United States v. Alaska 8212 1888

• Decision Date: 23 June 1975
• Docket Number: No. 73,73
• Parties: UNITED STATES, Petitioner, v. State of ALASKA. —1888
• Court: U.S. Supreme Court

422 U.S. 184

95 S.Ct. 2240

45 L.Ed.2d 109

UNITED STATES, Petitioner,

v State of ALASKA.

No. 73—1888.

Argued April 16, 1975.

Decided June 23, 1975.

Rehearing Denied Oct. 6, 1975.

See 423 U.S. 885, 96 S.Ct. 159.

syllabus

Proof held insufficient to establish Cook Inlet as a historic bay, and hence the United States, as against Alaska, has paramount rights to the land beneath the waters of the lower, or seaward, portion of the inlet. Pp. 189-204.

(a) The sparse evidence as to Russia's exercise of authority over the lower inlet during the period of Russian sovereignty is insufficient to demonstrate the exercise of authority essential to the establishment of a historic bay. Pp. 190-192.

(b) Nor was the enforcement of fishing and wildlife regulations under various federal statutes and an Executive Order during the period of United States sovereignty over the Territory of Alaska sufficient in scope to establish historic title to Cook Inlet as inland waters, especially where it appears that the geographic scope of such enforcement efforts was determined primarily, if not exclusively, by the needs of effective management of the fish and game population involved, rather than as an intended assertion of territorial sovereignty to exclude all foreign vessels and navigation. Pp. 192-199.

(c) The mere failure of any foreign nation to protest the authority asserted by the United States during the territorial period is inadequate proof of the acquiescence essential to historic title. It must also be shown that the foreign governments knew or should have known of the authority being asserted, and here the routine enforcement of domestic fish and game regulations was insufficient to inform those governments of any claim of dominion. Pp. 199-200.

(d) The fact that Alaska during its statehood has enforced fishing regulations in the same way as the United States did during the territorial period is likewise insufficient to give rise to historic title to Cook Inlet as inland waters. Pp. 200-201.

(e) Nor is Alaska's arrest of two Japanese fishing vessels in the Shelikof Strait in 1962 adequate to establish historic title. That incident was an exercise of sovereignty, if at all, only over the waters of Shelikof Strait, and even if considered as an asser- tion of authority over the waters of Cook Inlet, the incident was not sufficiently unambiguous to serve as the basis of historic title: Alaska, as against the Japanese Government, claimed the waters as inland waters but the United States neither supported nor disavowed the State's position. And regardless of how the incident is viewed, it is impossible to conclude that Alaska's exercise of sovereignty was acquiesced in by the Japanese Government, which immediately protested the incident and has never acceded to Alaska's position. Pp. 201-203.

497 F.2d 1155, reversed and remanded.

A. Raymond Randolph, Jr., Washington, D.C., for petitioner.

Thomas M. Phillips, Houston, Tex., and Charles K. Cranston, Anchorage, Alaska, for respondent.

Mr. Justice BLACKMUN delivered the opinion of the Court.

The issue here is whether the body of water known as Cook Inlet is a historic bay.¹ The inlet extends northeastward well over 150 miles into the Alaskan land mass, with Kenai Peninsula to the southeast and the Chigmit Mountains to the northwest. The city of Anchorage is near the head of the inlet. The upper, or inner por- tion, of the inlet is not in dispute, for that part is conceded to be inland waters subject to Alaska's sovereignty.

If the inlet is a historic bay, the State of Alaska possesses sovereignty over the land beneath the waters of the lower, or seaward, portion of the inlet. If the inlet is not a historic bay, the United States, as against the State, has paramount rights to the subsurface lands in question.

I

In early 1967 the State of Alaska offered 2,500 acres of submerged lands in lower Cook Inlet for a competitive oil and gas lease sale. The tract in question is more than three geographical miles from the shore of the inlet and is seaward more than three miles from a line across the inlet at Kalgin Island, where the headlands are about 24 miles apart, as contrasted with 47 miles at the natural entrance at Cape Douglas. In the view of the United States, the Kalgin Island line marks the limit of the portion of the inlet that qualifies as inland waters. The United States, contending that the lower inlet constitutes high seas, brought suit in the United States District Court for the District of Alaska to quiet title and for injunctive relief against the State. ² Alaska defended on the ground that the inlet, in its entirety, was within the accepted definition of a 'historic bay' and thus constituted inland waters properly subject to state sovereignty. Alaska prevailed in the District Court. 352 F.Supp. 815 (1972). The United States Court of Appeals for the Ninth Circuit affirmed with a per curiam opinion. 497 F.2d 1155 (1974). We granted certiorari because of the importance of the litigation and because the case presented a substantial question concerning the proof necessary to establish a body of water as a historic bay. 419 U.S. 1045, 95 S.Ct. 616, 42 L.Ed.2d 639 (1974).

II

State sovereignty over submerged lands rests on the Submerged Lands Act of 1953, 67 Stat. 29 (1953), 43 U.S.C. §§ 1301—1315.³ By this Act, Congress effectively confirmed to the States the ownership of submerged lands within three miles of their coastlines.⁴ See United States v. Maine, 420 U.S. 515, 95 S.Ct. 1155, 43 L.Ed.2d 363 (1975). 'Coast line' was defined in terms not only of land but, as well, of 'the seaward limit of inland waters.'⁵ The term 'inland waters' was left undefined.

In United States v. California, 381 U.S. 139, 161—167, 85 S.Ct. 1401, 1414—1416, 14 L.Ed.2d 296 (1965), the Court concluded that the definitions provided in the Convention on the Territorial Sea and the Contiguous Zone, (1964) 2 U.S.T. 1606, T.I.A.S. No. 5639, should be adopted for purposes of the Submerged Lands Act. See also United States v. Louisiana (Louisiana Boundary Case), 394 U.S. 11, 35, 89 S.Ct. 773, 787, 22 L.Ed.2d 44 (1969). Under Art. 7 of the Convention,⁶ and particularly 5 and 6 thereof, a bay with natural entrance points separated by more than 24 miles is considered as inland water only if it is a 'historic' bay. Since the distance between the natural entrance points to Cook Inlet is greatly in excess of 24 miles, the parties agree that Alaska must demonstrate that the inlet is a historic bay in order successfully to claim sovereignty over its power waters and the land beneath those waters.⁷

The term 'historic bay' is not defined in the Convention. The Court, however, has stated that in order to establish that a body of water is a historic bay, a coastal nation must have 'traditionally asserted and maintained dominion with the acquiescence of foreign nations.' United States v. California, 381 U.S., at 172, 85 S.Ct., at 1419. Furthermore, the Court appears to have accepted the general view that at least three factors are significant in the determination of historic bay status: (1) the claiming nation must have exercised authority over the area; (2) that exercise must have been continuous; and (3) foreign states must have acquiesced in the exercise of authority. Louisiana Boundary Case, 394 U.S., at 75 and 23—24, n. 27, 89 S.Ct., at 808, and 781.⁸ These were the general guidelines for the District Court and for the Court of Appeals in the present case.

III

The District Court divided its findings on the exercise of authority over lower Cook Inlet into three time periods, namely, that of Russian sovereignty, that of United States sovereignty, and that of Alaskan statehood. We discuss these in turn.

A.

The evidence that Russia exercised authority over lower Cook Inlet as inland waters is understandably sparse. The District Court, nonetheless, concluded that 'Russia exercised sovereignty over the disputed area of Cook Inlet.'⁹ The court based this conclusion on three findings. First, by the early 1800's there were four Russian settlements on the shores of Cook Inlet. Second, about 1786, an attempt by an English vessel to enter the inlet drew a volley of cannon fire from a Russian furtrader in the vicinity of Port Graham. Third, in 1821, Tsar Alexander I issued a ukase that purported to exclude all foreign vessels from the waters within 100 miles of the Alaska coast. S.Exec.Doc.No. 106, 50th Cong., 2d Sess., 204—205 (1889).

We feel that none of these facts, as found by the District Court, demonstrate the exercise of authority essential to the establishment of a historic bay. The presence of early Russian settlements on the shores of Cook Inlet certainly demonstrates the existence of a claim to the land, but it gives little indication of the authority Russia may have exerted over the vast expanse of waters that constitutes the inlet. The incident of the fur trader's firing on an English vessel near Port Graham might be some evidence of a claim of sovereignty over the waters involved, but the act appears to be that of a private citizen rather than of a government official.¹⁰. In the absence of some evidence that the trader was acting with governmental authority, the incident is entitled to little legal significance. Moreover, under the then-common Cannon Shot Rule, the firing of cannon from shore was wholly consistent with the present position of the United States that the inland waters of Alaska near Port Graham are to be measured by the three-mile limit. ¹¹ Finally, the imperial ukase of 1821 is clearly inadequate as a demonstration of Russian authority over the waters of Cook Inlet because shortly after it had been issued the ukase was unequivocally withdrawn in the face of vigorous protests from the United States and England.¹²

B

In reviewing the period of United States sovereignty over the Territory of Alaska,¹³ the District Court found that there had been five separate instances in which the...