U.S. Owns Submerged Lands in Glacier Bay

Alaska v. United States, 125 S. Ct. 2137 (2005).

Lance 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 Court’s jurisdiction to referee the submerged lands claims between it and the United States. The Supreme Court appointed a Special Master to evaluate Alaska’s claims; the Special Master recommended judgment for the United States as title-holder of the submerged lands; and the Supreme Court affirmed that decision.

Equal 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 state’s 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 Alaska’s coast, and that the federal government had no express title to the submerged lands.

Alaska’s 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 Alaskan mainland.

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.

Alaska’s Claims over Glacier Bay
Glacier Bay National Park and Preserve is known for its diverse wildlife and ecosystem. It is located within Alaska’s 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.

Special Master’s Conclusions and Court’s 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 Master’s conclusions on all counts.

The special master weighed Alaska’s historical data against a broader analysis of the Archipelago’s 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 Alaska’s 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 Alaska’s 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 Alaska’s 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 mainland.

In rejecting Alaska’s juridical bay theory, the Special Master and Supreme Court relied heavily on the Convention’s 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 Glacier Bay.

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

Conclusion
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 state’s own enabling Act was sufficient evidence for the Court to make that determination.

Endnotes
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, 1609.
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 § 6(e).
10. See McDonald v. United States, 279 U.S. 12, 21 (1929).
11. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 482 (1988).