SUPREME COURT OF THE UNITED STATES

No. 84, Orig.

UNITED STATES OF AMERICA, PLAINTIFF

v. STATE OF ALASKA

on bill of complaint

[June 19, 1997]

Justice Thomas, with whom The Chief Justice and Justice Scalia join, concurring in part and dissenting in part.

I agree with the Court that the limit of inland waters in the area of Stefansson Sound should be determined by reference to the Convention on the Territorial Sea and the Contiguous Zone, in which Alaska's proposed 10 mile rule finds no purchase. I also agree that Dinkum Sands is not an island within the meaning of the Convention. Accordingly, I join Parts I, II, and III of the Court's opinion. I do not share the Court's view that the United States holds title to submerged lands within National Petroleum Reserve Number 4. Nor do I agree with the Court's conclusion that, "at the time of [Alaska's] statehood," the then-unapproved application to create the Arctic Wildlife Range "expressly retained" the submerged lands within the boundaries described in that application under the Submerged Lands Act. I thus respectfully dissent from Parts IV and V of the Court's opinion.

I turn first to the Court's discussion of the National Petroleum Reserve. The Master's Report posited two possible measures for the specificity with which Congress must declare its intent to retain submerged lands that would otherwise pass to a new State. For those lands under inland waters—lands historically viewed as held by the United States "for the ultimate benefit of future States," Utah Div. of State Lands v. United States, 482 U. S. 193, 201 (1987) (internal quotation marks omit ted)—the Special Master employed a strict presumption of state ownership. The Master determined that lands under the territorial sea—those lands vested in the States solely by the Submerged Lands Act—ought to be presumed to remain in federal hands under "the principle that federal grants are to be construed strictly in favor of the United States." California ex rel. State Lands Comm'n v. United States, 457 U. S. 273, 287 (1982).

It is my view, however, that, since the enactment of the Submerged Lands Act, the test for determining whether submerged lands—inland or territorial—are conveyed to a newly created State or retained by the United States is that set forth in the Act.

Following in the wake of our decision in United States v. California, 332 U. S. 19 (1947), as it did, the Submerged Lands Act is widely recognized for having deeded to coastal States the submerged lands lying within 3-mile bands surrounding their coasts. See §3(a), 43 U. S. C. §1311(a); see also United States v. Maine, 420 U. S. 515, 525 (1975). The Act declared it in the

"public interest that (1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States . . . ." §3(a).

The definition of "lands beneath navigable waters" included those submerged lands under the territorial sea. See §2(a)(2), 43 U. S. C. §1301(a)(2). The Act's undertaking to "ves[t] in and assig[n] to" the States the rights to those lands thus conveyed to the States lands that this Court had found in United States v. California to be exclusively federal enclaves. The definition of "lands beneath navigable waters" also included those lands beneath inland waters. See §2(a)(1) (defining "lands beneath navigable waters" to include "all lands within the boundaries of each of the respective States which are covered by nontidal waters that were navigable") (emphasis added). Accordingly—and the majority and I agree to this point—coastal States entering the Union after the passage of the Submerged Lands Act gained title to offshore submerged lands and to inland submerged lands through the operation of that statute.

Section 3, which conveyed and confirmed the States' title to submerged lands, was subject to a series of exceptions. As relevant here, §5 of the Act excepted from §3's terms "all lands expressly retained by or ceded to the United States when the State entered the Union (otherwise than by a general retention or cession of lands underlying the marginal sea)." §5(a), 43 U. S. C. §1313(a) (emphasis added). As to lands beneath the marginal (or territorial) sea, it is undisputed that the "expressly retained" exception sets forth the test for determining whether a withdrawal or reservation of land by the United States is effective in preventing conveyance of title to submerged lands. It seems clear to me that it is also the test for determining whether the United States has retained title to inland submerged lands. Section §3(a) lands include those beneath both inland and territorial waters. In the case of a State, like Alaska, that received title to all of its submerged lands by virtue of the Submerged Lands Act, there is no need to consult conflicting presumptions, two-part tests, or anything other than the stated policy on which Congress has finally settled.

The Court seems to agree with me that the Act is now the expression of Congress' policy on submerged lands retention. But, the Court also seems to view the phrase "expressly retained" in the Act as shorthand for the test we employed in Utah Div. of State Lands, a case decided three decades after passage of the Act. That is, to determine whether submerged lands have been "expressly retained," we must determine whether Congress "clearly intended to include land under navigable waters within the federal reservation," and whether Congress "affirmatively intended to defeat the future State's title to such land." 482 U. S., at 202 (emphases added). I find the Court's reading of the "expressly retained" language curious. First, as I discuss below, the language does not lend itself to the Court's construction. Second, it is not the case that the test set forth in Utah Div. of State Lands was simply a restatement of the test employed by the Court before the enactment of the Submerged Lands Act. Were it so, then the majority's assertion that the standard in the Act was described in pre-Act cases and simply "carried forward," ante, at 34, into Utah Div. of State Lands might be colorable. As it happens, in Utah Div. of State Lands, the Court addressed for the first time the argument that a retention—as opposed to a conveyance—of submerged lands by the United States could defeat a future State's title to those lands, 482 U. S., at 200. In response, the Court crafted the two-part test relied on by the majority today. Id., at 202. Whatever can be said of that test, it was not before the drafters of the Submerged Lands Act. Accordingly, there is no reason to believe that, when Congress employed the phrase "expressly retained," it intended a meaning not obvious from those words and not set forth in an opinion of this Court until three decades after the Act became effective.

But the Submerged Lands Act, I think, embraces at least part of the policy that we had attributed to Congress in several pre-Act cases. We have, for example, stated that we would not affirm a conveyance of inland submerged lands that was not set out in "clear and especial words," Martin v. Lessee of Waddell, 16 Pet. 367, 411 (1842), or "unless the claim . . . in terms embraces the land under the waters of the stream," Packer v. Bird, 137 U. S. 661, 672 (1891). It is, I believe, the meaning of these passages that "expressly retained" captures. Because the only "lands" described in §3(a) of the Act are submerged lands, the requirement that any retention of them be "expres[s]," means that the retention must "in terms embrac[e] the land under the waters." Accordingly, contrary to the Master's conclusion and much of the majority's analysis, a retention of lands cannot be inferred from, for example, the purpose of a given attempted federal undertaking. To be sure, prior to the passage of the Submerged Lands Act, the Court looked beyond the words used in efforts to prevent passage of submerged lands to newly created States. For example, in United States v. Holt State Bank, 270 U. S. 49 (1926), the Court noted that "disposals by the United States during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain." Id., at 55 (emphases added). After the enactment of the Submerged Lands Act, it appears that not only is retention of submerged lands not "lightly to be inferred," it is not to be inferred at all. In this respect, Congress has required of itself a higher standard than either the Master or the majority attribute to it.

Neither the Master, in his exhaustive Report, nor the majority, in its only slightly less exhaustive opinion, cites anything meeting what I believe to be the requirement of an express retention of submerged lands within the boundaries of the National Petroleum Reserve. The majority focuses, instead, on the "purpose of the conveyance or reservation" as a "critical factor in determining federal intent." Ante, at 38 (emphasis in original). The Court concludes that the purposes for establishing the Reserve—primarily to ensure federal possession of petroleum resources within the Reserve's boun daries—would be undermined if the United States did not retain the submerged lands. So "[i]t is simply not plausible," says the majority, "that the United States sought to reserve only the upland portions of the area." Ibid. To me, these considerations are wholly beside the point. Congress, when it incorporated the Submerged Lands Act into §6(m) of the Alaska Statehood Act, Pub. L. 85–508, 72 Stat. 343, demanded of itself an express retention of submerged lands to prevent their passage to Alaska. If Congress had the purpose attributed to it by the majority, the best way—indeed, the only legal way—for it to realize that purpose was to state "expressly" that the submerged lands inside the National Petroleum Reserve were retained for the United States. It may well be, as the majority concludes, that Congress can retain lands by ratification of or reference to an earlier instrument describing those lands (the majority points here to President Harding's 1923 Executive Order). But, congressional ratification of an instrument that does not—as President Harding's order does not—"in terms embrac[e] the land under the waters" cannot, anymore than a statute that fails to do so, constitute and express retention as required by the Submerged Lands Act.

Absent an express retention of submerged lands, the Submerged Lands Act effected the transfer of all submerged lands within the Territory of Alaska to the State of Alaska—including those within the boundaries of National Petroleum Reserve Number 4. I dissent from the Court's contrary conclusion.

The majority rejects the Master's recommendation that Alaska be found to hold title to the submerged lands within the Arctic National Wildlife Refuge. Although I acknowledge that the question is close, I agree with the Master and would overrule the United States' exception.

The United States contends that the submerged lands within the Refuge were "expressly retained" when Alaska became a State. Section 5 of the Alaska Statehood Act keeps for the United States "title to all property, real and personal, to which it has title, including public lands." 72 Stat., at 340. The various subsections of §6 of the Statehood Act exclude from that general retention a variety of lands. Section 6(e) provides that Federal agencies will "transfe[r] and conve[y]" to Alaska "[a]ll real and personal property of the United States situated in the Territory of Alaska which is specifically used for the sole purpose of conservation and protection of the fisheries and wildlife of Alaska" under three statutes. Ibid. A proviso to §6(e), however, states that "such transfer shall not include lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife." Id., at 341.

The United States contends that the Refuge was, as of Alaska's statehood, "set apart as [a] refug[e]." This was accomplished, it is argued, by means of an application filed with the Secretary of the Interior in November 1957 by the Bureau of Sport Fisheries and Wildlife "to establish an Arctic Wildlife Range" within certain lands in Alaska's northeastern corner. See Report of Special Master 447, n. 1 (Report) (citing Alaska Exhibit 81). The Government does not argue that the Refuge was "withdrawn" by the application within the meaning of §6(e). See Brief for United States 41; Report 463. Rather, the application falls within §6(e) because, we are told, the application "was the legal mechanism by which the Interior Department at that time `set apart' public lands for the creation of a wildlife refuge." Brief for United States 41. Under the Department of the Interior's regulations in effect at the time, the effect of an application was to "temporarily segregate such lands from settlement, location, sale, selection, entry, lease, and other forms of disposal under the public land laws, . . . to the extent that the withdrawal or reservation applied for, if effected, would prevent such forms of disposal." 43 CFR §295.11(a) (1958), 22 Fed. Reg. 6614 (1957). The regulation further provided that "[s]uch temporary segregation shall not affect the administrative jurisdiction over the segregated lands." Ibid.

The Master acknowledged the regulation's effect, but determined that, while it may have been to "set apart" the submerged lands within the Range, the lands were not "set apart as a refuge or reservation." Report 464 (emphasis in original). The majority disagrees, asserting that "[i]n the phrase `set apart as [a] refug[e],' the word `as' does not carry the requirement that the refuge be presently established." Ante, at 59. "[T]he phrase," concludes the majority, "aptly describes the administrative segregation of lands designated to become a wildlife refuge." Ibid.

I disagree. As the language of the Bureau of Sport Fisheries and Wildlife's application made clear, at the time of the application (and at the time of statehood), no one could say with any certainty what lands—if any—included within the boundaries set forth in the application were at that time "designated to become a wildlife refuge." See Report 447, n. 1 ("`The purpose of this withdrawal is to establish an Arctic Wildlife Range within all or such portion of the described lands as may be finally determined to be necessary for the preservation of the wildlife and wilderness resources of that region of northeastern Alaska'") (quoting Alaska Exhibit 81, p. 1) (emphasis added). Not only was it unknown whether the lands (or any of them) would ultimately become a refuge or reservation, but also, during the pendency of the application, the "administrative jurisdiction" over the lands remained with the Bureau of Land Management. See 43 CFR §295.11(a) (1958). The Fish and Wildlife Service did not begin to administer the Refuge until the application for it was finally adopted after Alaska's statehood. See Report 464. As of the time of the Alaska Statehood Act, the lands within the application had no certainty of ever becoming a refuge or reservation, and were not then administered as one.

This is not to say that the application and regulation did not have any effect on the lands described in the application. The lands within the application were, by operation of the regulation, free from certain "forms of disposal" during the pendency of the application. 43 CFR §295.11(a). I am willing to agree with the Master and the majority that, under the regulation, the lands were "set apart." But, they were "set apart" temporarily and merely to preserve the status quo pending the Secretary's decision on the application in order that a decision by the Secretary that such lands should become a refuge or reservation would not be a nullity. Contrary to the suggestion of the United States that the regulation "was the legal mechanism by which the Interior Department at that time `set apart' public lands for the creation of a wildlife refuge," Brief for United States 41, that regulation applied to all applications for withdrawals or reservations of land, not merely those to create wildlife refuges. See, e.g., 43 CFR §295.9 (listing who may apply for withdrawals or reservation without limitation to agencies seeking to create wildlife refuges). In my view, then, the Master overstated the effect of the application and regulation when he said that they "caused land to be set apart for the purpose of a wildlife reservation." Report 464 (emphasis added). The effect of the set-apart was to ensure that any decision to create a wildlife refuge—if that were the decision ultimately made—would not be undermined by prior land actions adverse to any such decision. Only if the procedures that intervened between the Bureau's application and Secretary's decision were merely ministerial, which the Government is wise not to argue (see 43 CFR §295.12 (1958) (describing procedures)), could the set apart be accurately described as "for the purpose of a wildlife reservation." Thus, it goes without saying that I do not agree with the majority's even more ambitious conclusion that the lands were "set apart as [a] refug[e]."

Nor do I agree with the majority's contention that the Master's reading would render the "otherwise set apart" portion of §6(e) redundant, as only a "completed reservation" of land would prevent that land from passing to Alaska. Ante, at 59. I believe that the proviso in §6(e) is set forth in broad language in an attempt to capture all ways in which a refuge or reservation for the protection of wildlife can be created—not unlike Congress' attempt in §3(a) of the Submerged Lands Act to capture every way in which title to submerged lands could be conferred. See supra, at 2. Accordingly, Congress' use of the phrase "lands with drawn or otherwise set apart" fairly encompasses every way in which lands can be segregated "as refuges or reservations." Requiring a completed refuge or reservation—by whatever means crea ted—does not render any portion of the proviso redundant.

For these reasons, I conclude that the Master correctly determined that the Bureau's application was not sufficient for purposes of §6(e)'s proviso. I would overrule the United States' exception to his recommendation.

I would overrule Alaska's exceptions to the Master's recommendation on the method for determining the limits of Alaska's offshore submerged lands, and his recommendation concerning Dinkum Sands' insular status. I concur with the majority on these two points. I would also overrule the United States' exception to the Master's recommendation concerning the Arctic Wildlife Refuge. And, finally, I would sustain Alaska's objection to the Master's recommendation as to the ownership of submerged lands within National Petroleum Reserve No. 4. On these last two points, I respectfully dissent.