands connects to areas of high seas.

There’s a second reason that Alaska’s position on the 10-mile rule should be sustained by the Court under the Submerged Lands Act, and that is that the language of the Submerged Lands Act is consistent with the 10-mile rule, but it does not allow room for the arcs-of-circles method under the act.

Section 1(c) 43 United States Code 1301–

William H. Rehnquist:

Are you reading from one of the briefs, Mr. Koester?

G. Thomas Koester:

–I am not.

William H. Rehnquist:

Is what you’re about to read… is it found in any of the briefs?

G. Thomas Koester:

Yes, it does, Justice… Chief Justice Rehnquist.

G. Thomas Koester:

It’s mentioned in our opening brief–

Sandra Day O’Connor:

Is it set out anywhere so we could follow along with your reading?

G. Thomas Koester:

–I believe it is.

It’s set out in our opening brief, the red one, at page 30.

Thank you.

G. Thomas Koester:

The Submerged Lands Act defines the coastline from which State submerged lands entitlement is measured the statutory grant to the States is measured, as… and I’m quoting from section 1(c) of the act… the line of ordinary low water along that portion of the coast which is in direct contact with the open sea, and the line marking the seaward limit of inland waters.

Under the 10-mile rule, the coastline consists of the seaward shore–

You’re no longer quoting now?

G. Thomas Koester:

–That’s correct.

Sorry, Chief Justice Rehnquist.

Under the 10-mile rule, the coastline for Submerged Lands Act purposes would consist of the seaward shore of the fringing islands.

That is the shore of those islands that is in direct contact with the open sea, and straight lines connecting the islands.

That is, the seaward limit of the inland waters that are enclosed by those islands.

Under the arcs–

Sandra Day O’Connor:

Provided they’re no more than 10 miles apart.

G. Thomas Koester:

–That’s correct.

That’s correct.

Under the arcs-of-circles method the coastline would include the shore of the islands that faces the mainland, the shore that is not in direct contact with the open sea.

As a result, under the act’s definition of coastline–

John Paul Stevens:

But doesn’t that beg the question whether the land between… the water between the islands and the shore of the mainland is open sea or inland waters?

G. Thomas Koester:

–It begs the question until one looks at the legislative history of the Dawson amendment–

Okay.

G. Thomas Koester:

–whether Congressman–

John Paul Stevens:

So you’d have to go beyond the text of the statute, really.

G. Thomas Koester:

–Unless one uses the plain and ordinary meaning of the words.

If the islands are less than 10 miles apart, they are very close to the shore, they enclose water that is protected from the storms and the other weather influences, safe harbor, if you will, for mariners, it is not in contact with the open sea because it is broken off from the open sea.

It is divided from the open sea by these islands, so under the… what we believe a plain language interpretation of this definition–

David H. Souter:

No, but if you drew the… if you draw the arcs in the manner in which the Government suggests you do, you will have space between the mainland and these fringes of islands which by definition would be open sea, isn’t that correct, and isn’t that why your argument, your textual argument, as Justice Stevens suggested, begs the question?

G. Thomas Koester:

–The history of the United States foreign policy until 1971 is–

David H. Souter:

Well, could you just… just based on the text.

G. Thomas Koester:

–Based on the text, in our view the open sea is seaward of the islands.

One can look, if I may depart from the text of the Submerged Lands Act to the text of the related Outer Continental Shelf Lands Act, the Submerged Lands Act and the Outer Continental Shelf Lands Act were enacted not simultaneously but nearly so.

The Outer Continental Shelf Lands Act clearly is in para materia with the Submerged Lands Act, and what Congress tried to do was to establish the dividing line between State-owned off-shore submerged lands and the Federal outer continental shelf.

It defined the coastline as I have just read.

It defined in the Outer Continental Shelf Lands Act the Federal outer continental shelf as consisting of those lands that are seaward and outside of… and that’s a direct quote… seaward and outside of those conveyed to the States under the Submerged Lands Act.

Now, if one has a coastline for Submerged Lands Act purposes that is in direct contact with the open sea, and the only Federal outer continental shelf are lands that are seaward and outside of those lands transferred to the State under the Submerged Lands Act, Alaska does not see how these pockets and enclaves, which have never been claimed by the United States until 1971, somehow now are seaward and outside of the lands conveyed to the States.

David H. Souter:

Well, in a literal sense they are outside of if they are enclosed by.

In other words, they are waters which are not within the zone which is given to the States, waters outside of them, and therefore there would be a pocket of outer continental shelf lands sort of between the coast and the islands.

I mean, on a literal reading I suppose that’s possible.

Now, it may not be the reading that Congress intended.

I’m not in a position to say that.

But on a literal reading, I suppose it would be possible.

G. Thomas Koester:

I beg to differ only to this extent, and that is, under a normal interpretation these pockets and enclaves would be landward and inside-of because they are, in fact, surrounded.

David H. Souter:

Is there usage in the Outer Continental Shelf Lands Act, or the Submerged Lands Act, for that matter, that indicates that the interpretation you have just… the dichotomy that you have just drawn is one which either or both of those statutes assumes?

G. Thomas Koester:

I believe in our brief at the page I cited there’s legislative history from the Senators showing that they considered the Gulf of Mexico the open sea.

So in direct contact with the open sea, in that geographic circumstance, in their view was the open Gulf of Mexico and only the seaward shore of the islands would count as part of the coastline for Submerged Lands Act purposes.

Antonin Scalia:

The argument you’re now making would perhaps handle your case, but it wouldn’t produce in all instances the same result that you want with the 10-mile rule.

That is to say, in some instances… what is the arc of the circle?

G. Thomas Koester:

Three miles from–

Antonin Scalia:

Three miles.

G. Thomas Koester:

–base points.

Antonin Scalia:

In some instances you may have two islands that are 10 miles apart, and you draw the arcs of circles and they don’t intersect, so you don’t have a pocket inside, and you would have open sea between the land and past the islands, right?

G. Thomas Koester:

It–

Antonin Scalia:

So the argument you’re now making only handles those situations where the arcs do intersect and you have a little triangle within the intersection, right?

G. Thomas Koester:

–Not when the United States foreign policy which was in existence on the date of Alaska’s statehood, the date that Alaska’s title to submerged lands underlying inland waters vested absolutely, not subject to later defeasance, was to claim those areas as inland waters.

Antonin Scalia:

The triangles… sure.

G. Thomas Koester:

The enclaves and pockets.

William H. Rehnquist:

The enclaves.

We’ll resume there at 1:00.

Mr. Koester, will you continue?

G. Thomas Koester:

Mr. Chief Justice, and may it please the Court:

I would like to turn to the lagoons in the National Petroleum Reserve Alaska, if I may.

Alaska makes two points on this question.

First, nothing in section 11(b) of the Alaska Statehood Act on which the United States relies shows a clear intent to include submerged lands in the petroleum reserve or an affirmative intent to defeat Alaska’s title to those lands.

Anthony M. Kennedy:

Are we talking about mineral rights and being a Federal enclave, or are we talking about fee title, or does that make a difference?

G. Thomas Koester:

We’re talking here about fee title.

In fact, the legislative history of section 11(b) of the Alaska Statehood Act shows an affirmative congressional intent that all submerged lands in Alaska would pass to Alaska at statehood.

Second–

Anthony M. Kennedy:

What is the… does the United States ask for fee title to the lands we’re talking about, or just petroleum development, or mineral rights?

G. Thomas Koester:

–My understanding of the United States’ position is that they insist on fee title, that fee title is reserved from the State.

Second, our second point is that nothing in section 11(b) expressly retained… and that’s the phrase used in the exception to the Submerged Lands Act found in section 5(a) of the Submerged Lands Act… nothing in section (b) of the Alaska Statehood Act expressly retained submerged lands in the petroleum reserve.

As with the equal footing doctrine issue, there’s affirmative express direct evidence in the legislative history of the Alaska Statehood Act that Congress intended all submerged lands to pass to Alaska.

As to the first point, there is no dispute that there are some lands in the petroleum reserve subject to the equal footing doctrine, tidelands and juridical bays.

They are inland navigable waters, subject to the equal footing doctrine even following the Court’s 1947 California decision, which held that the equal footing doctrine does not extend off-shore.

In these equal footing doctrine cases, the Court has established a strong presumption of State title to such lands.

Anthony M. Kennedy:

Now, does that apply to lands under… submerged lands under territorial waters or to submerged lands under inland waters, or is that part of the issue in the case?

G. Thomas Koester:

That is part of the issue in the case, Justice Kennedy.

We believe the same presumption extends off-shore but only by virtue of the Submerged Lands Act….

Anthony M. Kennedy:

It seems to me that you want to push the presumption into territorial waters, and the United States wants to somehow defeat the presumption under inland waters.

G. Thomas Koester:

That’s the way we read the parties’ position, Justice Kennedy.

William H. Rehnquist:

Well, does it really make much difference, since the Submerged Lands Act says expressly retain?

That isn’t really much different from the Pollard doctrine, is it?

G. Thomas Koester:

That is our view.

We believe they are quite similar.

In fact, if anything, the expressly retained exception in the Submerged Lands Act would seem to impose a more stringent test on the United States.

William H. Rehnquist:

Certainly it would be easier as a matter of useful law if both meant the same.

G. Thomas Koester:

We believe it would, and we believe that would comport with the intent of Congress that we set out in our reply brief, that Congress intended to extend the principles underlying the Court’s equal footing doctrine decisions offshore.

Anthony M. Kennedy:

But there’s no decision of this Court which would support that specifically.

G. Thomas Koester:

That’s correct.

Because of the presumption of State title as to equal footing doctrine lands, the Court in its 1987 Utah decision held that the United States must make two showings before pre-statehood withdrawal and reservation of public lands defeats State title.

G. Thomas Koester:

First, it must show that Congress clearly intended to include submerged lands in the withdrawal and reservation and, second, it must show that Congress affirmatively intended to defeat State title.

The Court has never held that a pre-statehood Federal withdrawal and reservation has defeated State title, and the United States has made neither of the showings required by Utah here.

Congress did not clearly intend to include submerged lands in the petroleum reserve.

The Pickett Act was the authority under which the executive withdrew and reserved the petroleum reserve.

It authorized the withdrawal and reservation of public lands which, like the statute at issue in the Utah case, do not include submerged lands.

The withdrawal is a withdrawal from disposal, and public lands have never been subject to disposal under the general land laws.

Stephen G. Breyer:

I thought their strongest argument from where I sit was that Congress ratified the withdrawal of the reserve in section 11(b) of the act.

That is, they said that, is this right that 11(b) says that we reserve for exclusive legislative… in other words, we keep the acts that are owned by the United States and held, including the petroleum reserve is there too, whether they were required by cession and transfer, et cetera, et cetera, or by act of Congress, or by executive order.

G. Thomas Koester:

That’s correct.

Stephen G. Breyer:

All right.

So then they’d have to show, was there an executive order that put aside the petroleum reserve, and then the Government points to an executive order that seems to do it, and what is your response to that?

G. Thomas Koester:

The executive order in our view does not do it, because–

Stephen G. Breyer:

All right, but so we just have to focus on the executive order.

The Pickett Act and so forth is beside the point if this other later 11(b) provides the necessary statutory authority, is that right?

G. Thomas Koester:

–Except the executive order was promulgated under the Picket Act.

Stephen G. Breyer:

Well, that may be, but they have it there, and maybe they didn’t have authority under the Pickett Act, but still there’d be an executive order and it would have been ratified later on by section 11(b).

The Statehood Act makes any argument under the Picket Act irrelevant.

Yes.

That’s my point.

And after all, the statehood act was passed by Congress, and the earlier action under the Pickett Act was by the President alone under some authority, whatever authority it had, but once it is clear that Congress has said explicitly, for example in the statehood act, that that is held back to the United States, how do you prevail?

G. Thomas Koester:

Well, to us the question is not answered by looking at what section 11(b) does.

It reserves whatever lands were held as a petroleum reserve under the executive order, and the executive order in turn did not include the submerged lands.

Nothing in the order refers to submerged lands, nothing in the Pickett Act authorized withdrawal of submerged lands–

Anthony M. Kennedy:

But the statute says, including Naval Petroleum Reserve Number 4.

It’s very specific.

G. Thomas Koester:

–Which in our view did not include the submerged lands within the exterior boundaries of the reserve.

Nothing… the fact the submerged lands were included within the exterior boundaries of the reserve tells us nothing about whether the lands themselves were withdrawn and reserved.

Anthony M. Kennedy:

But at the time the Government took them, the Government owned all the lands anyway.

There would have been no point in differentiating between the two.

It owned everything.

G. Thomas Koester:

That’s correct, and it held the submerged lands in trust for the future State of Alaska.

David H. Souter:

If you drilled for oil under the submerged lands and you were lucky, couldn’t you withdraw oil from under the nonsubmerged lands, too?

G. Thomas Koester:

That’s certainly possible.

David H. Souter:

Well, doesn’t that support the argument that this must be a necessary construction of the reservation?

Why would they allow you to sort of do… in effect defeat their reservation under the nonsubmerged lands in such a way?

G. Thomas Koester:

In 1923, there was no proposal for a new State of Alaska, and the United States always has the Commerce Clause power to prevent and protect activities in–

David H. Souter:

No, I’m not so much talking about the meaning of the 1923 description, but the meaning of the reservation of the reserve, and don’t you suppose that Congress in its reservation must have included submerged lands, or you would otherwise be able to extract the oil from under the nonsubmerged lands.

G. Thomas Koester:

–If one looks to a necessary implication, one runs afoul of the terms of the Submerged Lands Act 5(a) exception that the United States relies on for lands that are expressly retained.

A reservation by implication is not an express retention.

Stephen G. Breyer:

Why is it not… I gather the boundary in the executive order goes along the ocean side of the sand spits and islands forming the barrier reef?

G. Thomas Koester:

That’s correct.

Stephen G. Breyer:

Right.

All right, so they must have had some idea what they were enclosing, and it sounds as if you say, it goes along the island, they’re enclosing the water.

G. Thomas Koester:

They’re–

Stephen G. Breyer:

And they’re saying you have to go down through the land under the water to get to the oil, so wouldn’t that be pretty express?

G. Thomas Koester:

–We don’t believe it is express, because there’s no reference to submerged lands.

Again, the fact that submerged lands are included within the exterior boundaries of the withdrawal and reservation says nothing about whether the submerged lands themselves were included.

In both the 1981 Montana case and the 1987 Utah case the exterior boundaries at issue encompassed submerged lands.

In both those cases–

Sandra Day O’Connor:

But not territorial water.

G. Thomas Koester:

–Right.

At this point we’re talking equal footing doctrine lands, which it is conceded there are some, the tidelands and the bays, the juridical bays, and in both Utah and Montana the Court held that the mere fact that the exterior boundaries encompass submerged lands does not necessarily mean that they were included in the Federal action.

In the Indian reservation in the Montana case, title was found to be in the State, despite the fact that the boundary of the reservation ran down the middle of the river.

In the Utah case, the bed of Utah Lake was found to have transferred to Utah at statehood, despite the fact that the exterior boundaries of the reservoir site that had been withdrawn and reserved included those submerged lands.

Stephen G. Breyer:

Didn’t people know at that time that oil was likely to be under the water?

G. Thomas Koester:

They did indeed, and–

Stephen G. Breyer:

All right, so why if you’re having an oil reserve and you draw the boundary across the lagoon, for example, what could you have had in mind if you weren’t trying to get the oil that’s underneath the water?

G. Thomas Koester:

–It seems that the boundary description reflected, turning just for the moment back to the first issue, a policy of drawing the coastline along the seaward shore islands and across the water entrances in between.

It included, of course, as a consequence, the uplands of those islands.

Anthony M. Kennedy:

Well, but the drawing of the petroleum reserve would be for the purposes of extracting the petroleum in the areas which had the greatest potential for petroleum, I assume.

Anthony M. Kennedy:

I don’t see why they would just follow the 10-mile rule, assuming that that’s the rule they followed.

They’re interested in oil, not boundaries.

G. Thomas Koester:

That’s correct, and they clearly included the islands within the petroleum reserve, those above the line of ordinary high water.

Sandra Day O’Connor:

On this point, are you arguing that the 1923 executive order didn’t reflect a clear intent to include the submerged lands within the petroleum reserve?

G. Thomas Koester:

That is correct, Justice O’Connor, and Congress incorporated–

Sandra Day O’Connor:

Are you also arguing there was no public exigency?

G. Thomas Koester:

–We do not believe there was a public exigency, that’s correct.

Sandra Day O’Connor:

So you argue both, is that it?

G. Thomas Koester:

Yes, that is correct, and Congress incorporated the terms of the executive order when it enacted section 11(b), so the question… the issue, even as to what Congress intended, comes down to what did the 1923 executive order do?

Well, particularly with respect to section 11(b), the legislative history of the Alaska Statehood Act shows no intent to reserve submerged lands.

In fact, quite the contrary, and if I may turn for a moment to the statutory confirmation of the equal footing doctrine, the Submerged Lands Act, the section 5(a) exception to the Submerged Lands Act grant is even more stringent that the Utah Lake test.

It is for lands that are expressly retained.

If one looks at the Alaska Statehood Act, there is one instance–

Antonin Scalia:

Where is section 11(b)?

Where does that appear in the materials we have?

G. Thomas Koester:

–At page 432 of the Master’s report.

In terms of expressed retention from Alaska’s Submerged Lands Act grant, Congress considered only one in all of the debates leading up to statehood, and that was for a proposed amendment to the section that made the Submerged Lands Act applicable to Alaska that would have expressly retained a right of access to navigable waters for Government timber contractors in Southeast Alaska, as discussed in our reply brief, the orange brief, at pages 45 and 46.

Even that narrow express retention under the Submerged Lands Act was not in the bill as finally passed by Congress and as it became law, so Congress did, in fact, consider one express retention, and it did not enact it.

There is nothing that says anywhere, in either the text of section 11(b) or in the legislative history of the act, that Congress intended to retain submerged lands in the petroleum reserve.

The United States as a consequence relies on inference, and inferred retention is not an express retention.

And the United States, Justice Kennedy, as you pointed out, seems to be trying to do away with the presumption in favor of the States as to inland waters.

This is a rule that we urge the Court to reject, and the Court’s jurisprudence for 150 years has found a strong presumption in favor of State title.

For those States that were admitted after the Submerged Lands Act, if there is no such presumption, the new States are not admitted on an equal footing, and it’s that simple.

Stephen G. Breyer:

Well, under the… the difficulty I was trying to figure out is, if you… suppose there’s a territory, and the Congress draws a circle somewhere in that territory that’s to be a park.

Now, it might be that Congress when they made that park did not intend clearly to retain the submerged lands in the park, but they did clearly intend to make the submerged lands part of the park.

Retention is different from what you create, so where does the clearness about retention have to be?

G. Thomas Koester:

Under the section 5(a) exception to the Submerged Lands Act, the lands must be expressly retained.

Either they’re expressly retained–

Stephen G. Breyer:

Do we have the clearness of the retention in section 11–

G. Thomas Koester:

–I beg your pardon?

Stephen G. Breyer:

–In section… well, you go ahead.

Forget it.

I’ll deal with it.

Mr. Koester, reading 11(b) as set forth in the Master’s report at 4… it seems to me that one can argue that that’s not talking about property at all.

It’s talking about governance.

G. Thomas Koester:

That’s correct, Chief Justice Rehnquist, and certainly just as the Federal enclave of the district includes private property, or property not owned by the Federal Government, there is nothing that would preclude the transfer of title to the State that would detract from Congress’ power to exercise its constitutional authority to enact exclusive legislation.

If I could turn just briefly to the Dinkum Sands issue, and then reserve my remaining time, the Court in the Louisiana boundary case has said the Mississippi mudlumps are islands.

Dinkum Sands is at least as substantial and permanent as the Mississippi mudlumps and, if they are islands, Dinkum Sands should be, too.

I’ll reserve my remaining time.

William H. Rehnquist:

Thank you, Mr. Koester.

Mr. Minear, we’ll hear from you.

Jeffrey P. Minear:

Thank you, Mr. Chief Justice, and may it please the Court:

I would like first to respond to Alaska’s three exceptions in the order that they are presented in Alaska’s brief.

I will then address the United States exception respecting the Arctic National Wildlife Refuge.

In its first exception, Alaska challenges the Master’s determination of the limits of inland waters in the area between the Alaska mainland and a series of barrier islands that fringe the Arctic coast.

The Master determined those by applying the applicable rules from the Convention on the Territorial Sea and the Contiguous Zone.

He rejected Alaska’s contention that the issue should be determined on the basis of what Alaska calls the 10-mile rule which, according to Alaska, was the policy of the United States respecting islands at the time of Alaska’s statehood.

The Master’s recommendation–

Sandra Day O’Connor:

Well, there is language to that effect in that Mississippi Sound case, certainly, what was the policy, and the policy, we said, was uniformly to apply.

Jeffrey P. Minear:

–Yes, there was that statement in the Alabama and Mississippi Sound case, and I think that is simply that.

It’s simply a passing statement.

It doesn’t control this issue.

We think the Master’s recommendation is correct–

William H. Rehnquist:

You think it doesn’t control this issue for what reason, Mr. Minear?

Jeffrey P. Minear:

–First of all, because it was not essential to the decision in that case.

Second, it must be interpreted in the context in which it was used.

The Mississippi and Alabama boundary case involved Mississippi Sound, and the question of whether it was a historic inland waters for purposes of the convention.

The Court was applying the convention in that case, and was examining whether there had been continuous dominion over Mississippi Sound with the acquiescence of foreign nations.

It made that statement in that context and, as the Special Master pointed out, when it made the statement it made it in a very general sense.

It wasn’t distinguishing a law between, for instance, a strait that leads to an inland sea, which could arguably have been the policy, or a case of islands involving–

William H. Rehnquist:

Do you think the statement was not at all of any relevance to the Court’s analysis in the view of the Court?

Jeffrey P. Minear:

–I think that the Court would have reached the same decision–

William H. Rehnquist:

Yes, I think you’re right, but do you think nonetheless that the Court thought that was a factor, albeit a minor one?

Jeffrey P. Minear:

–Yes.

I think that’s probably fair to say that the Court considered that as a minor factor, but not one that would have influenced the decision.

Antonin Scalia:

And you’re saying it was wrong about that?

Jeffrey P. Minear:

I think it was wrong, and I think that the Alabama and Mississippi boundary case is actually in tension with California, too, which we think is the important case in this area.

This Court expressly–

William H. Rehnquist:

The Alabama case came after the California case, didn’t it?

Jeffrey P. Minear:

–That’s right, but in the California case, in California II, the Court adopted the convention as the… as providing the exclusive methodology for determining the limits of inland waters, and part of its reason for adopting that methodology was its conclusion that there was no formal basis for determining baselines, that there… in fact the Court had… the Court in 1965 examined the same materials that Alaska asks you to examine here, and concluded that none of it amounted to a formal policy.

David H. Souter:

Let’s assume there had been a formal policy prior to that time.

If we accept the convention as the touchstone for interpretation, do you think under the fourth section of the convention it is simply within the discretion of the United States, the Government of the United States to determine what method is to be used in a given instance?

Jeffrey P. Minear:

Yes.

Under the convention, under the terms of the Convention on the Territorial Sea and the Contiguous Zone, the United States has the option of employing straight baselines where it sees fit along its coastline.

The United States has never done that.

Antonin Scalia:

But I presume the United States could change its mind as to whether it wants to use that discretionary option or not, right?

Jeffrey P. Minear:

Yes, the United States could.

Antonin Scalia:

Well, what happens?

Does the territory of Alaska contract and expand as the Government changes its mind regarding the interpretation of the convention?

Jeffrey P. Minear:

No, Your Honor.

The Court addressed that question in California II and said that the rules that it provided in the convention would provide the governing rules.

If, at some point, before there’s a final determination by this Court that we had decided to apply straight baselines, that might very well affect the determination, but instead the Court has focused–

Antonin Scalia:

I really don’t understand this.

I–

–It’s like an estoppel?

Jeffrey P. Minear:

–I think that the appropriate way to look at this, the question that the… the way the Court approached this problem in California II is that it said that when we encounter these issues we will apply the Convention on the Territorial Sea and the Contiguous Zone.

The United States has not applied straight baselines in that context, and so therefore it’s appropriate to look to the arcs-of-circles method for determining what the limits of inland waters might be, and that’s what we are suggesting should be done here.

Antonin Scalia:

But I thought… I’m sorry.

No, excuse me.

What if the United States goes and adopts the 10-mile rule in the future?

Jeffrey P. Minear:

If the United States adopts it in the future, I think the problem we would encounter is that the determination of inland waters should be based on the time that the State became… the State was admitted to the Union, so I think–

Antonin Scalia:

Well, of course, the convention didn’t even exist then, isn’t that right?

Jeffrey P. Minear:

–That’s right, the convention didn’t… the Court has–

That’s very strange.

Jeffrey P. Minear:

–The Court determined that this was the rule that it wished to apply, and it applied the convention rules consistently in all of the tidelands cases, tidelands cases since then, so we’ve had the convention as being the applicable rule in the Louisiana case, the United States v. Maine case–

William H. Rehnquist:

Well, the convention was, what, in 1958?

Jeffrey P. Minear:

–It was signed in 1958, it was ratified in ’61, and it went into force in 19–

Sandra Day O’Connor:

But it shouldn’t go… look backwards, anyway, to a State that became a State earlier than that.

Jeffrey P. Minear:

–But the Court in fact applied it to California and to Louisiana.

Sandra Day O’Connor:

Which is peculiar.

Jeffrey P. Minear:

But–

William H. Rehnquist:

But they had become States before that.

Jeffrey P. Minear:

–Yes, that is right, but I can’t see any reason why we wouldn’t… we’d want to provide a special rule for the State of Alaska.

Part of the value of the convention–

Sandra Day O’Connor:

Well, Alaska became a State after the convention, or before?

Jeffrey P. Minear:

–It–

Sandra Day O’Connor:

It became a State before.

Jeffrey P. Minear:

–It became a State after–

Sandra Day O’Connor:

After.

Jeffrey P. Minear:

–the convention was signed, but before it was ratified and went into effect.

Right.

Jeffrey P. Minear:

So the United States to that extent had reflected by its signature on the treaty its intention to adopt those convention policies at the time of Alaska’s statehood.

I think for that reason there’s no serious problem with applying it to the State of Alaska and, what’s more, we would want to have uniform rules with regard to all of the States.

It doesn’t make any sense to depart from those rules in the case of one particular–

David H. Souter:

What’s the point at which the Government’s choice under Article 4 becomes clear and uniform and consistent and binding for all the future?

Jeffrey P. Minear:

–The United States, in order to adopt straight baselines, would have to indicate its intention on nautical charts that are duly publicized to foreign countries, and the United States has not done that.

It has no intention of doing that, and so for that reason that simply, the straight baselines issue is not relevant.

William H. Rehnquist:

Who would decide that for the United States?

I mean, certainly it isn’t the mapping service.

Jeffrey P. Minear:

No.

Jeffrey P. Minear:

It would be a decision by the President and the Secretary of State.

Antonin Scalia:

And it’s too late now for this case.

I mean, you’re not contending that if the United States changes its mind and says yes, we’re going to go with the option under the convention, that you would then concede that the territorial waters of Alaska expand?

Jeffrey P. Minear:

Of Alaska, or the United States?

If the–

Of Alaska.

Jeffrey P. Minear:

–With respect to Alaska we would say no, it isn’t.

It doesn’t.

It’s too late for Alaska.

For the United States, the United States may still have the option in the international community for adopting a different rule, but that’s a separate matter from what we have here.

David H. Souter:

What is it that makes it too late?

This litigation?

Jeffrey P. Minear:

Yes.

In fact I think that this is… this case… the question that has been posed in this case is whether the United States had a historic policy of applying a straight baseline instead of using a 10-mile rule, and in fact that’s the issue that I would like to address here, because I think we do need some clarification on a few points with regard to that.

We think that the historic bay provisions of the convention provide an adequate opportunity for Alaska to raise claims that there has been a contraction of recognized territory by the United States, but even if you disagree with us on that point, we think the Master is quite correct in his historical analysis.

What he concluded after a careful review of the history is that the United States never had a policy of enclosing lands behind islands under a 10-mile rule.

As he explained, there was a concession in the 1903 Alaska arbitration saying that we did not object to it in the specific context of that case.

There was no mention of that policy again, and in 1930 the United States provided formal comments on the… to The Hague Conference on the Territorial Sea, or on the Law of the Sea, and in that case the United States did not use a 10-mile rule.

Instead, it used an inconsistent methodology, namely a rule of assimilation, so the United States had no such policy in 1930, the one time in which it made a formal statement to the international community.

The Special Master went on and catalogued the history from 1930 past Alaska’s statehood, and indicates quite convincingly that there never was a formal policy of any kind.

There were various statements that may have been made at one time or another that suggested the 10-mile… a 10-mile rule might be applicable under particular circumstances such as, for example, the case of straits leading to an inland sea, but there was no formalized policy and, in fact, Alaska’s own expert, Professor Charney, agreed with that result.

William H. Rehnquist:

If the conclusion is that nebulous, or perhaps not… but just indeterminate that there never was… shouldn’t there be some burden required to overturn the Court’s statement in the Louisiana-Mississippi case that this was the fact?

Jeffrey P. Minear:

I think that in fact what we find is the statement that was made in the California II case, where the Court, in adopting the convention–

William H. Rehnquist:

Well, but that came before the Louisiana-Mississippi case.

Jeffrey P. Minear:

–Yes, but I think that in fact it had examined this issue more carefully.

In the case… and the statement made in the Alabama case, you must remember, was tied to particular facts that were involved there.

As the Court indicated, this was a bay that involved certain cul-de-sacs, and so it could arguably fit within the geography of straits leading to an inland sea, but it does not establish a rule for fringing islands, and what the Court said I think in California II is really quite pertinent.

Before today’s decision… I’m reading from page 24 of our brief, which quotes the opinion.

Before today’s decision, no one could say with assurance where lay the line of inland waters as contemplated by the Submerged Lands Act.

Hence, there could have been no tenable reliance on any particular line.

Jeffrey P. Minear:

After today, that situation will have changed.

The very reason that the Court adopted the convention in 1965 was to provide certainty and assurance, and to rule otherwise in this case would simply upset what has been the controlling rule in all of the cases the Court has decided in its original jurisdiction respecting the tidelands, and that is precisely why we think the Court should adhere to California II and apply the convention strictly, and even if it goes beyond that, it will find that there is not a factual basis to support the application of a 10-mile rule.

I would like to move on to the next issue, a second exception that Alaska raises, which is Alaska’s challenge to the Special Master’s determination that Dinkum Sands is not an island.

The Master concluded that Dinkum Sands is not an island under Article 10 of the convention because, in the Master’s words, Dinkum Sands is frequently below mean high tide.

Contrary to the contentions that Alaska makes in its brief, the Master was correct in concluding that Article 10 requires that an island must, at a minimum, be normally or usually above mean high tide.

His interpretation is a sensible reading of the text, which defines an island as a naturally formed area of land surrounded by water which is above water at high tide.

If Article 10 were read to impose no temporal requirements, then every sandbar that might occasionally peek above the water’s surface could conceivably become an island.

The drafting history of Article 10 indicates that the drafters did not intend that construction.

The initial drafts required permanence.

William H. Rehnquist:

Mr. Minear, Mr. Koester left his argument largely on this point to his brief.

Jeffrey P. Minear:

Yes.

William H. Rehnquist:

So perhaps you’d like to do the same.

Jeffrey P. Minear:

Yes, I’d be happy to do that, if you’d like, and let me just make–

Ruth Bader Ginsburg:

If you would just comment on the comparison with the Mississippi mudlumps, which is this island question.

Jeffrey P. Minear:

–Yes.

Alaska before this Court has compared Dinkum Sands to what are known as Mississippi mudlumps in the Mississippi Delta.

Those are formations that are first of all not carefully described in the record of this case.

They received rather limited attention.

You’ll find a discussion of them in the Special Master’s report where he discussed… discusses the question of horizontal permanence, namely the fact that Dinkum Sands seems to move about horizontally as well as up and down vertically, and that is the sole discussion we have of the mudlumps.

The character of the mudlumps as best as we can describe it from the Court’s past decisions is, these mudlumps appear, and they persist for years, and gradually erode away, so they do not have the character that we find here with Dinkum Sands, a feature that comes and goes within a matter of days or weeks or months, so we don’t think that the mudlumps are an adequate comparison.

In any event, the Court’s discussions of the mudlumps have not indicated conclusively that the mudlumps are islands.

The discussion of these cases has typically described them as a portico to the mainland.

What we have, we think, is debris that’s floating down the Mississippi River and collecting, remaining for a while.

Some of those things may be called mudlumps.

There are also features that actually emerge from the mud themselves, form mounds, but then disappear as well.

The fact is, we just don’t have a good record in this case on mudlumps, and it was not an important part of Alaska’s case on the merits.

Alaska’s evidentiary case was really turned on the fact that an attempt to prove permanence with respect to Dinkum Sands, and as the Master explained, the Dinkum Sands formation is simply not permanent.

The joint monitoring study that we did in 1981, in which we monitored this feature for one full year, showed that it was below mean high tide throughout that year.

If there are no questions about Dinkum Sands, I would like to move on to the third exception, where Alaska challenges the Master’s contention that the United States has routine title to coastal submerged lands within the National Petroleum Reserve.

Alaska had originally conceded in this litigation that the United States had retained those coastal lands, and its only argument was exactly where to draw the Federal–

Sandra Day O’Connor:

Well, but it withdrew that, and apparently the U.S. consented and the Master dealt with it, so that may be interesting historically, but I don’t know that it determines the issue, does it?

Jeffrey P. Minear:

–I… you’re correct, Justice O’Connor, that it does not determine the issue, but I think it certainly–

No.

Jeffrey P. Minear:

–says something about the natural reading of the language of the statutes that we have here.

It was not until 1981 that Alaska first questioned whether these submerged lands were in fact–

William H. Rehnquist:

Maybe that’s the first time they read the statute.

[Laughter]

Jeffrey P. Minear:

–This… well, setting aside Alaska’s change of heart, the Master correctly concluded that the Congress had authorized the President to reserve the NPRA to the Pickett Act, which empowered the–

Sandra Day O’Connor:

What if we disagree with that?

I mean, the Pickett Act was supposed to apply to every State, not just Alaska–

Jeffrey P. Minear:

–Yes.

Sandra Day O’Connor:

–and it really doesn’t speak directly to submerged lands.

Now, suppose we just disagree with that heavy reliance on the Pickett Act.

Has it nonetheless been ratified some way?

Jeffrey P. Minear:

Yes.

We would certainly say that that is the case under section 11(b) of the Alaska Statehood Act.

Sandra Day O’Connor:

But where is the clear expression of the intent to affect submerged lands?

Jeffrey P. Minear:

I think the intention is quite clear from section 11(b), because it refers to the United States securing exclusive jurisdiction over a tract of land owned by the United States and known as the Naval Petroleum Reserve Number 4, which is now the National Petroleum Reserve.

William H. Rehnquist:

But Mr. Minear, I made the point earlier to Mr. Koester I think one can read that notwithstanding language to talk about the authority to govern, not property.

Jeffrey P. Minear:

But this… Chief Justice Rehnquist, this statement was made in the context of the Enclave Clause of the Constitution, which requires… the United States is supposed to acquire title to the land before it can request accessional jurisdiction from the State, so in fact in the case where the United States does attempt to exercise legislative jurisdiction under the Enclave Clause, it acquires ownership of the land as well as jurisdiction.

The two go hand-in-hand under the Constitution.

William H. Rehnquist:

Well, but it was pointed out by your opponent that in the District of Columbia, which is an enclave, there’s certainly a great deal of private property.

Jeffrey P. Minear:

Yes, and the United States would be free to sell property over which it owns and has exclusive legislative jurisdiction.

I don’t think there’s any doubt about that, so that a subsequent conveyance of the property is simply consistent with the complete authority the United States would have over the particular enclave, but I think what we see here–

William H. Rehnquist:

But the United States doesn’t own the enclave in a property sense.

Jeffrey P. Minear:

–I think in the enclaves that I am most familiar with, I think it does.

The example of a military base is a good example, where the United States wishes to exclude any State involvement in the land of the military base whatsoever.

It will purchase the property and receive the State’s permission to exercise exclusive legislative jurisdiction, so that it has… completely ousts the State of any authority within that land, and I think that that is what… when we look at–

Stephen G. Breyer:

Is that a contested issue?

That is, I hadn’t focused on that.

Stephen G. Breyer:

The act, 11(b) refers to tracts set aside by executive order.

That’s the subject matter.

Then it says what will happen to those tracts, and it says those tracts set aside by executive order are reserved for the exercise by Congress of exclusive legislation.

That’s what happens to that.

Jeffrey P. Minear:

–That’s correct.

Stephen G. Breyer:

Now, is there an issue in those case as to whether those latter words, setting aside a tract for exclusive legislation, amounts to reservation of ownership?

Jeffrey P. Minear:

I think that the issue is slightly different from that, Justice Breyer.

I think the issue… we… the way the Special Master read it, and the way that we read it, is that ownership goes hand-in-hand with the acquisition of exclusive jurisdiction, and that’s clear–

Stephen G. Breyer:

Well, is that a contested issue?

Is it that you have one position and they have the other?

That is, do I have to focus on that question and decide whether or not reserving for the power of exclusive legislation by Congress either does amount to keeping ownership of the land or it doesn’t?

I don’t have to decide it, however, unless the two parties are in disagreement about it.

Are they in disagreement about that as this case comes here?

Jeffrey P. Minear:

–I have to–

Yes, is the answer.

Jeffrey P. Minear:

–leave it to Alaska to address that.

I simply don’t know what their position is on that.

We certainly–

Stephen G. Breyer:

You’ve read the briefs more thoroughly than I.

Jeffrey P. Minear:

–Yes.

Stephen G. Breyer:

Does it argue that point in the briefs or not?

Jeffrey P. Minear:

I don’t think it clearly argues that point quite frankly, Your Honor.

I could be mistaken about that, and I’m willing to stand corrected by Alaska, but it certainly has not been an important point in the argument that we have here.

But what I think is also significant is that section 11(b) refers to the tract of land that we’re talking about here as being owned by the United States.

That is the language of section 11(b) that says, over such tracts or parcels of land as immediately prior to the admission of said State are owned by the United States and held for military naval, Air Force or Coast Guard purposes, including the National Petroleum Reserve.

So I think what section 11(b) is a quite clear ratification of the judgment of the President the United States owns all of those lands–

Sandra Day O’Connor:

Well, but Alaska says it only… it doesn’t extend to the submerged off-shore or territorial waters off the coast.

Jeffrey P. Minear:

–I think the–

Sandra Day O’Connor:

Because the designation wasn’t clear enough in the original action that the U.S. took with regard to that.

Jeffrey P. Minear:

–Your Honor, I think first that this does satisfy the express retention requirements of the Submerged Lands Act.

Jeffrey P. Minear:

We identified a particular tract, the United States did, Congress did, I should say, and that tract is defined by said boundary, and that boundary–

Sandra Day O’Connor:

Would it have been sufficient under the Utah lands case, or Utah Lake, do you think?

Jeffrey P. Minear:

–Yes.

Oh–

Sandra Day O’Connor:

It would have met the Utah Lake test?

Jeffrey P. Minear:

–This tract–

Sandra Day O’Connor:

I wouldn’t have thought so.

Jeffrey P. Minear:

–Your Honor, this tract does meet the Utah Lake test, and you can determine that from the Special Master’s treatment of the issue.

He recognized that the NPRA encloses both territorial sea–

Sandra Day O’Connor:

Well, I thought it was possible that the Master didn’t defer adequately to what Utah Lake held.

Jeffrey P. Minear:

–I think that the Master did apply Utah Lake according to its clear language.

Sandra Day O’Connor:

Kind of a watered-down version, I’d say.

Jeffrey P. Minear:

I–

Sandra Day O’Connor:

So to speak.

Jeffrey P. Minear:

–I… Your Honor, I would respectfully disagree with that.

I think the Special Master’s interpretation of Utah Lake is faithful to both the intention and the content of the opinion.

Sandra Day O’Connor:

What if we think it wasn’t?

Jeffrey P. Minear:

If… then I suppose the issue becomes more difficult here, and you might have to separate out the two different areas we have between territorial sea and inland waters, but the Master applied, claimed to apply the Utah Lake test, and we think that he did correctly–

William H. Rehnquist:

Well, if the expressly retained language of the Submerged Lands Act means roughly the same thing as the equal footing doctrine, then would it be necessary to separate those two out if we did agree that the Master had not adequately applied the Utah land rule?

Jeffrey P. Minear:

–I think so, Your Honor, and for this reason, that what we’re applying here clearly is the application of the Submerged Lands Act, which was not at issue in Utah Lake, and the reason why the Court came up with its presumptions in Utah Lake was because it needed a rule to determine congressional intent.

That’s what the issue is here.

It’s ultimately, what did Congress intend?

There was no clear rule with regard to the 1888 act involving Utah Lake, and I think the Court quite rightly expressed some concerns in that case about the expansive result of that statute.

Sandra Day O’Connor:

Well, there was some expression maybe in the Utah lands case in the opinion itself about its application to territorial waters versus the inland situation.

Jeffrey P. Minear:

Yes.

Inland lake.

Jeffrey P. Minear:

But I think that the concern that I have about this is that Congress has dealt with the problem you faced in Utah Lake, namely has provided a statute that deals with the question of State retention of submerged lands and Federal retention of submerged lands, and that is the Submerged Lands Act.

It established a test, which is the expressly… a test that includes several exceptions, including the expressly retained exception that we rely on here.

I think it would be a very strange rule of statutory construction to say that what Congress meant when it used that statute was the language this Court used almost 20 years later, more than 20 years later in the Utah Lake case.

I think we have to look at the language–

William H. Rehnquist:

So you say then… you say that it is two different tests, that expressly retained is not the same as the Pollard test as amplified.

Jeffrey P. Minear:

–We think you should interpret that language, and apply that language directly based on what its plain content is.

William H. Rehnquist:

Well, I… could you tell me whether you think the expressly retained language is a test just about like the Pollard test, or different?

Jeffrey P. Minear:

I think that it is similar.

I think it is similar in the case–

William H. Rehnquist:

Well, but that doesn’t… in other… it’s neither just about like Pollard or different.

It’s similar, is your answer.

Jeffrey P. Minear:

–Well, maybe it’s helpful to look at it in the specific context of this case.

William H. Rehnquist:

Well, can’t you answer the question?

Jeffrey P. Minear:

Yes.

Yes, Your Honor.

My answer is this, that we think that the Submerged Lands Act test, expressly retained, does embrace the situation we have here where Congress addresses a tract of land that has defined boundaries that extend out and include submerged lands.

We think that that does qualify as an expressed retention.

I think Justice O’Connor indicated she had some doubts whether Utah Lake would go that far.

The Master thought that it did, and we think so as well.

If you disagree and think that Utah Lake imposes a stricter standard, we say that no, the Submerged Lands Act test is more limited, and it’s limited in accordance with what the Special Master suggested in this case.

I would like to move on, in the time that I have remaining, to discuss the question of the United States ownership of coastal submerged lands within the Arctic National Wildlife Refuge.

This is the exception the United States has raised in this case, and we disagree with Alaska on a narrow but important point of law.

We explained to the Master that section 6(e) of the Alaska Statehood Act, which retains in Federal ownership land withdrawn or otherwise set apart as refuges or reservations–

This is at 6(e)?

Jeffrey P. Minear:

–6(e) of the statehood act–

Thank you.

Jeffrey P. Minear:

–that’s correct.

It is found at… in the U.S. exception brief, the first brief we filed.

In the appendix it’s page 6A.

But section 6(e) of the statehood act retained in Federal ownership lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife, and we believe that that preserved the land contained within the Arctic wildlife range, including the submerged lands.

We noted to the Master that those lands fall squarely within section 6(e), because the United States had set them apart through administrative action in accordance with Federal regulations and then in force.

David H. Souter:

May I ask you about that?

The reason you say that had been done is, I believe there was an application from, what was it, the Fish & Wildlife Service?

Jeffrey P. Minear:

It was the Bureau of Sport Fisheries–

Okay, Bureau of–

Jeffrey P. Minear:

–which is a division of the Fish & Wildlife Service.

David H. Souter:

–Who else, in or outside of the National Government, might have made such an application?

Jeffrey P. Minear:

Under the regulations that were in effect at that time, 43 C.F.R. 295.11(a), a State and a State agency, the heads of State agencies could also have filed an application, but these were… these applications were restricted to Government applications, and they were done only after careful study.

Obviously, the typical application was coming from the Federal Government.

States rarely were filing applications to request the United States to set aside Federal lands for the Federal Government’s use.

David H. Souter:

But if you’re right about this, then the reservation would be effective, assuming language identical to 6(e), based in effect upon the application of any bureaucrat in a State agency.

Just file the application, and that in effect would satisfy the 6(e) criterion for otherwise set aside.

Jeffrey P. Minear:

It would have had to have been the head of a State agency, and I think that simply reflects a… an element of deference of the Federal Government to the judgments of the States.

If the States in fact felt that land should be set aside for a particular purpose, the United States would withdraw those lands for a study and retain them in that purpose for… you know, consistent with that purpose.

William H. Rehnquist:

But that doesn’t amount to actually setting them apart, I don’t think, under the statute.

The Secretary, as the Master point… could ultimately turn the thing down.

Jeffrey P. Minear:

Well, that’s correct, but if the Master, or if the Secretary turned them down and there had not been the intervening statehood that we had here, the lands would certainly revert to their former State.

Where we have, however–

Antonin Scalia:

Excuse me, and there had not been an intervening statehood, right?

Jeffrey P. Minear:

–Yes.

Antonin Scalia:

But your position is that if the application had been filed, statehood occurs, and then the application is denied and it said we’re not going to set this aside for a wildlife refuge, it’s still withdrawn from the State, that the State does not own that land.

Jeffrey P. Minear:

Based on the judgment that Congress made in this case, Congress determined that the lands that would be held and retained by the United States would be lands that were either withdrawn or otherwise set apart, so it clearly meant to go beyond–

Antonin Scalia:

For a wildlife–

Jeffrey P. Minear:

–For a wildlife refuge, and so clearly it meant to go beyond land that had been formally withdrawn, and we think it meant to include as well land that was under consideration.

Now, if–

Antonin Scalia:

–But only for a wildlife refuge.

What about another application to close this certain tract to mineral leasing and other uses, but because we’re going to reserve it not for a wildlife refuge but for… I don’t know, whatever, a national park.

Jeffrey P. Minear:

–In those cases, because the statehood act did not reach the question, go beyond wildlife refuges, those lands would not have remained in the–

Antonin Scalia:

So the purpose of the application is what governs?

Jeffrey P. Minear:

–Yes, well, we think that what we have here is that Congress enacted the statehood act with recognition that there were these situations such as the Arctic National Wildlife Refuge, and that the Secretary acted on the reasonable reliance on the language of the statute.

He knew that he had set it apart.

He read the statehood act and could see that since he had set it apart it would be retained in Federal ownership for his ultimate action.

Anthony M. Kennedy:

Are you saying that 6(e) is more specific than 6(m) and therefore trumps it?

Jeffrey P. Minear:

Yes.

Jeffrey P. Minear:

I think that is the correct way to read these provisions, together, that… and remember that section 6… Justice Kennedy, remember that section 6(m) contains 5(a), which is… provides for express retentions, so in fact 6(a) is quite consistent with the Submerged Lands Act insofar as… 6(e) is simply an example of an express retention.

It was–

Anthony M. Kennedy:

Well, but if we thought it was not expressly retained under 6(m), do you still think you would prevail under 6(e)?

Jeffrey P. Minear:

–We still think that we should in this case.

Obviously it could be a more difficult issue in that case, but we think when you read the provisions together, it makes sense to read 6(e) and 6(m) in the way that I have suggested, namely that this is an express retention in accordance with the Submerged Lands Act, and the terms of the express retention were lands that were withdrawn or otherwise set apart as a wildlife refuge, and then finally, the last part of our argument here is that these lands were, in fact, set apart as a wildlife refuge, and so therefore they qualify.

David H. Souter:

I guess your argument would be strongest if the setting apart here were regarded, or could be regarded as, at least as permanent, or for that matter at least as impermanent as a withdrawal, so I want to ask you about what withdrawal would entail.

Could the United States, for example, withdraw certain public lands from sale following statehood, then say, well, we’ve changed our mind, they can be sold now?

In which case, it would still be lands of the United States and not go to the State.

Could that happen?

Jeffrey P. Minear:

I believe… my answer to this is yes.

As I understand your question, Justice Souter, you’re hypothesizing a case where the United States has withdrawn its own Federal lands after statehood and then decides–

David H. Souter:

No, before statehood.

Jeffrey P. Minear:

–Oh, before–

David H. Souter:

And then statehood, and then it says, oh, well, we don’t want to withdraw them any more.

We want to cancel the withdrawal.

In which case, the lands remain with the United States, but they are subject to sale.

Jeffrey P. Minear:

–Yes.

David H. Souter:

And that… if that’s the way it would work, then the withdrawal and the otherwise set apart would seem to be of equal permanence or impermanence, and I suppose that would therefore buttress your argument.

Jeffrey P. Minear:

Yes.

In fact, Justice Souter, that’s exactly what would happen, keeping in mind that oftentimes we’re dealing with uplands rather than submerged lands.

David H. Souter:

Right.

Jeffrey P. Minear:

There would be no question of title transferring at all.

But in the case of an upland withdrawal that the United States owned, statehood has no effect on it whatsoever, and we’re simply suggesting the same effect should result–

David H. Souter:

And the Government can change its mind.

Jeffrey P. Minear:

–And the Government can change its mind.

Sandra Day O’Connor:

Well, under the Master’s reading 6(e), does it call into question, not in this case but perhaps in the future, the ownership of the uplands as well?

Jeffrey P. Minear:

I think that the Master’s reading could have that effect.

Sandra Day O’Connor:

I would think so.

Jeffrey P. Minear:

That’s a serious concern for us, is that–

Sandra Day O’Connor:

Is there a different theory that would answer the case but not require that conclusion?

Jeffrey P. Minear:

–The United States has an argument that these lands remain in Federal ownership because they’re a part of another land withdrawal called PLO 82.

However, that issue is also in litigation as well, but I think if the Court agrees with the Special Master in this case, it does raise some serious questions for us with regard to the Arctic National Wildlife Refuge.

Anthony M. Kennedy:

Well, Alaska has not conceded ownership of the uplands in the United States?

Jeffrey P. Minear:

I believe the United States has… I have to be careful about this, because I’m not sure what Alaska’s arguments are in all of the various litigations we have here.

I believe they have conceded the uplands ownership in the Arctic National Wildlife Refuge, but again I can’t be sure that they have–

Stephen G. Breyer:

Have they conceded, or is… do we have to decide… in respect to this objection of yours, your exception, is the issue before us simply the issue of interpreting the words, set apart as a refuge… interpreting 6(e), the proviso, in other words.

Otherwise set aside?

Yes, et cetera.

Are we just interpreting the words of that, or are there other alternative arguments that Alaska has made that we’d also have to decide, such as there isn’t enough authority anyway, or a whole set of other arguments that might be made?

Jeffrey P. Minear:

–As far as the exceptions that were filed in this case–

Yes.

Jeffrey P. Minear:

–the United States alone accepted the ANWR in a timely manner.

We raised only this question of 6(e), and that’s the only issue that you should decide.

In a later-filed brief, Alaska has raised questions with regard to the Master’s determination of the boundary of the–

Stephen G. Breyer:

So we don’t have to decide the boundary.

You didn’t except to that.

They’d have to have excepted to that.

Jeffrey P. Minear:

–They would have to have excepted–

Stephen G. Breyer:

And they haven’t produced other alternative bases for affirming except the Master’s interpretation OF 6(e) is right, and yours is wrong.

Jeffrey P. Minear:

–I believe that’s right, yes.

Ruth Bader Ginsburg:

Mr. Minear, there is a difference, isn’t there, because in the Special Master’s report there was a concern about whether there was authority to do this set-aside, and I think the Special Master indicated that there was no… or it was highly questionable whether there was any inherent authority.

As I take it in your exception, you are relying on the authority that you get from this 6(e) from Congress, is that–

Jeffrey P. Minear:

That is correct.

Our view here is that 6(e)… we have not… we don’t agree with the Master’s determination with respect to inherent authority.

In other words, suppose there was no 6(e) at all: Would the United States have corporately retained these lands simply through the action of its officers?

We did… the Master concluded that the United States would not, did not… would not have retained those lands, and questioned whether we had the authority to do so in that context.

We disagree with that, but we have not raised an exception to it.

We ask this Court to resolve this issue on the question of whether Congress intended for these lands to be set apart in accordance with the language that it used in the statute and in accordance with the regulation that was then in effect and the Secretary’s actions under–

William H. Rehnquist:

–So you don’t rely on any Midwest Oil theory that the executive by itself–

Jeffrey P. Minear:

–No, we’re not relying in this case–

–Yes.

Jeffrey P. Minear:

–on this issue on a Midwest Oil theory by itself, although we raised that issue in the lower court proceedings.

Stephen G. Breyer:

Can I ask you one factual question, if you know the answer.

When Congress passed 6(e), the applications had already been made but they hadn’t been approved.

Jeffrey P. Minear:

That is correct.

Stephen G. Breyer:

All right.

Now, were there other applications for setting aside as a wildlife refuge that had also been made, other than this one?

Jeffrey P. Minear:

I believe that there was at least one that I know of, and there was one involving the Aleutian Islands, and ultimately the Secretary decided not to go forward with that, that particular application.

Stephen G. Breyer:

So in… he didn’t go forward with it.

Since he didn’t go forward with the application, if statehood intervened, then the fact that he didn’t go forward with it wouldn’t matter.

The United States would still own it on your theory.

Is that–

Jeffrey P. Minear:

That is right.

That issue has never been litigated, though.

That is an issue that there was a question, I believe, that arose that prompted the Deputy Solicitor’s opinion that is… that some reference has been made to in 1959.

That Deputy Solicitor’s opinion suggests that the United States would not have ownership of the submerged lands.

–Ah.

Jeffrey P. Minear:

But it did not consider section 6(e)–

Stephen G. Breyer:

Yes, all right, but there… as far as factually is concerned, as far as you know there’s only this in front of us and this Aleutian Island one, and there weren’t a lot of other applications.

You don’t know of any others.

Jeffrey P. Minear:

–I can’t say that I know of any others.

I can’t speak with–

Stephen G. Breyer:

Okay.

Jeffrey P. Minear:

–assuredly on that, though.

I think it’s important to recognize what… the importance of our construction of section 6(e) here, that the Master… the Secretary quite reasonably relied on the plain language of section 6(e) in not acting on the application while it was pending.

I think that he reasonably concluded that the language of section 6(e) allowed him to set apart these lands and to defer action until after statehood, and in fact that’s what he ultimately did, and it would be, I think, most troubling to find that his actions… that his confidence in the plain language of the statute was misplaced.

But even if you had doubts about the clarity of the language, we think that you should recall and apply the familiar canon that grants of Federal lands are construed in favor of the United States, and nothing passes out of the United States’ hands except for–

Anthony M. Kennedy:

How does that square with the equal footing doctrine?

Jeffrey P. Minear:

–I think that certainly that the equal footing doctrine is a reflection of that policy, ultimately.

The equal footing doctrine had its origins in the notion that the United States should not be conveying land under the general land laws to private parties in a way that would harm the States’ ultimate acquisition of the lands.

Jeffrey P. Minear:

The notion was, the United States retained those lands, although it was holding it in trust for future States.

Now, when you cross the low water line into the territorial sea, and much of the area in ANWR is territorial sea, that same principle applies with even… with equal–

William H. Rehnquist:

But how about the expressly retained language in the Submerged Lands Act?

Does that have no application here?

Jeffrey P. Minear:

–No, I think it does, as… I think that as I was discussing with, I believe it was Justice Kennedy, that that does have application.

Our view is that we have satisfied the expressly retained language by section 6(e), and that–

Sandra Day O’Connor:

Well, what if… we might disagree with that, certainly, in view of what the Chief Justice addressed, which is the expressly retained language of the Submerged Lands Act.

That might be enough to overrule your exceptions.

Jeffrey P. Minear:

–Your Honor, I would make this point in response, and that is the Submerged Lands Act itself is a grant of Federal lands, and for that reason it ought to be construed with reference to the Federal Government’s, and the importance of protecting the Federal Government’s interest, so in reading the expressly retained language of the Submerged Lands Act–

Sandra Day O’Connor:

Except the whole purpose of the Submerged Lands Act was to give property to States that would… on becoming States that would defeat the Government’s former possible ownership–

Jeffrey P. Minear:

–But as this Court–

Sandra Day O’Connor:

–and the purpose was to convey.

Jeffrey P. Minear:

–But as this Court has said in Rodriguez and LTD, other cases, that no statute perceives its policy or its general purpose at all costs, that the very essence of legislative choice is the process of making exceptions and drawing lines, and we think that certain lines were drawn in the Submerged Lands Act, and that because this is a grant of Federal property it ought to be construed in favor of the Federal sovereign, and so–

David H. Souter:

But your argument seems to be that in order to do that, expressly doesn’t mean expressly.

Jeffrey P. Minear:

–Oh, I think that your–

David H. Souter:

Because you’re saying the presumption against grants should be used in construing the express requirement, and I don’t see really how you could do that in any way that would be helpful to the Government except to say, well, expressly really doesn’t mean expressly.

Jeffrey P. Minear:

–Oh, I think that we have a question even how far expressly goes in this context, as we saw with regard to the NPRA.

For instance, whether it’s express enough that we described the outer boundaries of the NPRA and the Arctic National Wildlife Refuge with a boundary that goes to… to include submerged lands.

We would view that as being an express retention.

As I understand some of the justices, they have some questions abut this, and this is an area where we think that it’s appropriate to give deference to Congress.

Remember that Congress ultimately–

David H. Souter:

We are a bit further removed from that in this instance.

Jeffrey P. Minear:

–Perhaps.

That’s–

David H. Souter:

And so expressly has to be watered down further, or at least watered down, I would suppose, if it’s going to cover this.

Certainly one way to defer to Congress is to read the language that it uses literally, and that expressly means expressly.

Jeffrey P. Minear:

–Yes, well, that’s… we have no problem with that, and the question simply becomes is this an express grant where we in fact defined the boundaries and indicated the tract that’s under consideration.

I think we do have to remember that our ultimate goal, our ultimate objective here, and the notion and concept of Federalism is to protect Congress’ interests here in terms of its determination of what should be done with these lands, and I think that’s something we ought not to lose sight of, that if you err in favor of the Federal Government retaining acquisition of these lands and you’re mistaken, these lands can always be conveyed back to the States by Congress.

On the other hand, if you err on the side of the State and the lands are conveyed to the State against the wishes of Congress, that is something that cannot be remedied.

William H. Rehnquist:

Well, no.

William H. Rehnquist:

Alaska can always convey them back to the Federal Government–

Jeffrey P. Minear:

I suppose–

William H. Rehnquist:

–just like Congress can convey them to Alaska.

Jeffrey P. Minear:

–I think it’s fair to say that the United States has been… that Congress has been quite sympathetic to Federal-State concerns with regard to submerged lands.

The Submerged Lands Act itself is a clear indication of that.

But I think that we can’t expect the State to have the same solicitude towards the Federal Government’s interest in those areas.

Antonin Scalia:

In the Submerged Lands Act, there were a lot of States who had interests at stake, and hence a critical mass to get something done.

But to… you know, to say, don’t worry, if you make a mistake Congress will give it to Alaska, I’m not sure that’s any more likely than that Alaska would give it to Congress.

Jeffrey P. Minear:

Oh, I think Congress does it quite routinely.

If we look under the Federal Land Policy Management Act and elsewhere, I mean, that’s… Congress quite routinely engages in land exchanges and turns lands over to the States.

But I also don’t want to lose track of what is the compelling interest that we have here with regard to coastal submerged lands involving the Arctic National Wildlife Refuge.

This is a unique and remarkable area, that Justice Douglas, who visited the area, described as the last American wilderness.

We think that Congress expressed its clear intent to retain national control of those lands for… in the national interest, and that it should retain the right to determine how they are going to be utilized.

Sandra Day O’Connor:

Well, but we have to focus on the fact that at least in this case we’re just talking about that strip from low tide out.

Jeffrey P. Minear:

But that is a very important–

Sandra Day O’Connor:

And so long as we don’t follow precisely the Master’s theory, which as I read it could take the uplands as well, whether or not they were submerged, but if you were to rely on the Submerged Lands Act provision to support what the Master did, at least on these lands beyond low tide, you wouldn’t be destroying the whole reserve.

Jeffrey P. Minear:

–Oh, I think it would have a dramatic effect on the reserve, as is pointed out in the amicus brief that was filed by this case by the environmental groups.

Those coastal lagoons are used by a migrating herd of caribou numbering over 150,000 that migrates from Canada to the Arctic National Wildlife Refuge and back every year.

Those lagoons are also central to the interests of polar bears and other species.

William H. Rehnquist:

Thank you, Mr. Minear.

Mr. Koester, you have 4 minutes remaining.

G. Thomas Koester:

Thank you, Chief Justice.

David H. Souter:

Mr. Koester, can you address the question of Alaska’s position with respect to the uplands and the wildlife–

G. Thomas Koester:

Certainly.

That was one of the things I wanted to begin with.

Alaska never had a right or an entitlement to any of the uplands.

The uplands have been withdrawn from private entry and sale by virtue of the application, and upon the creation of the wildlife refuge following statehood….

Sandra Day O’Connor:

–Well, Alaska changed its position on the petroleum reserve.

What’s to prevent some new person down the road from changing Alaska’s position on the refuge, depending on the theory the Court adopts?

G. Thomas Koester:

There is now a fully effectuated Federal withdrawal and reservation in place, and that’s the Arctic National Wildlife Refuge, and it’s not open to sale or entry or other kind of disposal.

Antonin Scalia:

Yes, but was it at the time of statehood?

I mean… I don’t understand that.

Isn’t that the crucial time?

Why isn’t–

G. Thomas Koester:

The regulations provided that the lands be withdrawn from the operation of disposal statutes, and we have no quarrel with that.

We have not contested it.

We do not believe there’s anything that–

David H. Souter:

–Can you represent that it is the position of Alaska that it will not, in fact, contest that?

G. Thomas Koester:

–I can represent that I will urge Alaska not to because I don’t believe the law would permit it.

I don’t believe a reasonable argument can be made.

Anthony M. Kennedy:

Well then, that withdrawal under 6(e) was sufficient for the uplands.

G. Thomas Koester:

The withdrawal was sufficient for the uplands in that they were withdrawn from private disposal statutes and remain so withdrawn until the refuge was created after statehood.

Anthony M. Kennedy:

Well, what is there in the withdrawal process that distinguished between the submerged lands and the uplands, just the Submerged Lands Act?

G. Thomas Koester:

The distinguishing feature is that section 6(e) of the Alaska Statehood Act only addresses fully established refuges on the date of statehood.

The purpose of 6(e) was not to retain Federal wildlife refuges in State ownership.

The purpose of section 6(e) was to transfer facilities used in wildlife management to the State.

The reservation that the United States relies on said in making those transfers the only lands we are not going to transfer are wildlife refuges, but it said nothing about transfers under the Submerged Lands Act, or the equal footing doctrine.

In other words, the proviso in section 6(e) was a very limited exception to the relatively limited 6(e) transfer of property to the State.

Stephen G. Breyer:

Have you urged… I understand that argument, and I’m very interested in knowing whether you have alternative theories, because I’m just trying to limit what it is I’d have to decide, and your argument I understand.

It’s whether that preliminary application was or was not within 6(e), and that’s what you’d seem to argue.

Now, there are alternative theories on this point that you’re arguing, or again, I figure once I’ve decided that one I don’t have to go further.

G. Thomas Koester:

The same two basic arguments that we made with respect to the petroleum reserve apply here.

First, there’s no clear intent to defeat Alaska’s title, and there is no express retention of any submerged lands in section 6(e).

Stephen G. Breyer:

No clear intent in what?

G. Thomas Koester:

No clear intent in section 6(e) to defeat–

Stephen G. Breyer:

In 6(e).

G. Thomas Koester:

–Alaska’s title to the submerged lands.

Stephen G. Breyer:

All right, so… but I can focus right on 6(e).

I don’t have to focus on some other thing.

G. Thomas Koester:

That’s the only provision that the United States argues defeated Alaska’s title, and there’s nothing there that does.

G. Thomas Koester:

If I may just make a last comment on the baselines issue, and that is, when the Court adopted the convention and applied it to California and Louisiana, it did not result in a contraction of those States’ territory.

Applying the arcs-of-circles method under the convention to Alaska would result in a contraction of the State’s territory.

The result we are seeking here is the same result the Court afforded Louisiana with respect to Chandeleur Sound, and Alabama and Mississippi with respect to Mississippi Sound.

We believe the principle of stare decisis has considerable force and perhaps additional significance when dealing with the rights of the States, because they are entitled to admission on an equal footing, and they’re entitled to equal treatment in this case.

Thank you.

William H. Rehnquist:

Thank you, Mr. Koester.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.