Arctic equity? The Supreme Court's resolution of United States v. Alaska.

• Author: Grover, Todd
• Position: Arctic National Wildlife Refuge

1. INTRODUCTION

   Anyone following the national debate between wildlife conservationists and resource development advocates during the past decade is undoubtedly familiar with the Arctic National Wildlife Refuge (ANWR). Stretching across the vast coastal plains of northeastern Alaska, ANWR has come to symbolize the ongoing battle between these two interest groups.(1)

   The Refuge, as ANWR is sometimes called, currently enjoys the relative protection of federal law. Since 1957, the United States Department of the Interior has exercised primary administrative authority over most of the land comprising modern-day ANWR.(2) This fact has meant a great deal to people who care about the Refuge. Federal management has produced a land that is valued as much for its unique wilderness character as it is prized for its suspected mineral wealth.(3) In particular, federal management has precluded significant petroleum exploration and development of the Refuge(4)--a prohibition that is likely to continue should Al Gore succeed to the Presidency.(5)

   The State of Alaska is more interested in ANWR's oil. As a state without an income tax, Alaska depends heavily upon royalties derived from north slope oil production.(6) Thus, Alaska's congressional delegation is continually pushing legislation aimed at opening the Refuge for oil exploration and development.(7) Indeed, opening ANWR is a cause celebre for many Alaskans, second only in their hearts and minds to the cherished permanent fund dividend.(8)

   In June of 1997, Alaska lost another round in its fight to open ANWR when the United States Supreme Court announced its decision in United States v. Alaska.(9) In 1979, the federal government sued the State of Alaska in the Supreme Court to determine ownership of certain submerged lands along the northern coast of ANWR. The disputed lands lie beneath tidally influenced waters within three miles of Alaska's coastline, and overlie suspected oil reserves.(10) In United States v. Alaska, the Court decided that the federal government reserved title to these critical lands when Alaska became a state in 1958.(11) The Court's holding effectively means that the federal government, not the State of Alaska, will chart the future course of the coastal plain.

   This Note discusses the Supreme Court's resolution of the ANWR issues presented in United States v. Alaska. Part II describes the statutory law on which the Court based its decision and discusses how this law has shaped ANWR over the past forty years. Part III discusses the history and resolution of the case, concluding that the majority opinion fails to provide a satisfactory explanation for its important decision. Part IV then suggests that the majority nonetheless reached the proper decision. Specifically, Part IV proposes that the Court was compelled to rude in favor of the federal government both because of the Court's long-standing tradition of construing public land grants in favor of the federal grantor and because of the federal government's long possession of the Refuge. This Note concludes by suggesting the continuing importance of possessory concepts to practitioners of public land law.

2. BACKGROUND

   1. The Statutory Genesis of ANWR and Alaska

      The statutory and administrative law surrounding the creation of ANWR is a confused mess. The principal cause of this mess is the unfortunate fact that the precursor to ANWR was conceived at the same time as the admission of Alaska into the Union. Whenever a state is admitted to the Union, Congress grants to that state a portion of the public lands, lands to be used by the state for raising revenue, constructing public works, and for other public purposes. When Alaska entered the Union in 1958, Congress transferred an exceptionally large amount of land to the new state.(12) At the same time, however, the Department of the Interior used its authority to administratively reserve land for federal use. The result is one great bungle. After the passage of forty years, it is quite difficult to determine who owns what. This subsection describes, in rough chronological order, the congressional and administrative actions that spawned ANWR and the State of Alaska.

      1. Administrative Segregation

         In the years immediately preceding Alaska's statehood, the Department of the Interior enjoyed broad regulatory authority over the character and use of the public lands in the territory that is now Alaska. The Department of the Interior derived its authority from a congressional delegation of power made in 1946.(13) The apparent purpose of this delegation was to consolidate control over mineral deposits on public lands under the jurisdiction of the Department of the Interior.(14) Toward this end, Congress established the Department of the Interior as the primary landlord in the territory.

         In 1957, the Department of the Interior flexed its regulatory muscle. With statehood for Alaska right around the corner, the Secretary of the Department of the Interior (Interior Secretary) promulgated regulations creating an administrative process for the reservation and withdrawal of public lands in the territory.(15) The regulations provided that Department of the Interior agencies could petition the Interior Secretary for withdrawal of select lands by filing an application for withdrawal with the Interior Secretary's office.(16) Once the Interior Secretary received such an application, the regulations provided that the lands would be "temporarily segregate[d]" pending a final withdrawal decision.(17) In effect, the newly promulgated regulations permitted agencies to suspend application of otherwise applicable public lands laws--including, for example, the mineral patenting code--until the Interior Secretary decided whether to make a formal withdrawal.

         The Bureau of Sport Fisheries and Wildlife Bureau, a division within the Department of the Interior, wasted no time in taking advantage of the new regulations. In November of 1957, the Bureau submitted an application for withdrawal to the Interior Secretary.(18) The application identified as appropriate for withdrawal some 6.4 million acres of land abutting the territory's arctic coastline,19 According to the Bureau, the identified lands provided critical habitat for coastal wildlife and thus warranted federal protection.(20) The Interior Secretary would take no action on this application until 1960.

         The legal effect of the Bureau's application is simple to state, but difficult to understand in full, especially in light of subsequent events. The 1957 Department of the Interior regulations clearly provided that the Interior Secretary's receipt of an application caused a temporary segregation of the identified lands pending a final withdrawal decision by the Interior Secretary.(21) Accordingly, there can be no disputing the fact that the lands in question were segregated from remaining public lands in the territory following delivery of the Bureau's application in November of 1957. Nevertheless, the lands were not formally withdrawn until 1960. Nor were the lands officially designated as a wildlife range or refuge until 1960.(22) Consequently, the 8.9 million acres identified in the Bureau's 1957 application were lingering in a sort of legal limbo when Alaska became a state in 1958.

      2. Congressional Action: The Alaska Statehood Act of 1958

         Congress passed the Alaska Statehood Act (Statehood Act or Act) in July of 1958.(23) The Statehood Act is essentially Alaska's organic legislation. It provided for Alaska's admission to the Union on equal footing with all other states and expressly declared Alaska's subservient position within the American system of constitutional federalism.(24) Further, the Statehood Act granted Alaska a specified amount of federal public lands: nearly thirty percent of the public lands then available in the territory--well over one hundred million acres.(25)

         Among the Statehood Act's grant provisions, two subsections are particularly important. The first is section 6(e)(26) Section 6(e) of the Act granted to Alaska all property previously used by the federal government "for the sole purpose of conservation and protection" of the territory's fish and wildlife.(27) By this provision, the Act purports to grant all public lands previously managed by the federal government for wildlife conservation purposes to Alaska. Such a broad grant is consistent with the stated intent of the Statehood Act's drafters that the new state assumes regulatory jurisdiction over all of the state's fish and wildlife resources.(28) However, section 6(e) also contains a reservation proviso. Buried within that section is a clause reserving for the federal government all "lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife."(29) Thus, when read as whole, section 6(e) granted to Alaska all lands generally used for conservation purposes, but reserved for federal management those lands previously withdrawn or set apart as wildlife refuges or reservations.

         The second significant grant provision is found in section 6(m) of the Statehood Act.(30) This section expressly provided that the Submerged Lands Act of 1953(31) applied to the State of Alaska.(32) In relevant part, the Submerged Lands Act provides that states inherit title to all submerged lands within three miles of their respective coastlines as an additional benefit of statehood.(33) In the absence of any limitations, the Submerged Lands Act (through section 6(m) of the Statehood Act) grants Alaska the lands at issue in United States v. Alaska--submerged lands lying less than three miles off the northern coast of the State.(34) However, like section 6(e), the grant contained in section 6(m) is limited. The Submerged Lands Act reserves for the federal government all lands "expressly retained" by the government.(35) When read together, these provisions transferred all coastal submerged lands to the State, yet reserved any lands that...