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Water Log 17:3

United States v. Alaska, 117 S.Ct. 1888 (1997).
 

Kristen M. Fletcher, J.D. and Richard Brownlow, 3L

OverviewI
n June, the U.S. Supreme Court ruled that certain submerged lands in the Beaufort Sea off Alaska's Arctic coast belong to the U.S. and not to the state, ending the 18-year dispute between the federal government and Alaska. Both the the government and Alaska sought to secure the billions of dollars in revenues from mineral leases on the lands.

Special Master's Findings

In 1979, after the U.S. filed suit to claim the submerged lands once and for all, the Supreme Court appointed Special Master J. Keith Mann of Stanford University to gather the facts and offer recommendations, a procedure commonly used in cases between the federal government and a state that are based on complex factual issues. Mann held extensive hearings and delivered 600 pages of recommendations to the Court in April of 1996.

The Master first found that Alaska's coastline should be defined in such a way as to give the government ownership to certain pockets of submerged lands even though they may be surrounded by state-owned lands. Second, the Master proposed that an ice formation off the Arctic coast called Dinkum Sands should not be treated as an island for purposes of measuring Alaska's coastline. Third, the Master found that submerged lands located within the boundaries of Alaska's National Petroleum Reserve did not pass to Alaska when it became a state. Fourth, the Master concluded that those submerged lands within the boundaries of the Arctic National Wildlife Refuge did pass to Alaska at statehood.

Alaska objected to three of the Master's findings and the U.S. objected to one. The Court reviewed the Master's findings and the parties' objections and decided in favor of the federal government on all issues. United States v. Alaska, commonly called the Dinkum Sands case, reviews the detailed history of submerged lands ownership. But, it also represents the complex application of international and domestic laws that ultimately allocate billions of dollars worth of unique land and mineral resources.
 

Who Owns Submerged Lands? Who Owns Alaska's Submerged Lands?
Prior to 1953, the federal government claimed the submerged lands off the coasts of states.⁽¹⁾ In 1953, Congress enacted the Submerged Lands Act, transferring title in certain submerged lands from the federal government to the states.⁽²⁾ The Act granted title of those submerged lands extending three miles from a state's coastline. This grant of title begs the question of what is a coastline. How is the three-mile measurement made? If the state has islands, is the measurement from the far side of an island or from the uplands? The Act also grants title to the three miles around offshore islands such as barrier islands. But, what is an island? If there is a chain of islands located close together, should we simply connect them with an imaginary line, using this line as the state's coastline? Finally, if an island is located more than six miles from the coast, should the lands between the upland three-mile belt and the island three-mile belt pass to the state or remain under federal title?

These issues arose in United States v. Alaska and as the Supreme Court answered the above questions, it determined the law that affects numerous states in addition to Alaska, which have island chains along their coasts. Alaska's position, however, is unique for a number of reasons. First, portions of the disputed submerged lands are located within two federal reservations of land. In 1923, President Harding created Alaska's National Petroleum Reserve by setting aside 23 million acres of land in northwest Alaska for their oil and gas potential. In 1960, the Secretary of the Interior approved the withdrawal of 8.9 million acres in northeast Alaska for the creation of the Arctic National Wildlife Refuge.⁽³⁾ These federal reservations of land prohibit Alaska from claiming title to submerged lands within the reservations' boundaries.

Alaska's position is also unique because of its Arctic coastline. For instance, one coastal feature which raises questions in the case is Dinkum Sands, a gravel and ice formation in the waters of the Stefansson Sound. Like barrier islands, Dinkum Sands is subject to daily shifts in tide and seasonal shifts in sea level. Because it is an arctic formation, it is also subject to changes in height due to ice melt, causing the feature to slump in elevation, often to be submerged below the Arctic waters, raising the question of its status as an island. Alaska also has numerous island chains with various sizes, numbers of islands, and distances between islands. The Court considers these unique qualities in its opinion.
 

Parties' Objections & the Court's Review
A. Finding #1: Alaska's Barrier Islands

The Special Master found that in defining the coastline of Alaska, the measurement begins at the mainland, not at a line connecting offshore islands. Alaska objected arguing that in previous disputes, with islands located within ten miles of each other, the U.S. has drawn such a line.⁽⁴⁾ If the islands along the Arctic coast were connected, the lands shoreward of this connecting line would belong to Alaska. If no connector existed between the islands, then lands between the upland belt and island belt remain under U.S. title and these federal lands would be surrounded by state lands. (See illustration page 9.)

The Court agreed with the Master because Alaska failed to show that connecting islands in this way is a well-established practice of the U.S. The Court distinguished the Dinkum Sands case by noting that in the disputes which Alaska relied upon, such a line was a result of historical treatment of the waters between the upland and islands and foreign travel within those waters. Neither of these factors exist in the Alaskan waters. Therefore, the Court concluded that the upland, as well as each island, retains its three-mile belt of Alaska-owned submerged lands. Therefore, according to the Court, the federal government holds title to lands between these two belts.

B. Finding #2: Dinkum Sands Not an Island

The Special Master found that Dinkum Sands does not qualify as an island for the purpose of determining Alaska's coastline. The court applied an internationally recognized definition an island is a "naturally-formed area of land, surrounded by water, which is above water at high-tide."⁽⁵⁾

Alaska claimed that a feature such as Dinkum Sands must only be above water occasionally to qualify as an island. Dinkum Sands would meet the definition of an island under this standard. Again, the Court followed the Master's recommendation and found that the interntational standard requires a formation to be above water at all times except in abnormal circumstances. Measurements of Dinkum Sands taken between 1949 and 1983 revealed that it is frequently below the water line. Thus, Dinkum Sands is not an island and may not be used to claim title to additional submerged lands.

Alaska offered an alternative argument that Dinkum Sands be considered an island during those times when it occurs above water. The Court noted that no precedent exists for treating a formation which fluctuates above and below the water line as an island. The court ruled that such a definition is not practical. Alaska's owners would appear and disappear periodically and would lead to costly and time-consuming monitoring efforts.

C. Federally Reserved Lands

Finding #3-Petroleum Reserve

The Master found that the U.S. retains title to those submerged lands within the boundaries of the Petroleum Reserve. Alaska argued that the U.S. did not show the required clear intent to maintain title of submerged lands when it set aside the Petroleum Reserve. In 1923, the government included Arctic waters within the boundaries of the Petroleum Reserve but Alaska claimed that the inclusion of waters does not show a clear intent to include the submerged lands beneath these waters.

The Court dismissed Alaska's claim to these lands explaining that the purpose of the Petroleum Reserve was to retain U.S. ownership of the lands with potential petroleum deposits. Specifically, Justice O'Connor stated that "[t]he purpose of reserving in federal ownership all oil and gas deposits within the Reserve's boundaries would have been undetermined if those deposits underlying lagoons and other tidally influenced waters had been excluded."⁽⁶⁾
 

Finding #4 - National Wildlife Refuge

The Special Master did find that submerged lands within the boundaries of the Arctic National Wildlife Refuge passed to Alaska when it became a state in 1959. He resolved that because the federal government had not yet created the refuge in 1959, that the U.S. did not show the intent to keep these lands from Alaska when it became a state. The government objected to this finding. A federal agency had applied for withdrawal of these lands in 1957 as part of the Wildlife Refuge. The government reasoned that even though the Refuge was not created until 1960, a year after Alaska became a state and took title to its three mile belt of submerged lands, the 1957 application shows the requisite intent to prevent passage of these lands to Alaska. The Court agreed with the federal government, rejecting the Master's finding, leaving title of the submerged lands within the Wildlife Refuge to the U.S.
 

Conclusion

In the Dinkum Sands case, the Supreme Court drew lines in the sand between the federal government and the states on the mineral-laden submerged lands. The fact that the lands at issue in United States v. Alaska are rich in petroleum made this case particularly contentious. By recognizing the right to reserve federal submerged lands, the Court reaffirmed the federal right to withdraw and use these lands for the public interest. However, by allowing federal ownership between state island chains and the state upland, the Court effectively drew a circle in the sand, carving out federal lands which are entirely surrounded by state-owned lands. While based in law, these circles seem to counter simple boundary delineation. They may in fact have the potential to cause greater squabbles between the federal government and the states, both eager to claim more lands below the sea.
 

1. United States v. California, 332 U.S. 19, 67 S. Ct. 1658 (1947) (Court determined that the United States held title to submerged lands seaward of the low-tide water line).

2. Submerged Lands Act, 67 Stat. 29, 43 U.S.C. § 1301 - 1315 (1997).

3. The lands were originally designated as the Arctic National Wildlife Range but were renamed the Arctic National Wildlife Refuge in 1980 with the addition of 9.2 million acres. See United States v. Alaska, 117 S.Ct. 1888 (1997), 1997 U.S. LEXIS 3865, at *77.

4. United States v. Alaska, 1997 U.S. LEXIS 3865, at *25 - *26.

5. Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958 [1964] 15 U.S.T. 1606, at Article 10(1). Because the Submerged Lands Act does not define island, the Court looks to international law for guidance.

6. United States v. Alaska, 1997 U.S. LEXIS 3865, at *64.

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