Utah Division of State Lands v. United States

PETITIONER:Utah Division of State Lands
RESPONDENT:United States
LOCATION:Craig, Colorado

DOCKET NO.: 85-1772
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 482 US 193 (1987)
ARGUED: Mar 23, 1987
DECIDED: Jun 08, 1987

ADVOCATES:
Dallin W. Jensen – on behalf of petitioner
Edwin S. Kneedler – on behalf of the respondent

Facts of the case

Question

Audio Transcription for Oral Argument – March 23, 1987 in Utah Division of State Lands v. United States

William H. Rehnquist:

We will hear arguments first this morning in No. 85-1772, Utah Division of Lands against the United States, et al.–

Mr. Jensen, you may proceed whenever you’re ready.

Dallin W. Jensen:

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

This case is here on a writ of certiorari to the Court of Appeals for the Tenth Circuit.

It is an equal footing doctrine case and involves the ownership of the bed of Utah Lake.

Utah Lake is the largest fresh water lake in the State of Utah; has a surface area of approximately 150 square miles; is located in Utah County, which is roughly 40 miles south of Salt Lake City.

Harry A. Blackmun:

Is Provo on the lake?

Dallin W. Jensen:

Yes, not right adjacent, but within a few miles, Your Honor.

Utah bases its claim of title on the equal footing doctrine.

One aspect of that doctrine is that states when they enter the Union receive the beds of the navigable bodies of water within the states.

These lands are held in trust by the United States pending statehood.

Thus, Utah asserts that when it entered the Union on January 4, 1896, it acquired the title to the bed.

The United States, on the other hand, while conceding navigability and admitting that ordinarily Utah would have received title at statehood, asserts that it, in fact, retained title when some seven years prior to statehood the bed was withdrawn and reserved as a reservoir site by the United Geologic Survey.

The Court below held for the United States and ruled that title did not pass to Utah at statehood.

The authority asserted for the 1889 withdrawal of the lake bed is an Act of Congress which was enacted in 1888.

That act authorized the United States Geologic Survey to investigate the arid region of the United States to determine the extent to which it could be redeemed by irrigation.

U.S.G.S. was authorized to select reservoir sites and segregate irrigable land in this arid region.

The Act provides that all lands selected as reservoir sites, canals, ditches, as well as the lands made susceptible of irrigation by such reservoirs, canals, or ditches were reserved as property of the United States and not subject to entry, settlement, or occupation.

It is Utah’s position that that act did not fall within the exception that this Court has recognized in order to defeat Utah’s title.

As recently as 1981 in Montana v. United States, this Court summarized the rules that govern the exception; held that the United States may sometimes convey the bed of a navigable body of water prior to statehood if it is necessary to perform an international obligation or to satisfy a public exigency.

However, that intention to convey must be clearly and plainly expressed.

Sandra Day O’Connor:

Mr. Jensen, do you think the public exigency requirement is anything more than a congressional policy?

Do you think that’s a constitutional requirement?

Dallin W. Jensen:

I do, Your Honor, in the sense that in order to defeat state title, an exigency must be… must exist.

I think that–

Sandra Day O’Connor:

Well, I would have thought, perhaps, the only thing the Constitution, itself, would require is a public purpose appropriate to the territory for the Federal Government to retain land as against the State.

Dallin W. Jensen:

–No.

Our position that it… that it requires more in order to defeat the constitutional entitlement that any appropriate public purpose is not enough, that it–

Sandra Day O’Connor:

Where do you find that in the Constitution, the public exigency requirement?

Dallin W. Jensen:

–It is not in the Constitution, itself.

Dallin W. Jensen:

It is in this Court’s analysis of the constitutional requirements for the exception.

In other words, in Montana, the Court noted that an Indian reservation, for example, may be an appropriate public purpose.

But unless it rises to the level of an exigency, that alone is not sufficient to defeat state title.

Sandra Day O’Connor:

Do you think there is any difference at all when the Federal Government wants to keep it for itself as opposed to conveying it to a third party?

Dallin W. Jensen:

Yes, I do, Your Honor.

The… again, the exception that has been recognized is for the conveyance in the situation where the United States no longer has title at the date of statehood, and this, then, keys off the trust that the United States is holding that land in trust for the States.

And if it has it at statehood, it cannot just simply say,

“We think we have a better use for it; we’re going to withhold it from you. “

Sandra Day O’Connor:

So, in your view, there is no mechanism by which the Federal Government could retain land that, otherwise, would pass to the States under the equal footing doctrine.

Dallin W. Jensen:

Not as we interpret this Court’s decisions, there must be a conveyance.

We take an additional position that even if the–

Sandra Day O’Connor:

Have we ever had an occasion to address the situation before, if when the Federal Government wants to keep something for itself?

Dallin W. Jensen:

–We think the Court has.

In Montana, in Choctaw v. Oklahoma, and in the Holt State Bank case, each of those cases involved land… navigable waters that were within the boundaries of an Indian reservation.

And in each of those cases the Court did not allow the analysis to stop at the reservation stage.

It moved on to see if there had been a conveyance.

And if there had not been the conveyance, then State title vested.

The only… in Holt State Bank and in Montana, the reservation clearly included the bed or clearly included the stream.

John Paul Stevens:

But General Jensen, all three of those cases involved the question of whether a conveyance to a third party was valid.

They didn’t involve this question.

There’s no third party involved here whereas there was in all three of those cases.

So I don’t think you’ve really responded to Justice O’Connor.

Dallin W. Jensen:

It certainly was not nearly as direct as it is here, Your Honor.

John Paul Stevens:

Well, it’s a different situation.

There it’s a question in each of those cases is whether there had been a conveyance.

The problem we’ve got here is when there is not claim of a conveyance to a third party, is there a mechanism by which the United States can reserve property for its own use that will, in effect, survive the creation of a new state, and which I don’t think we have addressed before, have we?

For example, is… say they wanted to keep property in a military reservation; could they do this, or whether the United States could do that: West Point and the Hudson River or something or… could they possibly have done that consistently with equal footing doctrine?

Dallin W. Jensen:

We… we think not, Your Honor.

John Paul Stevens:

You think not?

Dallin W. Jensen:

That they could not.

John Paul Stevens:

But there’s… you have no authority for that proposition?

Dallin W. Jensen:

No.

Beyond the analogies to the cases.

And you say… they’re not… they’re not a square fit.

But–

Antonin Scalia:

That’s a real problem for D.C. statehood then, isn’t it?

I mean, the United States could not reserve sovereignty over the Capitol if D.C. should become a State?

Why is that?

Well, all you’re talking about, Mr. Jensen, is the bed of navigable rivers, isn’t it?

Dallin W. Jensen:

–That’s right.

William H. Rehnquist:

Which… that’s what the equal footing doctrine–

Dallin W. Jensen:

Right.

William H. Rehnquist:

–applies to, not to lands–

Dallin W. Jensen:

That’s right.

William H. Rehnquist:

–In general.

Dallin W. Jensen:

We’re not… we’re not reaching other public lands.

We realize that the United States has those and can do with them as it–

John Paul Stevens:

But the question is whether, say they have a naval base an the Anacostia River or something like that, could the United States reserve title to the Anacostia River, if it created a State for the D.C., assuming the river is within the boundary of the District.

I don’t know whether it is or not.

Dallin W. Jensen:

–No.

We think it could not.

John Paul Stevens:

It could not?

Dallin W. Jensen:

It could not do that.

And in response to Justice Scalia’s case, no.

We think it we could avoid it because the Capitol is not on the bed of a navigable river.

Certainly as to the land within D.C., they could… the United States can do as it sees fit.

Antonin Scalia:

Would reserving sovereignty, as opposed to just title over the bed of a navigable river be any different from reserving sovereignty over any other chunk of land as far as the equal footing doctrine is concerned in principle.

I mean, if there’s some constitutional obstacle to the Government’s doing that, then why would–

Dallin W. Jensen:

Well–

Antonin Scalia:

–I don’t understand what’s magic about the bed of a river–

Dallin W. Jensen:

–Okay.

The–

Antonin Scalia:

–as opposed to the Capitol, for example.

Dallin W. Jensen:

–The Court in Montana stated that the reason, at least one reason, is that because the control of property underlying navigable waters is so strongly identified with sovereign power of government, then it will only be held that it will be conveyed for the exigency situation.

And I think that then goes back to the original concept that the thirteen Colonies acquired the beds of navigable streams as part of their entitlement under the Revolution.

John Paul Stevens:

But General Jensen, supposing we go back to the beginning and ask what, say Massachusetts joining the Union, and supposing one of the beds of the river had been conveyed by a monarch, an English monarch before when they set up the Colony, would he have had to do it for any special reason or maybe just gave it to a friend because he wanted to give him a little patronage?

Could he have taken that out of the–

Dallin W. Jensen:

The… as we understand the law there, those lands were held in trust for the public for public purposes: navigation, boating, fishing, and related type uses.

And that–

So, no, the Crown could not have just simply given it to his… could not have given it to his friend.

That was a… held in public trust.

John Paul Stevens:

–The lands in the Colonies were?

Dallin W. Jensen:

That’s right.

And so when the States succeeded to that title, they, likewise, not only got the land, but they got the responsibility under the public trust.

And the States are limited in what they can do with those lands.

They can do some things, but they’re still impressed with the public trust.

And that is why, I think, this Court has been very cautious in the situations where it has allowed the State title to be defeated because it is so identified with the sovereign power of State government.

Antonin Scalia:

But we have allowed it to be defeated in one instance?

Dallin W. Jensen:

Yes.

In–

Antonin Scalia:

And what makes that different?

Dallin W. Jensen:

–In the Choctaw case, the Court concluded that there had, in fact, been a conveyance for the benefit of a third party, namely the Indian tribe, not just a reservation, but the tribe ended up with a title interest in the property, and, likewise, concluded that in that circumstance, there was a exigency that needed to be satisfied.

Antonin Scalia:

Now why does that have anything to do with the… with the rationale for the constitutional prohibition that you just described?

I mean, given the reason for the constitutional prohibition, why should it make any difference whether you’ve conveyed it to a third party, or you want to keep it for the United States?

In fact, I would think you’re better off keeping it for the federal sovereign than giving it to some selfishly interested third party.

Dallin W. Jensen:

The… the reason is, again as we see it, simply goes back to the constitutional nature of the doctrine: that the State is entitled to it as part of its sovereignty; that the opportunity to defeat that should be very narrow and very limited.

And that is why the Court has characterized the ownership by the United States as “in trust”.

And if the United States is able within a fairly wide spectrum to say,

“Well, we don’t see why Utah needs the bed of this stream or this lake. “

“We think we have a better purpose for it. “

Dallin W. Jensen:

then the trust really loses its sanctity and, in the end, the equal footing doctrine… States that are coming in under the new and defined doctrine would be somewhat less than the States that are already in.

I mean, obviously, the State would prefer no exception.

But we realize there is one.

We believe here that the United States is arguing for a much more expanded exception because, not only do we have the problem with the ability to do it, we say that even if the Court were to allow this… were to allow the United States to do this conceptually, this reservation doesn’t satisfy the criteria that the Court has staked out.

In other words, the Act here, it was broad, general.

It referred to the arid region of the United States.

There was no reference to Utah Lake specifically, no reference to sovereign lands generally, certainly no conveyance in the Act and none authorized.

We submit that, in this situation, even if the Court were to consider expanding the rule, that this reservation falls way short of what should be required.

Byron R. White:

Well, the… there… the… there was designation of Utah Lake, wasn’t there?

Dallin W. Jensen:

Yes.

The… not in the Act.

Byron R. White:

No, I understand, but there was a designation?

Dallin W. Jensen:

Yes.

The United States Geologic Survey designated the Act, or designated the–

Byron R. White:

Well, what does the Act say, and when did the Act say that it would be reserved?

When there was a designation which was reported to Congress?

Dallin W. Jensen:

–The Act states that

“All lands made susceptible of irrigation by the reservoirs, and the reservoirs are hereby reserved from sale. “

Byron R. White:

When?

Dallin W. Jensen:

That’s… I assume that when the designation is made that it is then reserved.

Byron R. White:

Well, how do they make the designation?

Reporting it to Congress?

Dallin W. Jensen:

It doesn’t say.

Byron R. White:

Well, was there later congressional action?

Dallin W. Jensen:

The United States says the Congress later ratified it, but after the U.S.G.S. reserved it by the administrative act.

And we don’t deny that they specifically focused on Utah Lake.

Byron R. White:

How do you know they did it?

Dallin W. Jensen:

We don’t think they legally did it, but factually–

Byron R. White:

Well, is there some record that they did it?

Dallin W. Jensen:

–Yes, there is.

Byron R. White:

Have you ever seen it?

Dallin W. Jensen:

It’s in the Joint Appendix, yes.

It is a–

Byron R. White:

They just got it in their own files; is that it?

Dallin W. Jensen:

–No.

What they did is they… the U.S.G.S. Director sent a letter to the Department of Interior saying,

“I think Utah Lake would be a good reservoir site; I think you ought to withdraw it and reserve it. “

Byron R. White:

Well, what about the claimed later–

Dallin W. Jensen:

Okay.

Then what happened is U.S.G.S. filed its annual reports with Congress after that.

And the 1888 Act was repealed in 1890.

But the Repealer preserved the reservoir sites already withdrawn.

And the Respondents argue that by filing that report, those reports, and the fact that Congress, even though it repeated the Act, preserved the existing sites, that that is a congressional ratification that is sufficient to take them the rest of the way.

Byron R. White:

–And don’t you think that Congress knew which ones had been designated?

Dallin W. Jensen:

No.

Well, excuse me, Your Honor.

I… I think, again, for the… for the States’ constitutional entitlement to be defeated, that it requires more than just the filing of the reports with Congress and no further expression.

The 1890 Act did not say a word about Utah Lake.

It did not say a word about sovereign lands.

In fact, it–

Byron R. White:

This is your alternative argument because under your first argument, it wouldn’t make any difference if Congress had–

Dallin W. Jensen:

–No.

Well–

Byron R. White:

–It had specifically purported to reserve it?

Dallin W. Jensen:

–That’s right.

And, of course, we argue if they had… if the Respondents had no power in first instance to do it, the fact that they did it and reported it to Congress–

Byron R. White:

But you say there wasn’t really a reservation anyway?

Dallin W. Jensen:

–That’s right.

That that was not sufficient to–

Byron R. White:

Doesn’t make it clear enough?

Dallin W. Jensen:

–Doesn’t make it clear enough; that we’re entitled to more; that we ought to have… we ought to know when those sovereign entitlements are defeated; and that this three-step process the United States argues is not enough to do that.

And finally, although we’ve touched on the exigency, we feel and submit that there was no exigency involving Utah Lake.

The Lower Court found the facilitation of irrigation a public purpose motivated by a public exigency.

The Respondents argue that even less is required, that all that is necessary is a appropriate public purpose.

But again, as I have stated, this Court in Montana said that

“No. “

“You must have the exigency or you cannot defeat State title. “

The… we believe the legislative history of the 1888 Act demonstrates that the problem that Congress was addressing was a problem on the public domain; that the public land law such as Desert Land Act being abused by speculators who were acquiring these reservoir sites and irrigable lands and, thereby, thwarting the the settlement of the West as Congress had originally intended.

Byron R. White:

Well, did the Statehood Act indicate that the State wasn’t going to get any title… any title to lands that had been reserved by the Federal Government?

Dallin W. Jensen:

There is some language in Utah’s Enabling Act dealing with Federal reservations, Your Honor, that… there’s nothing in there that addresses–

Byron R. White:

Well, what does it say?

Dallin W. Jensen:

–I–

Byron R. White:

Well, that’s all right.

Dallin W. Jensen:

–I apologize.

I simply–

Sandra Day O’Connor:

Well, Counsel, doesn’t it say in the Utah Enabling Act that it excepts out other reservations of any character?

Isn’t that the language?

Dallin W. Jensen:

–That is essentially what it is, Your Honor.

Sandra Day O’Connor:

And the Government argues this is a reservation?

Dallin W. Jensen:

That is… that is true, but again, I think that addressed the typical type reservation, the Indian reservation, the military reservation.

It did not address an administrative withdrawal of the lake bed, that the… the taking of the lake bed was done by the simple administrative withdrawal.

And we don’t think it falls within the parameters of that… that document, the Enabling Act.

Further, with respect to the exigency, we submit that, as far as any of the public land law abuses that were occurring, Utah Lake could not have been part of that problem.

Utah Lake was not subject to settlement, entry, or occupation under the public land laws.

It was being held in trust for the State.

The United States had recognized as much when it segregated the Lake by survey of the seander at the Lake starting in 1856 and ending, essentially, in 1878, ten years prior to the passage of the 1888 Act.

Further, the bed was, or… was, and is water-covered.

Settlers could not simply have gotten in to settle it, enter it, or occupy it.

And finally, if it is true that the purpose of the 1888 Act was to facilitate irrigation, water development in the West, Utah Lake was already fulfilling–

John Paul Stevens:

May I ask you another question, Mr. Jensen?

John Paul Stevens:

Supposing that before Utah became a State, the United States realized there would be vast mineral resources under this lake or other riverbeds and decided to lease them out to private developers or convey them… to sell them to private developers, would it be your position that… and there’s no public exigency; they just thought it would be a good way to make some money… would that conveyance be valid or invalid?

Dallin W. Jensen:

–No, not in our view, Your Honor.

John Paul Stevens:

They could not have done that?

Dallin W. Jensen:

They could not have done that because of the trust.

Thank you.

William H. Rehnquist:

Thank you, Mr. Jensen.

We’ll hear now from you, Mr. Kneedler.

Edwin S. Kneedler:

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

Utah Lake was formally selected as a reservoir site in 1889 by John Wesley Powell who was then the Director of the United States Geological Survey.

And that selection was made to the… pursuant to the Sundry Appropriations Act of 1888, which Mr. Jensen has discussed, which responded to a perception by Congress that there was a serious threat pending to the future irrigation of the lands in the arid region.

The record is this case unequivocally establishes that the Geological Survey selection of Utah Lake included the lake bed.

The Tenth Annual Report of the Geological Survey, which was formally transmitted to Congress, said that the reservation included the lands covered or overflowed by the lake as well as those bordering on it.

And the Eleventh Annual Report referred to the selection as including not only the bed, but the lowlands around it, and described that selection by sections that specifically included the bed of the lake.

Antonin Scalia:

You say that this was responding to… to the concern that the irrigation needs of the area would not be met.

That concern was not that water from the lake was going to be used, was it?

That concern was simply that dry land which was available for reservoirs was being bought up by land speculators?

Edwin S. Kneedler:

Well, there was… the general concern was that there would… that there would be impediments to development of reservoir sites for reclamation.

Those included–

Antonin Scalia:

Because of the homestead laws that allowed people to acquire… to acquire land; right?

Edwin S. Kneedler:

–Well, not… not necessarily, not necessarily.

There could–

For instance, in this particular case, although that… that was… that was certainly part of it.

But it this particular case, it… it soon became apparent immediately after this lake bed was selected that rather than raising the lake which would be typically true of the natural reservoir, the best thing to do would be to lower it because so much water was being lost to evaporation.

So the lowering of the lake would… would expose some of the lake bed in this case, and that would invite settlers onto the exposed lake bed which, of course, could implicate the very purposes of… of the specific purpose that you’re mentioning, under the preventing of monopolization or impediments to the development by having private entries on the land.

Antonin Scalia:

Now, wait.

I don’t understand that.

Once you say you want to lower the lake bed, then you’re saying you don’t need the lake bed as a reservoir.

Edwin S. Kneedler:

No, but–

Antonin Scalia:

So why do you care if people settle it?

Edwin S. Kneedler:

–Well, we describe in our… in our brief in this case that even though the lake was to be lowered for its average or normal level, there would be flood periods during which the level of the lake would rise, not only to its average level, but would rise above that.

Edwin S. Kneedler:

And if that was a part of the normal operation of the reservoir for irrigation purposes, it would flood out some of the lands on which settlers had entered.

That would require, perhaps, the payment of compensation to the settlers who had moved onto the land and established farms there, just like the maintenance of any other reservoir system that periodically floods a landowner’s property would create problems for the Government and require the payment of compensation.

And it was avoiding… avoiding the payment of compensation was one of the specific purposes, not just monopolization, but preventing–

William H. Rehnquist:

But the lowering of the level of the lake and raising were to be accomplished by dams?

Edwin S. Kneedler:

–Yes.

There was a proposal to… partly–

Subsequently, its development… the plans that provided for diking off portions of Utah Lake, Provo Bay north of Utah and Goshen Bay in the southern portion of the lake, would be diked off so that that land would be essentially drained which, again, would expose both of those areas to possible settlement and monopolization and the other impediments that applied anywhere else in the Reclamation Project.

Antonin Scalia:

Would the lake ever be completely empty?

Edwin S. Kneedler:

No, the lake would never be–

Antonin Scalia:

So you wouldn’t have had to reserve the whole thing for that purpose.

Edwin S. Kneedler:

–Well, but it–

Antonin Scalia:

–You’d just, at least,–

Edwin S. Kneedler:

–Well, at the time… at the time that the… at the time the Act was passed, Congress was acting against an urgent situation.

It didn’t know the details at every particular reservoir site.

Mr. Jensen, I think, is not correct to say that this was an administrative withdrawal.

Congress, itself, mandated the withdrawal in the Act itself.

Congress said all suitable sites for reservoirs are hereby henceforth reserved.

And that was interpreted by the Attorney General to mean as of the date of passage.

That suggests that Congress perceived a serious problem that if it postponed the study of each individual reservoir to find out precisely how much land was needed, it could all be gone.

So Congress thought it was imperative to reserve the land now and not wait for the delay of possible administrative–

William H. Rehnquist:

–But no particular reservoir site was withdrawn by the Act of Congress.

It remained for… to be designated by the Secretary.

Edwin S. Kneedler:

–Well, Congress could not practicably identify each potential reservoir site in the West, and, therefore, if relied on the Geological Survey to identify the sites for it.

Antonin Scalia:

What about… what about settlers who occupied some later designated sites after the Statute was passed but before the designation?

Edwin S. Kneedler:

Those entries were invalid, and that was the interpretation of the Act given by the Attorney General, given by the implementing instructions of the… of the General Land Office.

And the memorandum explaining those instructions is included in the debates on the 1890 Act.

Congress was aware of that interpretation of the 1890 Act.

The purpose was to put everyone on notice as of the date of the passage to the Act that if you going to enter onto an area that might be used for a reservoir that you’re being… it’s subject to being overridden by the selection of the area for a reservoir site.

I would also–

William H. Rehnquist:

Is it your position, Mr. Kneedler, that the Government doesn’t need any particular reason to reserve land in the territory, that if it wants to reserve it, that’s… that’s its privilege?

Edwin S. Kneedler:

–We have not gone to that extent.

What we do believe is that… that, at the most, all that would be necessary is… is this test to which Justice O’Connor just referred, that there has… that there would be… as long as the reservation is for a public purpose appropriate to the purposes for which the United States holds the territory, which is the test the Court described in Shively versus Bowlby and is repeated in the… in the, I think, everyone of its equal footing doctrine cases since then.

William H. Rehnquist:

Well, supposing that when Minnesota was admitted to the Union, the United States decided that it probably had some good use for the bed of the Mississippi River as it flowed through Minnesota, and so it reserved that bed.

Now, so long as there is a related government purpose, is that a good reservation?

Edwin S. Kneedler:

Well, it would… it would… I think it… there has to be a specific federal purpose for it.

I think what Congress cannot do is say, We… just a bare desire to defeat the passage of the land to the State is not sufficient.

But the… but the origins of the equal footing doctrine suggest this distinction.

What… what the Court was saying in Pollard’s Lessee, which is the case in which the Court first announced this, is that what the United States has held to hold in trust for the States is the municipal sovereignty over the lands, not the federal sovereignty.

So when a new State is created, what passes to the State is the municipal sovereignty, the ability to deal with that land–

William H. Rehnquist:

Well–

Edwin S. Kneedler:

–as a State.

William H. Rehnquist:

–Now Pollard’s Lessee says a lot more than that.

Let me read you a section from it that says:

“Then to Alabama belong the navigable waters and soils under them in controversy in this case, subject to rights surrendered by the Constitution to the United States; and no compact that might be made between her and the United States could diminish or enlarge these rights. “

That’s not just talking about sovereignty.

That’s talking about land–

Edwin S. Kneedler:

Yes.

No, I understand that, but… but title… the title to the land is an aspect of the… of the State sovereignty because of the public trust doctrine that Mr. Jensen referred to.

The… the use devoting navigable waters to public purposes is an essential aspect of the public trust for the lands.

And that is deemed to be so central that the lands are not ordinarily held to have been conveyed to private parties.

And the United States is held not to have to be able to act like a State in a State, that that’s up to the State to decide how those lands shall be used to the extent that that’s within the power of the State to do so.

But there is in Pollard’s Lessee, itself, the Court made clear that all of these States’ right acquired under the equal footing doctrine are subordinate in certain or… in appropriate circumstances to where Congress acts pursuant to its enumerated powers under the… under the Constitution.

And one of those enumerated powers is the power to acquire property for a federal purpose.

That can be done in the State, not just in a territory.

I think this is an important–

William H. Rehnquist:

–But it could be… it’s done by condemnation.

Edwin S. Kneedler:

–It’s done… it’s done by condemnation.

All that is necessary in those circumstances is for there to be a public use to which the property will be devoted.

And this Court in Hawaii Housing Authority said the public use standard is essentially co-terminous with the Government’s police powers.

And as long as the acquisition of the property is necessary to furnish further an appropriate governmental purpose, that that satisfies the public use requirement.

William H. Rehnquist:

So the United States could then, if it felt it had a use for the land under the Mississippi River in Minnesota, reserve that at the time of statehood?

Edwin S. Kneedler:

Yes.

For a federal purpose, not simply… not simply to keep bare title and defeat the State’s title.

It has to be for a specific federal governmental purpose pursuant to Congress’ enumerated powers.

William H. Rehnquist:

But if it wants to grow hydroponic vegetables in the Mississippi River, it can do that?

Edwin S. Kneedler:

Well, yes, assuming that what… assuming that that or anything else would be within the scope of Congress’s… Congress’s enumerated powers.

And I… I’d like to point out that in… in Pollard’s Lessee, itself, at two places, on page 221 and 224, the Court made clear that it was referring to lands that were not reserved or appropriated to another purpose.

The lands that were being discussed in that case were unappropriated lands, the public domain, the sort of lands that the… that the Court held Congress was holding… the United States was holding in trust to turn over to the State as part of that State’s receipt of sovereignty.

But it was not… it was not discussing lands that had been previously reserved or appropriated for other purposes.

John Paul Stevens:

Mr. Kneedler, how do you distinguish an Indian reservation, reservation of lands to be used by Indians for federal purposes?

Edwin S. Kneedler:

Well, that is something of a hybrid.

It can be viewed as a conveyance of the… of the beneficial titles.

But it’s also a reservation in the normal sense–

John Paul Stevens:

You reserve for the Indian uses just as you reserved in this case for reservoir uses–

Edwin S. Kneedler:

–That’s right.

John Paul Stevens:

–and in one case, you would concede that that reservation wouldn’t defeat the State’s title since Montana holds that, I guess.

Edwin S. Kneedler:

No, no.

Montana… what Montana… all Montana holds is that there was… that the document setting aside the land did not specifically refer to the… to the riverbed.

John Paul Stevens:

That there was no conveyance to the Indians.

But it’s certainly clear there was an Indian reservation.

Edwin S. Kneedler:

But there was never a reservation–

John Paul Stevens:

And nevertheless, the title was in the State.

Why wasn’t the title in the Federal Government–

Edwin S. Kneedler:

–The way the Court described it in Montana the same way that it described it in Holt State Bank, that there was a reservation in a general sort of way–

John Paul Stevens:

–Right.

Edwin S. Kneedler:

–to allow the Indians to continue to occupy the land that they had always occupied.

There was no specific mention, unlike here, of the bed of the navigable water.

And what the… what the Court held in Montana is what… what the Court relied upon was the absence of a specific designation of the riverbed as withholding the… or as reserving that bed to the United States in trust for the tribe.

It wasn’t just that there wasn’t a conveyance.

The vehicle of conveyance was the reservation.

Edwin S. Kneedler:

So there was not a specific reservation of the lake bed.

John Paul Stevens:

The key to your case is a specific identification of the bed of the lake as having been reserved?

Edwin S. Kneedler:

Yes.

And that is exactly what the Court said, I think, in Montana: That it is necessary for it to appear in clear and special words, the intent has to be clear.

But where the intent is clear, and here it is, then… then this is just like the Choctaw case.

Antonin Scalia:

Well, it’s clear only after John Wesley Powell’s designation; right?

You know, you just spread a map of the western United States in front of me and the 1888 Statute, I wouldn’t have picked out Utah Lake, would you?

Edwin S. Kneedler:

Well, as… as a suitable… as a suitable reservoir site, I may… I may well have.

It was well known at the time that natural reservoirs were… were… would be one of the important sources of irrigation under the Reclamation Project.

Antonin Scalia:

Well, let’s say I find it less than clear.

Would… does it become clear with John Wesley Powell’s designation the next year?

Edwin S. Kneedler:

That is–

Antonin Scalia:

Unless you’re absolutely… unless there’s been a court test, and you know that he hasn’t gone beyond the… what are appropriate reservoir sites?

Edwin S. Kneedler:

–Well, the… this… this is a standard problem of delegation is, is John Wesley Powell’s selection within the scope of the statutory–

Antonin Scalia:

Well, that’s right.

And I’m saying when… when the specification that you acknowledge must be made is made by delegated authority, can it ever clear enough to overcome the equal footing doctrine?

Well, I don’t think the Constitution requires that Congress specify in an act, itself, rather that addressing a general category in delegating it to the… to executive officials as it does any other responsibility to make appropriate reservations.

This is… this is typically necessary with respect to the administration of public lands.

Congress cannot act like the landlord with respect to decisions about all the land that is in federal ownership.

It has to turn this over to the expert agencies.

And in this case, it was… it was turning it over to the person it knew to be the premier expert with respect to irrigation of arid land.

Well, I guess the question is whether something more should be required if it’s to defeat the State’s acquisition of this title which normally is expected to transfer to the State at statehood.

Edwin S. Kneedler:

–Do you mean more in the nature of specificity?

Sandra Day O’Connor:

Yes.

Edwin S. Kneedler:

Well, here, I think–

Sandra Day O’Connor:

The Congress, itself, has to take a look at it and say,

“Yes, we really do mean to keep title in ourselves to this property. “

Edwin S. Kneedler:

–Well–

Sandra Day O’Connor:

It, otherwise, would go to the State.

Edwin S. Kneedler:

–Well, assuming that that is necessary, I think that is met here by virtue of the subsequent actions.

Edwin S. Kneedler:

First… first, I’d like to point out though that prior… prior to the passage of the 1888 Act, John Wesley Powell had prepared his famous report on the… on the lands of the arid region in which he specifically proposed Utah Lake as a reservoir site and suggested, for the first time, that reservoir sites be selected and set aside to prevent inhibitions to development.

So when Congress passed the 1888 Act which was drafted by John Wesley Powell, it had every reason to expect that he was going to select Utah Lake, and, in fact, he did it right away.

So this is about as close a nexus with respect to the selection of–

Sandra Day O’Connor:

How many other sites were selected while that act was in effect, and in how many States?

Edwin S. Kneedler:

–The Interior Department does not have complete figures on this.

The… the… what happened is the selections were filed in the Land Offices in the various States, and there is… there is, as far as I’ve been able to ascertain, no comprehensive list of how many were selected.

As of now, I am informed that they have records of approximately 40 selections.

But we don’t know whether any of them involve lands under navigable waters.

Sandra Day O’Connor:

And in how many States?

Edwin S. Kneedler:

I think it was five.

Several of those were clearly in States admitted to the Union before 1888: California… there were a number in California; there were a number in Colorado.

So the category of cases affected by the precise issue in this case under this Act is quite small.

And we don’t know of… now of another case.

But I would like to continue with the statutory–

Antonin Scalia:

What about those other designations that we don’t know even about that are floating out there in Land Offices somewhere?

Were they designated with sufficient specificity, too, by the 1888 Act?

Edwin S. Kneedler:

–They were reserved if… whatever was designated–

Antonin Scalia:

Suppose… suppose we have another case that comes up involving one of those other sites that you don’t even know about yet that’s out there in some Land Office; has that been designated specifically enough by Congress to… to overcome the usual application of the… the equal footing doctrine?

Edwin S. Kneedler:

–Well, the primary source for what was designated, and there could have been others, but if we confine it to the category that… that the Geological Survey selected and formally reported to Congress, that is a matter of public record, not just in the Land Office.

The Geological Survey reported to Congress what land had been selected by section by section in the case of Utah Lake.

The Congress then in 1890 held extensive hearings, oversight hearings, on the selection of irrigation sites.

And as we point out in our brief, there were sessions in Utah at which the use of Utah Lake as a reservoir site was specifically discussed.

And we point out one of them in footnote 16 of our brief at which the Chairman of the Senate Committee responsible for those hearings specifically referred to the reservation of Utah Lake and specifically did so with addressing the problems of the 1888 Act.

It was pointed out that… it was pointed during these hearings before Congress, before the 1890 Act was passed, that the level of the lake was receding, that people were moving onto the land; and that this had created some problems.

And the Chairman says:

“Within the last year, there has been a reservation of any land needed for that purpose. “

“And the Government will survey such land and set it apart; otherwise, there will not be a disposition to crowd upon and settle on the land. “

He was responding specifically to that problem in saying,

“We’ve taken care of that by reserving that. “

But also… we also cite in our brief a passage during the floor debates on the 1890 Act when Senator… this is at page 9146 of 21 Congressional Record… Senator Sanders said:

Edwin S. Kneedler:

“I hold it my hand the Tenth Annual Report of the United States Geological Survey to the Secretary of the Interior for 1888 and 1889, which contains, I believe, all of the information of a public character with reference to reservoir and canal sites heretofore selected or surveyed. “

That Tenth Annual Report includes the bed of Utah Lake.

So this is an… and then Congress passed the 1890 Act and said:

“Any reservoir sites heretofore selected are retained as property of the United States until otherwise provided by law. “

Byron R. White:

Well then, if there some sites that are unknown, it was selections after that Report was filed?

Edwin S. Kneedler:

There might have been some.

As far as we know, the Geological Survey reported to Congress all of the selections during any particular year.

Byron R. White:

Up until that date?

Edwin S. Kneedler:

Up until 1890.

So at least, with respect to reservoir sites prior to 1890, in response–

Byron R. White:

When was the Act repealed?

Edwin S. Kneedler:

–The Act… the authorization for selection of arid lands was repealed in 1890.

There was still authority to select reservoir sites, as I read the 1890 Act because it does refer to reservoir sites “hereafter selected”.

But with respect to the ones previously selected, it’s clear that Congress had the information before it and ratified those.

So although Congress didn’t say Utah Lake in the Statute, it did say “Reservoir sites heretofore selected”.

It knew specifically that Utah Lake was such a site.

And it held several days of hearings in Salt Lake City with witnesses who drew irrigation water from Utah Lake, and it knew quite well what the situation was there.

And Congress then revisited the 1888 Act in 1891 and 1897 as we explain in our brief, again tailoring the operation of that Act to make sure that the reservoir sites selected did not overreach.

But it never rescinded by law, as it was required, these reservation sites.

John Paul Stevens:

Mr. Kneedler, may we ask you.

Assume that we agree with you on the specificity that they clearly intended to reserve it for this particular purpose, what… how would the purpose, the federal purpose be compromised or deviated by adopting the fundamental argument your opponent makes that it just simply passes to the State, and if the Government, the Federal Government needs it back, they’ve got to condemn it?

How would that have hurt the federal purpose underlying this whole program?

Edwin S. Kneedler:

Well, that was one of the specific purposes underlying the 1888 Act, was to put the Federal Government in a position where it was going to have to condemn land in order to carry out the Reclamation Project.

What it was afraid of was that settlers would move on there, and in order… if you had to flood the land, you’d have to buy out the settler, or if you had to put in a canal or a dam.

John Paul Stevens:

Well, all that goes to that’s why you needed the reservation and needed to be able… needed to be able to keep settlers off.

But I don’t understand how that really responds to the constitutional argument your opponent makes that that could still all be accomplished by having the title to the bed of lake vested in the State at the time that it became a State.

Edwin S. Kneedler:

Well, in this case, it’s important to distinguish the powers of the United States after statehood and prior to statehood.

John Paul Stevens:

I understand.

Edwin S. Kneedler:

But there’s no doubt that after statehood, it could condemn the land if it had passed to the State.

Here we’re talking about whether the land passed to the State at all, and–

John Paul Stevens:

Correct.

Edwin S. Kneedler:

–at the time that this–

John Paul Stevens:

And what I’m asking is, supposing it did pass to the State, how would that defeat the program that motivated the reservation in the first place?

Edwin S. Kneedler:

–Well, Congress could acquire the land.

But again, one of the purposes of the reservation was to avoid having to pay for the land.

John Paul Stevens:

Well, but why is it different from an Indian reservation?

I’m asking in terms of the equal footing.

Why really do you need a different analysis than in the Indian reservation case just because they’re more specific here?

Why can’t the Federal Government, even though the title to the Montana River, or whatever it is, is in the State, it still, the Federal Government can still control all the… what happens in the Indian reservation, why couldn’t… can’t they still control what happens in Utah Lake even if the State owns the bed of the lake?

That’s what I don’t quite follow.

Edwin S. Kneedler:

They might be able… they might be able to build a project.

The Congress made a judgment that it wanted to retain in federal ownership and control these projects.

It didn’t know–

John Paul Stevens:

Well, they wanted to prevent other people… well, I’m sorry.

Edwin S. Kneedler:

–It didn’t know quite how it was going to develop these lands.

It didn’t know if it was going to develop… if Congress was going to provide for the United States to develop them, which is, in fact, what happened under the Reclamation Act of 1902, or whether it would open them to private… private development.

And in the 1897 Act, Congress overturned… that we discuss in our brief… Congress overturned an administrative interpretation and opened up all of these reservoir sites to private individuals and corporations.

And, at the same time, said a State can come in and occupy one of those sites, too.

John Paul Stevens:

Maybe… maybe I’m very dense here, but I still don’t understand why if they want to keep private development out of the lake, why can’t they do that, notwithstanding the fact that the title to the bed of the lake might be in the State?

I don’t understand why there’s–

Edwin S. Kneedler:

Private development… there could be two problems.

One of them, if the Federal Government needed to acquire the land from the State, it would have to pay the State.

John Paul Stevens:

–But they don’t… all they want to do is do is prevent private owners from developing the land, and their power over the navigable lake is sufficient to enable them to do that even though the State owns the bed of the lake.

Edwin S. Kneedler:

Well, it may not have been so clear.

First of all, the State could have granted–

John Paul Stevens:

Well, it’s clear now, isn’t it?

Edwin S. Kneedler:

–I think it is… I think it is clear now under the Marsh case that was cited in the… that we cite in our brief where the Tenth Circuit sustained the power of the Corps of Engineers to regulate dredge and fill operations.

But there could be constitutional problems there, too.

If the State conveyed away the bed of the lake to a private person, which it could do if it got title under the equal footing doctrine, you would then have a private person who owns land in the bed of the lake, if the lake bed was exposed, we would–

John Paul Stevens:

Just like the conveying away the bed of a river on an Indian reservation.

John Paul Stevens:

I would think the… the party acquiring title would realize it’s an unusual piece of property as to which there would be some federal interest.

Edwin S. Kneedler:

–It may be.

But in this particular case, it may not be so unusual if the lake bed receded and the State-owned land was exposed.

The State could turn it over to private parties.

It may not be subject to entry under the federal laws, but the State could turn it over to private parties who could then enter upon it and create problems.

I should point out that disputes over the ownership of bordering lands were… was also a serious problem at Utah Lake.

John Wesley Powell testified at these hearings in 1890, and we cited in a footnote in our brief in the Eleventh Annual Report.

He said that there had been a dispute between those who wanted to raise the lake and lower the lake because of the people who had moved onto the boundary area.

And the Mormon Church moved in and settled the dispute, worked out the dispute between the two groups of landowners.

So here we have a… already previous experience with respect to the problems that can be created by private ownership of land in an area where the water recedes and then is raised and is lowered.

And that’s precisely the sort of inhibitions to development that Congress was concerned about in the 1888 Act.

Sandra Day O’Connor:

Well, Mr. Kneedler, in most instances, wouldn’t the Federal Government in any event retain its navigation servitude?

Edwin S. Kneedler:

It would retain its navigation servitude, but I… but that… it’s not clear how far that would go with respect to the operation of a reclamation project.

And it’s also… this is also an entirely intrastate navigable body of water.

It’s not clear that Congress’s navigational servitude would give it the authority in this… in this situation.

But I think the point to recognize is that at the time Congress decided to first freeze property in federal ownership and retain it there for development and irrigation of the arid west, it had complete sovereignty–

William H. Rehnquist:

Your suggestion is that for the Government’s navigational servitude to apply, the navigable water has to move from one State to another?

Edwin S. Kneedler:

–Well, it depends.

It… It… I think I’m… I… I take that back.

I think I’m thinking of Constructions of the Rivers and Harbors Act rather than the… rather than the constitutional limitation.

Under the commerce power, Congress could control the water, but it would not necessarily give it the authority to control the land.

And that is… that was what Congress was focusing on when it reserved the reservoir sites in this situation.

Going back to the point of Congress’s power to do this, because I think the statutory authorization is clear, we submit it would be anomalous for Congress to be able to provide for the disposition of land underlying navigable waters to a private party as the States concedes Congress can do and as the Court held in the Choctaw case and has said in Shively versus Bowlby and other cases.

In that situation… and not to be able to retain the land in public ownership because when land is granted to a public party, it is separated from sovereignty in the words of this Court.

And both the State and the Federal Government lose whatever power they have to control the use of that land to the extent that power derives from ownership of the bed.

By contrast where the land is retained in federal ownership, the Federal Government can act both with reference to the special federal purpose that gave rise to the reservation in the first place and protect the interest in the use of the navigable waters in the same way as a public trust.

So the reasons for presuming against a conveyance to a private party of land underlying navigable waters apply with far less force in the situation where Congress has reserved the lands to a public use.

Congress can condemn lands in a state.

But at the time it acquired this land, there wasn’t a state.

It owned the property.

Edwin S. Kneedler:

The United States owned the property.

It could acquire it.

It was essentially acquiring it from itself.

It was disposing of the land to the extent it owned it as a public domain and acquiring it.

It doesn’t have to condemn land it already owns.

It doesn’t have to pay for lands it already owns.

And so it acquired it at that time as federal property.

And because it was federal property under the supremacy clause and as reflected in Section 6 of the Utah Enabling Act that Justice O’Connor referred to, that land was reserved in federal ownership and was not among the corpus of unappropriated lands on which the equal footing doctrine operates.

Equal footing–

Byron R. White:

Mr. Kneedler, I suppose… I suppose that normally when there’s a reservation from the public domain, it really just is withdrawing it from settlement or development or withdraws it from the operation of the Homestead Act–

Edwin S. Kneedler:

–Well, there can be… there can be withdrawals; there can be reservations.

Sometimes a withdrawal as in Midwest Oil may just be preventing someone from settling upon it.

But you can also have a reservation devoted toward a particular federal purpose.

Byron R. White:

–Well, how do we know… how do we know that the reservation that was… that Congress authorized here was meant to be a reservation as against the equal footing doctrine… as against State claims, to withdraw it from the operation of the equal footing doctrine–

Edwin S. Kneedler:

Because–

Byron R. White:

–Rather than just what the normal meaning of reservation would be?

Edwin S. Kneedler:

–As I was explaining to Justice Stevens, I think the purposes of the Act require that it be applied to the… it’s a lot like Block versus North Dakota in this sense.

The purposes of the comprehensive Act require that it be applied to potential claims by the State and people claiming through the State.

Byron R. White:

So State ownership of the lake bottom might be inconsistent with this development–

Edwin S. Kneedler:

Yes.

Byron R. White:

–as a reclamation project?

Edwin S. Kneedler:

That’s correct.

And the one guide we do know in the Utah Enabling Act, Congress made clear that lands that were included within any reservation of whatever nature, which would include these reservations, were not subject to the grants of school sections and indemnity selections under the Utah Enabling Act.

And the equal footing transfer of unappropriated lands to a state is a grant; it’s a constitutional grant.

But it… but so we think it’s consistent with the relationship of the States upon entry into the Union that what they succeed to are unappropriated lands under the… under the navigable waters, but they don’t succeed to lands that have been taken into federal ownership any more than they would the United States Capital Building that had been taken into federal ownership.

Thank you.

William H. Rehnquist:

Thank you, Mr. Kneedler.

Mr. Jensen, do you have anything more?

Dallin W. Jensen:

A few brief remarks, Your Honor.

With respect to the federal concern about potential settlers crowding down around the edge of Utah Lake, we do not think that was a problem.

Dallin W. Jensen:

The lake bed was being held in trust.

And, in fact, it could not have been… was not opened to settlement and entry under the public land laws.

And ten years prior to the 1888 Act, the United States recognized the navigability of the lake.

It surveyed it, segregated it from the public domain, so that all of the sales of property were down to the surveyed meander line.

And I think that simply is not a justifiable argument that the settlers would encroach upon the lake bed.

Byron R. White:

Are you saying the… it was already being reserved?

Dallin W. Jensen:

Well, yes.

It had already been–

Byron R. White:

And this reservation couldn’t possibly have applied to Utah Lake?

Dallin W. Jensen:

–That’s right.

Byron R. White:

And so it’s no reservation at all?

Dallin W. Jensen:

Well, that’s right as it purports to withdraw the bed, or reserve the bed to the Federal Government.

It had already been reserved for Utah.

Antonin Scalia:

I don’t understand that.

Run that by again, will you?

Dallin W. Jensen:

Okay.

First of all, it’s reserved by the public trust.

In other words, they hold it for the State as part of the public trust obligation.

Now, we take the position they wouldn’t have had to survey it in order to satisfy and make sure we got it.

But what we say is that one of the things the Federal Government does, and did at that time throughout the West, is when they… when there was these navigable bodies of water, in order to preserve them, they were surveyed.

That survey is a line that approximates the ordinary high-water mark which is the boundary of the bed and the upland owner.

And then when the Federal Government sells the unoccupied public domain, those sales come down to that surveyed meander line, so that the person that buys, he gets a metes and bounds description, but he doesn’t get anything below that.

And so what we say is that by surveying it ten years prior to the 1888 Act, they had already recognized its navigability, its… that Utah was entitled to it, and they defined the boundaries.

Byron R. White:

But then the United States says that after that, it was… it was taken out of the trust essentially by the… by the United States itself.

Dallin W. Jensen:

That’s right.

And… but–

Antonin Scalia:

Mr. Jensen, do you take the position that the State could convey good title to land within the boundary?

Dallin W. Jensen:

–To a limited extent.

And that would be that our obligation is to maintain the bed in such a way that the public trust is not impaired.

We believe that we could–

Antonin Scalia:

Could you sell it to somebody who wanted to dig a mine on it specifically?

Dallin W. Jensen:

–I question that.

We think that we could–

Byron R. White:

Well, in some States… some States have given to the landowners on each side of the… of the navigable river title to the riverbed that they got under the equal footing doctrine.

Dallin W. Jensen:

–And some of them are being sued over it.

We think we can issue permits, say for a dock or a wharf, that sort of thing–

Byron R. White:

Or oil lease?

Dallin W. Jensen:

–and if it doesn’t impair the public trust, but we could not just turn around and sell the bed of Utah Lake willy-nilly just to, you know, refurbish the State coffers.

We do not believe that we can do that.

John Paul Stevens:

Because of the federal reservation?

Dallin W. Jensen:

No, because of the… that the State holds it in trust, not because of–

John Paul Stevens:

Oh, I see, you’re… because of your own trust obligation?

Dallin W. Jensen:

–Our own trust, and maybe we’ve made that a little confusing.

But the State holds it in trust, once we get it.

It is not like the rest of our land; it is a special category.

And it is impressed with the public trust.

Just a word about Montana as it relates to the specificity that has been talked about here and the 1888 Act.

We submit that if the United States could not defeat Montana’s title under those facts, that the 1888 Act should not be allowed to defeat Utah’s here.

My time is up.

William H. Rehnquist:

Thank you, Mr. Jensen.

The case is submitted.