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Daryl James et al., v. State of Alaska (12/26/97), 950 P 2d 1130
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DARYL JAMES, GEORGE JAMES, ) Supreme Court No. S-7350
EMBERT JAMES, LOREN JAMES, )
and LILLIAN CHARLES, ) Court of Appeals
) Nos. A-5140/5144
) Trial Court Nos.
) 1CR-S92-214 Cr.
v. ) 1CR-S92-215 Cr.
) 1CR-S92-216 Cr.
) 1CR-S92-217 Cr.
STATE OF ALASKA, ) 1CR-S92-218 Cr.
) O P I N I O N
______________________________) [No. 4925 - December 26, 1997]
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court of the State of
Alaska, Third Judicial District, Craig, Peter
B. Froehlich, Judge.
Appearances: Susan M. Crocker, Assistant
Public Defender, Ketchikan, John B. Salemi,
Public Defender, Anchorage, for Petitioners.
Joanne Grace, Assistant Attorney General,
Anchorage, Bruce M. Botelho, Attorney
General, Juneau, for Respondent.
Before: Compton, Chief Justice, Matthews,
Eastaugh, and Fabe, Justices. [Bryner,
Justice, not participating.]
The question presented is whether the State owns
submerged lands within the exterior boundaries of the Tongass
National Forest. Under the equal footing doctrine and the
Submerged Lands Act, title to submerged lands is conveyed to a
new state at statehood unless a prior withdrawal was clearly
intended to include submerged lands, and unless the United States
clearly intended to defeat the future state's title to the
submerged lands so withdrawn. Intent to include submerged lands
within a withdrawal may be inferred from the purpose and language
of a withdrawal. The purposes of the proclamation creating the
Tongass do not require submerged lands and its language does not
suggest that submerged lands were included. We conclude that the
submerged lands were not included within the proclamation, and
that they thus passed to the State.
II. FACTS AND PROCEEDINGS
Daryl, Loren, Embert, and George James, and Lillian
Charles (Defendants) were charged with illegally possessing
herring roe on kelp in violation of AS 16.05.920(a).1 The
Defendants possessed more herring roe on kelp than was permitted
under their subsistence permits.2 The herring roe on kelp was
harvested from coastal waters within the exterior boundaries of
the Tongass National Forest (Tongass).
Defendants moved to dismiss the charges. They argued
that the State did not have jurisdiction because the activity was
regulated by federal law under the Alaska National Interest Lands
Conservation Act (ANILCA). 16 U.S.C. 3101-3233 (1988). The
superior court denied the motion.
The case proceeded to trial; the jury convicted the
Defendants. The court of appeals affirmed. James v. State, Mem.
Op. & J. No. 3150 (Alaska App., April 26, 1995). This court
granted Defendants' petition for hearing.
A. The Question Presented Is Whether the United
States Owns the Submerged Lands of the Tongass.
The Defendants argue that ANILCA applies to coastal
waters within the boundaries of the Tongass, because the United
States holds title to the coastal submerged lands, and because
ANILCA preempts subsistence fishery regulation by the State.3
The State responds that ANILCA does not apply to Tongass coastal
waters because the State owns the submerged lands and therefore
no basis for federal preemption exists. The State also argues,
in the alternative, that there was no preemption even if ANILCA
applies because the state regulations are consistent with ANILCA.
ANILCA grants to the federal government the authority
to regulate subsistence activities on "public lands." 16 U.S.C.
3114. The term "public lands"is defined by ANILCA as follows:
(1) The term "land"means lands, waters,
and interests therein.
(2) The term "Federal land"means lands
the title to which is in the United States
after December 2, 1980.
(3) The term "public lands"means land
situated in Alaska which, after December 2,
1980, are Federal lands, except--
(A) land selections of the State of
Alaska which have been tentatively
approved or validly selected under the
Alaska Statehood Act and lands which
have been confirmed to, validly selected
by, or granted to the Territory of
Alaska or the State under any other
provision of Federal law.
16 U.S.C. 3102. Thus, as we explained in Totemoff v. State,
905 P.2d 954, 962 (Alaska 1995), the term "public lands" in
ANILCA "means lands, waters, and interests therein, the title to
which is in the United States. But 'public lands' does not
include lands, waters, interests therein which were transferred
to Alaska under other federal laws." Id.
The roe that Defendants possessed was harvested in the
Craig-Klawock area of the west coast of Prince of Wales Island.
The exterior boundaries of the Tongass in this part of Alaska
extend from the international boundary with Canada some 150 miles
to the east, to a line approximately 60 miles to the west in the
Pacific Ocean. These boundaries were established by a
proclamation of President Theodore Roosevelt on February 16,
1909, withdrawing "[a]ll of the public land lying within the
boundaries described" and adding them to the Tongass.4
Proclamation No. 846 (1909). To determine whether ANILCA
applies, we must determine whether title to the coastal submerged
lands in the Tongass transferred to Alaska at statehood.5
B. Controlling Authorities.
The Defendants contend that the land beneath the
coastal waters of the Tongass was reserved to the United States
by the 1909 proclamation and was not transferred to the State at
statehood. The State contests this. Two cases set out the
general principles which govern this case.
1. Utah Lake
The first case is Utah Division of State Lands v.
United States, 482 U.S. 193 (1987) (Utah Lake). The issue in
Utah Lake was whether title to the bed of Utah Lake -- a
navigable body of water -- passed to the State of Utah upon
Utah's admission to the Union, or whether the land remained in
federal ownership because it had previously been reserved by the
United States Geological Survey as a reservoir site. Id. at 198-
The Court held that title to the lake bed had passed to
Utah based on the equal footing doctrine. The Court explained
the doctrine with respect to land underlying navigable waters as
When the 13 Colonies became independent from
Great Britain, they claimed title to the
lands under navigable waters within their
boundaries as the sovereign successors to the
English Crown. [Shively v. Bowlby, 152 U.S.
1, 15 (1894).] Because all subsequently
admitted States enter the Union on an "equal
footing" with the original 13 States, they
too hold title to the land under navigable
waters within their boundaries upon entry
into the Union. Pollard's Lessee v. Hagan, 3
How. 212 (1845).
Utah Lake, 482 U.S. at 196.
The Court went on to observe that Pollard's Lessee held
that the United States held lands under navigable waters in
territories "'in trust' for the future States,"and that dictum
in that case suggested that the equal footing doctrine
"absolutely prohibited the United States from taking any steps to
defeat the passing of title to land underneath navigable waters
to" future states. Id. The Court noted that this dictum has
been disavowed, as it was held in Shively v. Bowlby that the
federal government has the authority to make a prestatehood
conveyance of land under navigable water to a private party "in
exceptional instances,"in cases of "international duty or public
exigency." Utah Lake, 482 U.S. at 196-97 (quoting Shively, 152
U.S. at 50). The Court observed that there is "a strong
presumption"against such conveyances.
Utah argued in Utah Lake that only a conveyance to a
third party and not merely a federal reservation could defeat a
state's title to land under navigable waters at statehood. Id.
at 200. The Supreme Court assumed, arguendo, that such federal
power exists,6 id. at 201, but held that there was a strong
presumption against its use:
Although arguably there is nothing in
the Constitution to prevent the Federal
Government from defeating a State's title to
land under navigable waters by its own
reservation for a particular use, the strong
presumption is against finding an intent to
defeat the State's title.
Id. Drawing on the cases involving prestatehood conveyances to
third parties, the Court stated:
Congress, therefore, will defeat a future
State's entitlement to land under navigable
waters only "in exceptional instances," and
in light of this policy, whether faced with a
reservation or a conveyance, we simply cannot
infer that Congress intended to defeat a
future State's title to land under navigable
waters "unless the intention was definitely
declared or otherwise made very plain."
Id. at 201-202 (quoting United States v. Holt State Bank, 270
U.S. 49, 55 (1926)).
The Court noted a difference between prestatehood
conveyances to third parties and prestatehood reservations of
lands beneath navigable waters. In the former, Congress
necessarily intends to defeat the future state's claim to the
land. In the latter, however, there may not be such an intent.
"The land remains in federal control, and therefore may still be
held for the ultimate benefit of future States." Id. at 202. In
view of this, a two-part inquiry is required: (1) Did Congress
clearly intend to include the lands beneath navigable waters
within the reservation? (2) Assuming lands beneath the navigable
waters were included within the reservation, did Congress clearly
express an intention to defeat the future state's claim to the
underlying lands? Id.
2. Beaufort Sea
a. Utah Lake's "strong presumption" against
defeating future state's title to submerged
land applies to coastal submerged land.
There is a distinction between tidelands and coastal
undersea lands. Tidelands extend from mean high tide to mean low
tide. Coastal undersea lands extend seaward from mean low tide
for three miles.7 Tidelands and inland navigable waters are
covered by the equal footing doctrine and are controlled by the
Utah Lake decision. United States v. Alaska, 117 S. Ct. 1888,
1892 (1997) (Beaufort Sea). Coastal undersea lands do not pass
to the states under the equal footing doctrine. Therefore, the
doctrinal basis for Utah Lake's "strong presumption" against
defeating a future state's title does not exist as to such lands.
Coastal undersea lands were held in United States v.
California, 332 U.S. 19 (1947), to belong to the United States.
In 1953 Congress passed the Submerged Lands Act, which nullified
the effect of that decision and "recognized, confirmed,
established, and vested in, and assigned to the respective
States" title to submerged lands. 43 U.S.C. 1311(a) (1994).8
Under the Submerged Lands Act a state receives title to submerged
lands unless the United States has "expressly retained"them. 43
U.S.C. 1313(a) (1994).9 In Beaufort Sea the Court held that
Congress, by enacting the "expressly retained" exception,
intended to employ the same standard to lands which pass under
the act as that applicable to lands passing under the equal
b. Application of Utah Lake principles to
Beaufort Sea is also important because of how it
applied the Utah Lake principles and because it applied them in
the context of the Alaska Statehood Act. One of the withdrawals
at issue in Beaufort Sea was National Petroleum Reserve No. 4,
which was created by executive order in 1923. The boundary of
the reserve followed the Arctic "coast line"measured along "the
ocean side of the sandspits and islands forming the barrier reefs
and extending across small lagoons from point to point where such
barrier reefs are not over three miles off shore." Beaufort Sea,
117 S. Ct. at 1907 (quoting Exc. Order No. 3797-A). At issue was
whether the reserve included the submerged lands within this
boundary, such as tidelands landward of the islands and lands
underlying the "small lagoons"and the mouths of rivers and bays.
The State of Alaska argued that these submerged lands
were not included within the reserve based on Utah Lake and
another United States Supreme case, Montana v. United States, 450
U.S. 544 (1981). The Court rejected Alaska's argument in a
discussion which is of central importance to this case. We
therefore quote at some length from the Court's opinion. First,
the Court explained the Montana and the Utah Lake decisions as
In Montana, the United States, as
trustee for the Crow Tribe, sought a
declaratory judgment that it owned the
riverbed of the Big Horn River and had
conveyed a beneficial interest in the
submerged lands to the Tribe. The river was
located inside the boundaries of the Crow
Reservation established by treaty in 1868,
but the treaty did not expressly refer to the
riverbed. 450 U.S., at 548, 554, 101 S.Ct.,
at 1249, 1252-1253. Applying the "strong
presumption against conveyance by the United
States" to defeat a State's title, id., at
552, 101 S.Ct., at 1251, we concluded that
the "mere fact that the bed of a navigable
water lies within the boundaries described in
the treaty does not make the riverbed part of
the conveyed land, especially when there is
no express reference to the riverbed that
might overcome the presumption against its
conveyance," id., at 554, 101 S.Ct., at
1252-1253. Even though creation of an Indian
reservation could be an "appropriate public
purpose"justifying a conveyance of submerged
lands, a conveyance of submerged lands
beneath the river would not have been
necessary for the Government's purpose,
because fishing was not important to the Crow
Tribe's way of life. Id., at 556, 101 S.Ct.,
In [Utah Lake], the Court found that the
United States had not prevented the bed of
Utah Lake from passing to Utah at statehood.
The Sundry Appropriations Act of 1888, 25
Stat. 505, authorized the United States
Geological Survey to select "sites for
reservoirs and other hydraulic works
necessary for the storage and utilization of
water for irrigation and the prevention of
floods and overflows." Id., at 526. The
Survey selected Utah Lake as a reservoir
site. 482 U.S., at 199, 107 S.Ct., at 2322.
In 1890, when Congress repealed the 1888 Act,
it provided "that reservoir sites heretofore
located or selected shall remain segregated
and reserved from entry or settlement as
provided by [the 1888 Act]." Sundry
Appropriations Act of 1890, 26 Stat. 391.
In concluding that the 1888 Act did not
reflect a clear intent to include submerged
lands within lands reserved for reservoir
sites, the Court focused in part on the fact
that the Act was motivated by concerns that
settlers would claim lands suitable for
reservoir sites or other reclamation efforts.
482 U.S., at 198, 203, 107 S.Ct., at
2321-2322, 2324. These concerns of
"monopolization and speculation""had nothing
to do with the beds of navigable rivers and
lakes." Id., at 203, 107 S.Ct., at 2324.
Moreover, the Government's ability to control
and develop navigable waters would not be
impaired if the land beneath the navigable
waters passed to the State. Id., at 202, 107
S.Ct., at 2323-2324; see also Arizona v.
California, 373 U.S. 546, 597-598, 83 S.Ct.
1468, 1496-1497, 10 L.Ed.2d 542 (1963);
Arizona v. California, 283 U.S. 423, 451-452,
457, 51 S.Ct. 522, 524-525, 75 L.Ed. 1154
(1931). We also considered whether certain
references to the bed of Utah Lake in reports
by the Geological Survey, coupled with the
1890 Act's requirement that selected sites
remain segregated, accomplished a reservation
of the lakebed. We concluded that the
references to the lakebed in the Survey
documents, when placed in proper context, did
not indicate that the bed was included within
the reservation. [Utah Lake], supra, at 206,
107 S.Ct., at 2325-2326. Finally, we held
that even if the 1888 or 1890 Acts reflected
a clear intent to include submerged lands
within a reservation, there was no evidence
that the United States intended to defeat
future State's entitlement to any land
reserved. Again, our analysis focused on the
fact that the transfer of title to the
lakebed would not prevent the Government from
developing a reservoir or water reclamation
project at the lake. Id., at 208, 107 S.Ct.,
Beaufort Sea, 117 S. Ct. at 1907-08.
The Court then distinguished the Beaufort Sea case from
Utah Lake and Montana on the ground that the boundary of the
National Petroleum Reserve explicitly mentioned certain coastal
features, whereas the boundaries of the reserves in Montana and
Utah Lake merely embraced navigable waters and, most importantly,
because the purposes of the reserves in Montana and Utah Lake did
not require reservation of submerged lands, whereas the purpose
of the National Petroleum Reserve did require the inclusion of
submerged lands. The Court stated:
Montana and [Utah Lake] establish that
the fact that navigable waters are within the
boundaries of a conveyance or reservation
does not in itself mean that submerged lands
beneath those waters were conveyed or
reserved. But Alaska's reliance on these
cases is misplaced for two reasons. First,
the Executive Order of 1923 does not merely
define a boundary that encloses a body of
navigable water. Rather, in describing a
boundary following the ocean side of offshore
islands and reefs, the Order created a
Reserve that necessarily embraced certain
submerged lands--specifically, tide lands
shoreward of the barrier islands. Second,
Montana and [Utah Lake] establish that the
purpose of a conveyance or reservation is a
critical factor in determining federal
intent. See also Alaska Pacific Fisheries v.
United States, 248 U.S. 78, 87-89, 39 S.Ct.
40, 41-42, 63 L.Ed. 138 (1918) (reservation
of "body of lands"in southeastern Alaska for
Metlakahtla Indians included adjacent waters
and submerged lands, because fishing was
necessary for Indians' subsistence). The
Executive Order of 1923 sought to retain
federal ownership of land containing oil
deposits. The Order recited that "there are
large seepages of petroleum along the Arctic
Coast of Alaska and conditions favorable to
the occurrence of valuable petroleum fields
on the Arctic Coast,"and described the goal
of securing a supply of oil for the Navy as
"at all times a matter of national concern."
Petroleum resources exist in subsurface
formations necessarily extending beneath
submerged lands and uplands. The purpose of
reserving in federal ownership all oil and
gas deposits within the Reserve's boundaries
would have been undermined if those deposits
underlying lagoons and other tidally
influenced waters had been excluded. It is
simply not plausible that the United States
sought to reserve only the upland portions of
Id. at 1908-09 (footnote omitted) (emphasis in original).
In sum, the 1923 Executive Order
creating the Reserve reflects a clear intent
to include submerged lands within the
Reserve. The boundary by its terms embraces
certain coastal features, and the Master
interpreted it to embrace others. In light
of the purpose of the Reserve, it is simply
not plausible that the Order was intended to
exclude submerged lands, and thereby to
forfeit ownership of valuable petroleum
resources beneath those lands. The
importance of submerged lands to the United
States' goal of securing a supply of oil
distinguishes this case from Montana and
[Utah Lake], where the disputed submerged
lands were unnecessary for achieving the
Id. at 1909.
Having concluded that submerged lands were intended to
be included within the National Petroleum Reserve, the Court
turned to the second question required under the Utah Lake
decision, that is, whether "the United States intended to defeat
a future State's title"to the reserved submerged lands. Id.
The Court's master had found that in section 11(b) of the Alaska
Statehood Act Congress expressed a clear intent to defeat state
title, and the Court agreed. Section 11(b) of the Statehood Act
provides in part that
authority is reserved in the United States
. . . for the exercise by the Congress of the
United States of the power of exclusive
legislation . . . in all cases whatsoever
over such tracts or parcels of land as,
immediately prior to admission of said state,
are owned by the United States and held for
military, naval, Air Force, or Coast Guard
purposes, including naval petroleum reserve
Pub. L. 85-508, 72 Stat. 347. The Court concluded that this
language "reflects a clear congressional statement that the
United States owned and would continue to own submerged lands
included within the Reserve." Beaufort Sea, 117 S. Ct. at 1910.
Beaufort Sea also involved submerged lands within the
Arctic National Wildlife Refuge, formerly called the Arctic
National Wildlife Range. The application that affected the
withdrawal of the range described its boundary as beginning from
"the line of extreme low water on the Arctic Ocean" at the
Canadian Border and following "westerly along the said line of
extreme low water, including all offshore bars, reefs and
islands." Id. at 1914. The Court held that the range included
submerged lands encompassed within these boundaries,
distinguishing the range from Utah Lake and Montana on grounds
similar to the grounds on which the National Petroleum Reserve
was distinguished from those cases, namely that the boundary
expressly referred to coastal features and that the navigable
waters within the boundaries of the range were an important part
of the wildlife habitat which the range was designed to protect.
Id. at 1914-15.
The Court then addressed the second question required
by Utah Lake, whether the United States indicated an intent to
defeat the future state's title to the submerged lands included
with the range. The Court found such an intent in section 6(e)
of the Statehood Act, which reserved from transfer to the state
"lands withdrawn or otherwise set apart as refuges or
reservations for the protection of wildlife."10 Id. at 1916-17.
C. The 1909 Reservation Did Not Include Submerged Lands.
With respect to the first Utah Lake inquiry -- whether
the 1909 withdrawal included submerged lands -- the Defendants
argue that it did because submerged lands are encompassed within
the boundary of the withdrawal. They contend that the term
"public lands"has "consistently been held under Alaska law to
include 'land under water,'"citing United States v. Alaska, 423
F.2d 764, 766 (9th Cir. 1970) (Tustumena Lake). Further, they
submit that "the intention of creating the Tongass National
Forest would be defeated"if submerged lands were not included
within the withdrawal. The State contends that submerged lands
were not included within the 1909 proclamation, because the
proclamation does not "make plain an intention to include
submerged lands." The State argues that the term "public lands"
does not ordinarily include submerged lands unless another
meaning is inferable. The State also contends that the fact that
the boundaries of the Tongass encompass submerged lands is in
itself unimportant, because the western boundary of the
proclamation was drawn as a matter of convenience "in order to
easily describe the inclusion of numerous islands and the rugged
coastline." Finally, the State submits that the purpose of the
withdrawal does not require submerged lands.
With respect to the second Utah Lake question --
whether there was a clear intent to defeat a future state's title
-- the Defendants argue that such an intent was expressed in the
proviso in section 6(e) of the Statehood Act excepting the
transfer of lands "withdrawn or otherwise set apart as refuges or
reservations for the protection of wildlife." The Defendants
also argue that "[a]ll lands within the boundaries of the Tongass
National Forest had been expressly retained by the United States
upon Alaska's statehood and therefore were not granted to the
state under the Submerged Lands Act." The State responds that
the proviso of section 6(e) of the Statehood Act relied on by the
Defendants does not apply, since the Tongass National Forest is
not "specifically used for the sole purpose of conservation and
protection of the fisheries and wildlife of Alaska,"nor was it
withdrawn as a refuge or reservation for the protection of
wildlife. Further, the State argues that no other provision of
the Alaska Statehood Act expressly retains the submerged lands
within the boundaries of the Tongass National Forest as property
of the United States.
We conclude that the tidelands and lands underlying the
coastal waters of the Tongass were conveyed to the State of
Alaska at statehood under the equal footing doctrine and the
Submerged Lands Act. Our discussion of the points argued by the
1. The withdrawal does not require submerged lands
for the achievement of its purposes.
Although the submerged lands are included within the
exterior boundaries of the Tongass, there is no indication, much
less a clear indication, that they were intended to be included
within the 1909 Tongass withdrawal. The withdrawal was governed
by the Organic Administration Act of June 4, 1897, Ch. 32, Stat.
34 (codified at 16 U.S.C. 473 et seq). The Organic
Administration Act provided in part:
all public lands that may hereafter be set
aside and reserved as national forests under
said section, shall be as far as
practicable controlled and administered in
accordance with the following provisions. No
national forest shall be established, except
to improve and protect the forest within the
boundaries, or for the purpose of securing
favorable conditions of water flows, and to
furnish a continuous supply of timber for the
use and necessities of citizens of the United
Ch. 2, 1, 30 Stat. 34 (codified as amended at 16 U.S.C. 475).
There were thus no more than three purposes justifying a
withdrawal: "to improve and protect the forest,""to conserve the
water flows, and to furnish a continuous supply of timber."12 Id.
Conveyance of the submerged lands of the Tongass was not
necessary to achieve these purposes. Use of coastal waters and
tidelands may be necessary or useful to the harvest and transport
of timber. However, the transfer of title of the submerged lands
and tidelands to the State would not prevent such uses.13 See
Utah Lake, 482 U.S. at 208 (transfer of title of the bed of Utah
Lake "would not necessarily prevent the federal government from
subsequently developing a reservoir or water reclamation project
at the lake in any event").14
2. The term "public land" in the proclamation
referred only to uplands.
The State is correct that generally the term "public
land" refers to uplands, unless the context of its usage
otherwise requires a different meaning.15 The term "public land"
as used in the proclamation necessarily has the same meaning as
"public lands"has in the Organic Administration Act of 1897, and
in the act which it limited, the Creative Act of 1891. Thus even
if there is a different and more expansive meaning of public
lands in the context of Alaska land law,16 that meaning could not
have been used in the proclamation, for the proclamation would
then have exceeded the authority of the act. Further, the term
"public lands"in the Creative Act explicitly refers to uplands:
the President is authorized to withdraw public lands "wholly or
in part covered with timber or undergrowth." Creative Act of
March 3, 1891, ch. 561, 26 Stat. 1103 (codified as amended at 16
U.S.C. 471 (repealed 1976)).
3. The western boundary of the Tongass is a boundary
We agree with the State's argument that the western
boundary of the Tongass established by the 1909 proclamation is
merely a boundary of convenience. It is drawn as it is in order
to avoid the difficult task of describing the hundreds of islands
and islets which constitute the western Tongass, which extends
some 300 miles from Cape Bingham on the north to Cape Munzon on
the south. Except as a matter of descriptive convenience,
President Roosevelt could have had no conceivable purpose for
including, for example, the open ocean 60 miles west of Cape
Additionally, ANILCA extended the boundaries of the
Tongass National Forest, and yet stated, "But the boundaries of
areas added to the . . . National Forest Systems shall, in
coastal areas not exceed seaward beyond the mean high tide line
to include lands owned by the State of Alaska." 16 U.S.C.
3103. Thus in extending the boundaries of the Tongass, Congress
did not intend to include even the tidelands of the Tongass.
This reflects Congress' understanding that submerged lands were
not included in the original reservation.
4. The second Utah Lake inquiry is moot.
Our conclusion that submerged lands within the Tongass
were not withdrawn by the proclamation moots the second Utah Lake
question, which is whether there was a clear intent to defeat the
future State of Alaska's title to them. We observe, however,
that there is nothing in the Statehood Act which clearly
expresses such an intent. Section 6(e) of the Statehood Act does
not apply, since the Tongass was not withdrawn as a refuge or
reservation for the protection of wildlife, nor is it
"specifically used for the sole purpose of conservation and
protection of the fisheries and wildlife of Alaska." Further, we
have been cited to no other provision of the Statehood Act, nor
to any other act, indicating an intention to withhold from the
State title to the submerged lands of the Tongass.
Based on the foregoing we conclude that the submerged
coastal lands and tidelands within the boundaries of the Tongass
are the property of the State of Alaska, and therefore the
Defendants' argument that their conduct was governed by ANILCA
1 Herring roe on kelp may be taken under a subsistence
fishing permit. 5 AAC 01.730(a). The sale of subsistence
herring roe on kelp is prohibited by 5 AAC 01.010(d). The taking
of herring roe on kelp for commercial purposes can be conducted
only under a permit issued pursuant to 5 AAC 27.055. None of the
Defendants had a commercial permit.
2 Daryl and Loren James each had permits for 32 pounds of
herring roe on kelp. Lillian Charles and Embert James had permits
for 158 pounds of herring roe on kelp. George James did not have
a permit. The permits, including that of Margaret Lauth-Allen,
who is not a defendant in this case, permitted a total of 538
pounds. The Defendants were in possession of approximately 1,900
3 The United States has not claimed title to the
tidelands or coastal submerged lands of the Tongass. 16 U.S.C.
3103 (1988). See also Subsistence Management Regulations for
Public Lands in Alaska, Subpart A, ___.3(b)(ii) (Jan. 1997)
(Regional Council Review Draft) (subsistence regulations limited
to inland waters of Tongass National Forest). This fact does
not, however, preclude the Defendants from asserting that the
submerged lands are owned by the United States as part of their
argument that the State lacks jurisdiction.
4 The boundaries of the Tongass established by the 1909
proclamation are shown on the appended map.
5 In Totemoff v. State, 905 P.2d 954 (Alaska 1995), we
held, in response to contentions that such waters are "public
lands" because of (a) the federal government's navigational
servitude or (b) federal reserved water rights, that ANILCA does
not apply to navigable waters overlying the coastal sea floor or
tidelands owned by the State. In Alaska v. Babbitt, 72 F.3d 698
(9th Cir. 1995), the Ninth Circuit held that ANILCA does not
apply to navigable waters overlying state lands because of the
federal navigation easement but that it does apply to navigable
waters overlying state land which are subject to a reserved water
right in the federal government. The Defendants here do not
claim that the Tongass coastal waters are public lands because of
the navigational servitude, nor do they contend that the reserved
water rights doctrine applies. Instead, their argument is simply
that the United States holds title to the coastal sea floor
underlying the water where roe which they possessed was
6 The Court resolved this question in favor of the United
States in United States v. Alaska, 117 S. Ct. 1888, 1906 (1997)
7 In this opinion we refer to both as submerged lands.
8 The scope of the Submerged Lands Act includes
tidelands, land underlying navigable inland waters, and coastal
undersea lands. However, the act was not necessary as to the
first two categories, for they were already covered under the
equal footing doctrine.
9 The Submerged Lands Act is expressly incorporated in
the Alaska Statehood Act, Pub. L. 85-508, 6(m), 72 Stat. 343
10 In part, section 6(e) of the Statehood Act provides:
All real and personal property of the
United States situated in the Territory of
Alaska which is specifically used for the
sole purpose of conservation and protection
of the fisheries and wildlife of Alaska . . .
shall be transferred and conveyed to the
State of Alaska by the appropriate Federal
agency: . . . Provided, That such transfer
shall not include lands withdrawn or
otherwise set apart as refuges or
reservations for the protection of wildlife.
. . .
11 The section referred to in the Organic Administration
Act as "said section"was the Creative Act of March 3, 1891, ch.
561, 24, 26 Stat. 1103 (codified as amended at 16 U.S.C. 471
(repealed 1976)). In this act Congress authorized the President
to "set apart and reserve . . . any State or Territory having
public land bearing forests, in any part of the public lands
wholly or in part covered with timber or undergrowth, whether of
commercial value or not, as national forests."
12 In United States v. New Mexico, 438 U.S. 696, 708-09
(1978), the Court held that improvement and protection of the
forest was not a purpose separate from the watershed and timber
supply purposes of the act. The Court describes these purposes
as "limited"and "relatively narrow."
13 Nor has it. Extensive logging has occurred on the
Tongass since statehood, even though the State's title to the
tidelands and submerged lands has not, to date, been challenged
by the United States.
14 Congress passed the Multiple Use Sustained Yield Act of
1960, 74 Stat. 215 (codified at 16 U.S.C. 528 et seq). This
broadened the purposes of the national forests. The 1960 act
It is the policy of Congress that the
national forests are established and shall be
administered for outdoor recreation, range,
timber, watershed, wildlife and fish
purposes. The purposes of sections 528 to
531 of this title are declared to be
supplemental to, but not in derogation of,
the purposes for which the national forests
were established as set forth in the [Organic
Administration Act of 1897].
This act has no effect on this case for Alaska became a state
prior to the act, and the act does not purport to enlarge
existing withdrawals. See United States v. New Mexico, 438 U.S.
696, 713 (1978) ("While we conclude that the Multiple-Use
Sustained-Yield Act of 1960 was intended to broaden the purposes
for which national forests had previously been administered, we
agree that Congress did not intend to thereby expand the reserved
rights of the United States.").
15 There is much authority which supports this
proposition. E.g., Utah Lake, 482 U.S. at 206; Mann v. Tacoma
Land Co., 153 U.S. 273, 284 (1894).
16 Although the Ninth Circuit Court of Appeals in
Tustumena Lake stated, "In construing the pertinent Alaskan
statutes, the courts have consistently held that the words
'public domain,' 'public lands' and 'land,' include land under
water," 423 F.2d at 766, the cases cited by the Circuit in
Tustumena Lake are not inconsistent with the proposition that the
term "public lands"does not ordinarily include submerged lands
because an intent was inferable in each of the cases relied on by
the Circuit that submerged lands be included.