Alaska v. U.S. (06/06/2005)

/ 04-05

Questions presented: (1) Whether the Special Master correctly determined, in recommending that the Court grant the United States summary judgment on Count I of Alaska's amended complaint, that the straits and channels separating the islands of the Alexander Archipelago from each other and the mainland are not "historic inland waters?" (2) Whether the Special Master correctly determined, in recommending the Court grant the United States summary judgment on Count II of the amended complaint, that the straits and channels separating the islands of the Alexander Archipelago from each other and the mainland do not constitute one or more juridical bays? (3) Whether the Special Master correctly determined, in recommending that the Court grant the United States summary judgment on Count IV of Alaska' amended complaint, that the United States reserved, and retained in federal ownership at the time of Alaska's statehood, the marine submerged lands within Glacier Bay National Monument (now Glacier Bay National Park and Preserve) to allow scientific study of tidewater glaciers, to preserve remnants of ancient inter-glacial forests, and to protect wildlife, including the brown bear?BY MICHELLE EVANS, MEDILL NEWS SERVICE

Glacier Bay National Park, southeast of Alaska's mainland, provides visitors with spectacular scenes of diverse natural resources and a living laboratory in which to study the ebb and flow of glacier activity.

The park encompasses a range of diverse scenes, including snow-capped mountain ranges, coastal beaches, deep fjords, coastal and estuarine waters and fresh lake waters. The environmental hodgepodge has given way to a spectrum of plant life from well-developed communities in older, coastal ecosystems to pioneer species that have popped up in areas recently exposed by receding glaciers. Just as unique are the broad ranges of wildlife that inhabit the tidal areas, waters and submerged islands under Glacier Bay.

The waters of Alexander Archipelago, which includes Glacier Bay National Park, are central to Alaska's historical, cultural and commercial livelihood. Russians, for example, were first attracted to Southeast Alaska in 1741 because of the fur-bearing marine animals and fish present in that region. Even today the marine waters support prominent fishing and cruise ship industries.

Though the United States controls the national park, the State of Alaska and the federal government have disputed for a number of years which entity controls the submerged islands in the nearby marine waters.

Alaska filed an original action with the U.S. Supreme Court on Nov. 24, 1999, asking the Court to to determine sovereignty.

The action came on the heels of an announcement by the federal National Park Service, which said it would gradually phase out commercial fishing in those waters, claiming the activity was illegal and could harm the park's ecosystem. The state, though, refutes the federal government's argument that the traditional activity poses any environmental risk.

Alaska made its claims to the submerged islands under the Equal Footing Doctrine and the Submerged Lands Act of 1953. Together they give a state title to submerged lands beneath inland navigable and marine waters up to three nautical miles from the state's coastline, except in situations where the federal government explicitly retained the title upon granting statehood.

"The issues in this case go to the heart of Alaska's Statehood Compact, to the heart of a plan for Alaska statehood based on a grant of lands and interests in resources, and to the heart of our constitutional federal system," Alaska Attorney General Gregg Renkes argued to Special Master Gregory Maggs, who was appointed by the Supreme Court to make recommendations to the high court.

Alaska says when the United States granted statehood in 1959, the federal government did not explicitly state its intention to retain the submerged lands located within the boundaries of the Glacier Bay National Monument, an area that has since expanded and is now known as Glacier Bay National Park and Glacier Bay National Preserve. The United States disagrees, asserting that Congress had retained federal ownership.

The United States concedes, though, that Alaska has valid claim to most of the marine submerged lands within the Tongass National Forest, which encompasses about 17 million acres of forests surrounding Glacier Bay.

The National Parks Conservation Association, which was founded in 1919 to protect natural and historic objects in national parks and monuments, said Alaska's request for title would seriously threaten Glacier Bay because it said the state intended "commercial exploitation" of the region.

"NPCA and its 350,000 members have a substantial interest in ensuring that our national parks and monuments are preserved inviolate, as mandated by Congress," the organization wrote in its amicus brief to the Supreme Court.

In order to lay claim to the land under the Submerged Lands Act, the disputed land must meet the three-mile legal requirement, which the federal government argued the state has not satisfied.

Alaska claims that the waters in question should be considered "inland waters" since they have been historically treated as such and also because they fall within several juridical bays defined by the Alexander Archipelago's geographic features. The United States argues that the waters lying within three miles of the shores of the mainland long have been recognized as territorial seas rather than inland waters.

"The history of the Alexander Archipelago is long and involves many details," the Special Master said in his March 2004 report to the Court. "Consideration of the whole record, however, demonstrates that Alaska, at best, has uncovered and presented only ‘questionable evidence' that the United States exercised the kind of authority over the waters of the Archipelago that would be necessary to prove a historic waters claim."

Alaska also claims the pockets and enclaves of the submerged lands lie within the three-mile closing of the four juridical bays near the archipelago, though the state admits they are not within three miles of the shoreline. The federal government says the three-mile boundary should be determined by measuring from the coast and around each island in the archipelago. That interpretation would leave some pockets of submerged lands further away from shore undisputedly under federal control.

The Special Master granted summary judgment in favor of the United States, concluding that the waters within the archipelago are not historic inland waters, the juridical bays do not apply and the United States retained title to the submerged lands within Glacier Bay when statehood was granted.

"The United States has shown that the Glacier Bay National Monument, as it existed at the time of statehood, clearly included the submerged lands within its boundaries," the Special Master wrote in his 357-page report. "In addition, excluding submerged lands would undermine the purposes of studying tidewater glaciers and preserving wildlife and the remnants of ancient forests."

During the summer, Alaska filed exceptions to the Special Master's recommendations to the Court, saying he erred in his statutory interpretation of the law.

On June 6, 2005, the Court sided with the U.S. government over Alaska. Justice Anthony Kennedy wrote the majority opinion. Justices Antonin Scalia and Clarence Thomas dissented in part.

Less than a year later, on Jan. 23, 2006, the Court again sided with the U.S. government, this time decreeing that the U.S. retains title to the land and that Alaska "shall take nothing." The U.S., though, disclaimed any title to the marine-submerged lands within the Tongass National Forest.