Owns Submerged Lands in Glacier Bay
v. United States, 125 S. Ct. 2137 (2005).
M. Young, 3L, Roger Williams School of Law
In 1998, Congress
voted to phase out commercial fishing in Glacier Bay and Tongass National
Forest for the purpose of protecting marine wildlife. Since then, the
National Park Service has progressively limited fishing and cruise ship
activity. Alaska protested by claiming title to submerged lands around
the Alexander Archipelago and Glacier Bay. Ownership of these submerged
lands would give the state control of commercial fishing and other activities
on the water directly above.
The Constitution gives original jurisdiction to the United States Supreme
Court over controversies between states and the federal government.
Alaska invoked the Courts jurisdiction to referee the submerged
lands claims between it and the United States. The Supreme Court appointed
a Special Master to evaluate Alaskas claims; the Special Master
recommended judgment for the United States as title-holder of the submerged
lands; and the Supreme Court affirmed that decision.
Footing and the Submerged Lands Act
Alaska bases its claims on the common law and statutory presumption
that states hold certain submerged lands in trust for the use and benefit
of the public. Upon statehood, the thirteen original states were vested
with title to submerged tidelands off their shores.1
When Alaska was granted statehood in 1959, it was guaranteed the same
rights and privileges, under the equal footing doctrine, as the original
13 states and all other states that joined the union before it. As the
Supreme Court explained in Pollard v. Hagan, submerged land within territories
acquired by the United States are transferred to the state upon statehood
under the equal footing doctrine.
The Submerged Lands Act of 1953 (SLA) affirmed state ownership and formally
extended ownership of submerged lands to three geographical miles beyond
a states coastline2 and granted the states ownership
and management authority over natural resources within the submerged
lands and the waters over them.3 Submerged lands that
the United States expressly ceded or retained when a state entered the
union are exempted from the SLA.4 Therefore, Alaska
would have a valid claim for the submerged lands around the Alexander
Archipelago Islands and Glacier Bay if it could demonstrate that the
tidelands were inland or within three geographical miles of Alaskas
coast, and that the federal government had no express title to the submerged
Claims over the Alexander Archipelago
Over a thousand submerged mountains covering 500 miles lie off the southeast
Alaskan coast. The mountain peaks form a group of islands called the
Alexander Archipelago. Deep channels of ocean water separate the island
group from the main coast of Alaska. None of the waters to which Alaska
claimed title were within three miles of the Alaskan mainland; so the
state claimed the Archipelago islands were themselves a part of the
Alaska first argued that the islands were part of the Alaskan mainland
under the historic inland waters theory. Under this theory, the Supreme
Court recognized that island waters are inland waters if a state demonstrates
that the United States exercised authority over them continuously and
with acquiescence of foreign nations. The Supreme Court emphasized that
the state must show that the federal government has established a right
to exclude innocent passage of all foreign vessels.
Alaska points to a number of historical incidents that support its claim
to the submerged lands. A ten-year treaty in 1824 between Russia and
the U.S. granted the U.S. the right to fish and trade in the Archipelago
waters. This shows, Alaska claimed, that Russia considered the waters
inland when it owned Alaska. At the end of those ten years, Russia stationed
a brig at the Russian/U.S. border to indicate to U.S. vessels they no
longer enjoyed the treaty rights. Alaska also cited a 1903 arbitration
proceeding between the U.S. and Britain, in which the U.S. attorney
referred to the waters as inland. Finally, Alaska alleged that the U.S.
controlled the waters by enacting fishing regulations throughout the
early twentieth century which excluded foreign vessels from commercial
fishing, relying on a case in which a foreign vessel was arrested for
a breach of the regulations.
Alaska posed a second theory for demonstrating that the islands were
inland. The U.N. Convention on the Law of the Sea recognizes that an
island group may be considered inland waters under the juridical bay
theory if they are deemed connected to one another and also to the mainland.
Article 7 of the Convention defines a bay as a well-marked indentation
whose penetration is in such proportion to the width of its mouth as
to contain landlocked waters and constitute more than a mere curvature
of the coast.5 Alaska argued that the Archipelago
does indeed have two connected but unnoticed juridical bays.
Claims over Glacier Bay
Glacier Bay National Park and Preserve is known for its diverse wildlife
and ecosystem. It is located within Alaskas three-mile coastal
area. The quickly retreating glacial structures in the Bay are a natural
phenomenon of great scientific importance.
There was no question that Glacier Bay waters would be presumed state
waters under the equal footing doctrine and SLA. The question remained,
however, whether the U.S. had rebutted that presumption. The presumption
can be rebutted when Congress has set aside the submerged lands as part
of a federal reservation. The Supreme Court test for determining whether
Congress has retained control of submerged lands is to look at whether
the submerged lands are within a reservation and whether the U.S. expressed
intent to retain title to the submerged lands on that reservation. Alaska
claimed that the U.S. never made an express intention to control the
submerged lands in this federal enclave.
Masters Conclusions and Courts Analysis
After considering both written and oral submissions by the U.S. and
Alaska, the Special Master recommended granting judgment to the U.S.
for all submerged lands that were in dispute. The Supreme Court accepted
the Special Masters conclusions on all counts.
The special master weighed Alaskas historical data against a broader
analysis of the Archipelagos history and concluded that the U.S.
had never established a right to exclude foreign vessels from the Archipelago
waters and therefore Alaska could not claim title to the waters under
the historic inland waters theory. The Special Master discounted the
treaty between U.S. and Russia because it did not address navigation
for the purpose of innocent passage. Its scope was specific to fishing
and trading with natives. The brig that was stationed at the border
did not prohibit foreign vessels from entering the waters. In 1886,
a State Department letter described only waters within three nautical
miles of the mainland, which excluded the Archipelago island waters,
as waters that would prohibit foreign passage. This evidence of U.S.
intention was persuasive to the Court.
The Supreme Court was particularly reluctant to accept Alaskas
contention that a 1903 arbitration proceeding could be considered evidence
that the U.S. intended to exclude foreign vessels from passage in these
waters. Quoting Alaskas brief to the court, If this court
were to recognize historic inland waters claims based on arguments made
by counsel during litigation about nonmaritime boundaries, the United
States would itself become vulnerable to similarly weak claims by other
nations that would restrict the freedom of the seas.6The
Court also rejected Alaskas argument that fishing legislation
in 1906, which prohibited foreign fishing, was evidence of U.S. control,
even though Alaska provided one instance of enforcement. The isolated
incident was too little evidence, according to the Court, to show the
U.S. demonstrated continuous enforcement when all other authority indicated
that there was no U.S. control beyond three miles of the Alaskan coastal
In rejecting Alaskas juridical bay theory, the Special Master
and Supreme Court relied heavily on the Conventions requirement
of well-marked indentations. The Court noted that the state
of Alaska did not even discover the physical features that it relied
upon to make its argument that the islands were connected until this
litigation had commenced. It noted that the physical features, which
Alaska identifies, would not be identifiable to a mariner.
Glacier Bay, as the Court nostalgically acknowledged, had been a federal
reservation for thirty-four years prior to Alaskan statehood and has
existed primarily for the purpose of preserving wildlife and protecting
the natural phenomenon that occur there. The Court assumed that the
Antiquities Act of 1906, which empowers the President to declare and
control national monuments, empowers the federal government to set aside
the submerged lands that fall within the preserved area.7
The stated purpose for establishing national parks and monuments is
to conserve the scenery and the natural historic objects and wildlife
and leave them unimpaired for future generations.8
The Court reasoned that these legislative proclamations could demonstrate
that the federal government expressly reserved the submerged lands within
The Supreme Court, however, formally looked to the Alaska Statehood
Act (ASA) to make its determination that the United States owned title
to submerged lands of Glacier Bay. Section 6(e) of the ASA specifically
reserves for the United States all real and personal property
of the U.S. that is used for the sole purpose of conservation
and protection of the fisheries and wildlife in Alaska to lands
withdrawn or otherwise set apart as refuges or reservations for the
protection of wildlife.9 Alaska argued that this
section was only applicable to specific refuges referenced in the initial
clause of § 6(e) of the ASA. The Court relied on Supreme Court
precedent that held a proviso is not applicable only to the part
of the enactment with which it is immediately associated; it may apply
generally to all cases within the meaning of the language used.10
In an opinion over submerged lands claims in Mississippi, the Supreme
Court said, We have recognized the importance of honoring reasonable
expectations in property interests. But such expectations can only be
of consequence where they are reasonable ones.11 The legal theories that Alaska presented in hopes of controlling commercial
activities on a federal enclave and on waters outside its territorial
waters were viewed as unreasonable in this instance. Clearly, the Supreme
Court is not willing to extend state submerged lands ownership to waters
around island groups, outside three miles of the mainland coast, without
strong evidence that the U.S. has controlled and excluded foreign vessels
from those waters. Furthermore, physical features that make up a juridical
bay must be clearly identifiable. Finally, the designation of federal
preservation areas or monuments can be enough to rebut the presumption
of state submerged land ownership. In this case, however, the states
own enabling Act was sufficient evidence for the Court to make that
1. See U.S. v. Alaska, 521 U.S. 1, 5 (1988);
Shively v. Bowlby, 152 U.S. 1, 15 (1892).
2. 43 U.S.C. § 1312 (2005).
3. Id § 1311(a).
4. Id. § 1313(a).
5. Law of the Sea: Convention on the Territorial
Sea and the Contiguous Zone, Apr. 29, 1958, art. 7, 15 U.S.T. 1606,
6. U.S. v. Alaska, 125 S. Ct. 2137, 2149-50 (2005).
7. See 16 U.S.C. § 431.
8. Id. § 1.
9. Alaska Statehood Act, 72 Stat. 339 §
10. See McDonald v. United States, 279 U.S.
12, 21 (1929).
11. Phillips Petroleum Co. v. Mississippi, 484 U.S.
469, 482 (1988).