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

I. 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.

II. BACKGROUND

A. 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 the federal government had previously and expressly retained.

In the abstract, sections 6(e) and 6(m) are easily digested and understood. However, when applied to lands that have been administratively segregated but not formally withdrawn, the effect of the Statehood Act is difficult to discern. Is a temporary segregation synonymous with a withdrawal or setting apart as a refuge or reservation? Is temporary segregation synonymous with an express retention? Though roughly stated, these are the principle legal issues raised in United States v. Alaska. In resolving these issues, the Supreme Court undoubtedly examined the events that ensued in the next forty years.

3. Administrative Reaction: The 1960 Withdrawal

The Interior Secretary did not act upon the Bureau of Sport Fisheries and Wildlife's 1957 application, aside from noting its receipt, until after Alaska became a state. In December of 1960, Interior Secretary Fred Seaton announced a formal withdrawal of the identified lands for the purpose of preserving the "unique wildlife, wilderness and recreational values" of northeastern Alaska.(36) The Interior Secretary's announcement is significant for two reasons. First, the 1960 withdrawal established the Arctic National Wildlife Range (Range), the precursor to modern-day ANWR. Second, and perhaps more importantly, the announcement suggests that the Department of the Interior considered the subject lands available for withdrawal. That is to say, the federal government apparently took the position in 1960 that, when Alaska became a state, it had already reserved the lands in question.

B. Federal Management of ANWR, 1960-1997

In practical terms, Interior Secretary Seaton's 1960 withdrawal was a nonevent on the arctic coastal plain. As noted above, the purpose of the withdrawal was to preserve the wild character of the region while permitting the continued harvest of regional wildlife pursuant to state and federal regulation.(37) In effect, the withdrawal merely served to preserve the status quo. At the time of the withdrawal, the region's amazing mineral wealth was completely unknown. It was not until 1968 that the Atlantic-Richfield Company discovered 9.8 billion barrels of oil just west of the Refuge at Prudhoe Bay.(38) Consequently, federal land managers must have been most concerned with fulfilling the nations' international treaty obligations respecting coastal plain wildlife. As of 1960, the United States had entered into two international treaties respecting migratory birds that inhabited the coastal plain, one with Canada and the other with Mexico.(39) Aside from these few obligations, however, resource management issues on the plain must have been relatively local in character.

That situation changed by the late 1970s. The sudden explosion of mineral exploration and development in the region following the Prudhoe Bay discovery caused Congress to reevaluate the safety and status of federal land holdings in northern Alaska.(40) Chief among the land holdings considered by Congress was the Arctic National Wildlife Range.

Congress responded to the regional oil boom by enacting the Alaska National Interest Lands Conservation Act (ANILCA) in 1980.(41) Through ANILCA, Congress attacked mounting development pressure on two fronts. First, Congress elevated the Range to Wildlife Refuge status and expanded its size to the present nineteen million acres.(42) In doing so, Congress reiterated the conservation purposes announced by Interior Secretary Seaton in 1960.(43) Congress also prohibited mineral development within the refuge absent express congressional consent.(44) Second, Congress ordered the Secretary of the Interior to prepare a comprehensive assessment of the potential impact of mineral development on coastal plain ecosystems and wildlife.(45) Thus, Congress sought to better inform its future management decisions.

The impact assessment ultimately prepared by the Department of the Interior is worthy of note because it has become the centerpiece of arguments by resource conservationists and development advocates alike. In 1987, Interior Secretary Donald Hodel lodged his Coastal Plain Resource Assessment (Assessment) with Congress.(46) The Assessment detailed the results of nearly sixty individual field studies conducted by the Department of the Interior between 1981 and 1985.(47) These studies catalogued the coastal plain's ecology and wildlife resources and delineated habitats that might be adversely affected by mineral development.(48) Resource conservation advocates commonly cite to the factual findings contained in the Assessment as proof of the need for a continued ban on oil and gas Development.(49)

Despite finding that the arctic coastal plain contained a number of fragile ecosystems, Interior Secretary Hodel recommended that Congress permit development of the Refuge.(50) This recommendation caused conservationists a good deal of concern. Even the Canadian government lobbied Congress to reject the recommendation, citing the adverse effects that development might have on subsistence resources shared by North American native populations.(51) The strongest argument against development was made quite by accident, however. In March of 1989, the supertanker Exxon Valdez allided with a submerged reef in Alaska's Prince William Sound, spilling an estimated eleven million gallons of north slope crude oil.(52) At least temporarily, this spill solidified public opposition to development within ANWR.(53)

Congress will soon face the question whether to open ANWR to mineral development once again,(54) and Congress may yet decide to allow drilling within the Refuge. The federal government is certainly not immune to the lure of lease royalties.(55) Nevertheless, if Congress decides to permit drilling in ANWR, it is important to note that the decision will be made at the national, rather than the state, level. This distinction is important because it ensures that, at least in a political sense; the entire nation will have a say in the fate of ANWR. The Supreme Court was undoubtedly aware of this fact when it rendered its decision in United States v. Alaska.

III. THE SUPREME COURT'S RESOLUTION OF UNITED STATES V. ALASKA

United States v. Alaska began in the Supreme Court. In 1979, the federal government filed an original action to determine ownership of various submerged lands along Alaska's arctic coast.(56) In response, Alaska filed a counterclaim seeking to quiet title to submerged lands within ANWR. Because of the complex nature of the substantive issues involved, the Court appointed a Special Master to receive testimony and recommend a decision.(57) The Special Master lodged his recommendations with the Court in April of 1996 after six years of testimony and ten years of deliberation.(58) This Part discusses the Special Master's recommendation and the reasons given by Justice O'Connor, writing for a majority of the Court, for rejecting that recommendation. This Part concludes by arguing that Justice O'Connor's opinion fails to convincingly rebut the Special Master's legal conclusions.

A. The Special Master

In 1996, the Special Master recommended that the Supreme Court rule in favor of Alaska concerning ownership of submerged lands within ANWR.59 The Special Master based his recommendation primarily on an analysis of the interplay between the 1957 application for withdrawal filed with the Interior Secretary and the grant provisions of the Alaska Statehood Act of 1958 (Statehood Act or Act).

In particular, the Special Master asked whether the Interior Secretary's receipt of the application--which caused a temporary segregation under existing regulations--meant that lands identified therein were "withdrawn or otherwise set apart as refuges or reservations" under section 6(e) of the Statehood Act.(60) The Special Master paid particular attention to the term "refuge or reservation." Finding that the subject lands were part of neither a refuge nor a formal reservation when the Statehood Act grants took effect, the Special Master concluded that a mere segregation of the lands was insufficient to reserve federal title.(61)

Additionally, the Special Master concluded that the administrative segregation affected in 1957 could not "retain[ ]" any land for the federal government as that term is used in the Submerged Lands Act.(62) The Special Master reasoned that, if a mere application for withdrawal was sufficient to retain lands under the Submerged Lands Act, then any administrative agency within the Department of the Interior could, in practice, effect a withdrawal as against the grantee state. Yet only the Interior Secretary, not subservient agencies, enjoyed the delegated authority to make a withdrawal.(63) Accordingly, the Special Master concluded that Congress intended the term "expressly retained" to apply only to lands that were formally withdrawn by the Interior Secretary.(64) Because the submerged lands in question were not yet withdrawn at the time of statehood, the Special Master recommended that the Supreme Court deny any claim that the federal government reserved those lands prior to statehood.

B. The Supreme Court

The Special Master's recommendation was rejected by a majority of the Court. Six out of nine justices agreed with the United States that the Department of the Interior effectively reserved the lands in question before Alaska became a state.(65) Justice O'Connor wrote for the majority.

Like the Special Master, Justice O'Connor focused her analysis on the language of section 6(e) of the Statehood Act.(66) Unlike the Special Master, however, Justice O'Connor attached controlling weight to the term "withdrawn or otherwise set apart." Justice O'Connor reasoned that, in order to avoid redundancy, "otherwise set apart" must be interpreted to mean something different than "withdrawn."(67) If "withdrawn" is interpreted to mean a state of permanent removal from operation of the public land laws, then "otherwise set apart" must describe a status that is somehow less protective. According to Justice O'Connor, "otherwise set apart" must describe a temporary removal or segregation--the precise status of the subject lands prior to 1958.(68) Accordingly, the Court ruled that the federal government reserved the submerged lands in question when Alaska entered the Union.(69)

Justice O'Connor attempted to rebut the Special Master's statutory interpretation by simply downplaying the importance of the language on which the Special Master based his argument. Referring to Justice Thomas' dissent--which essentially adopted the logic and reasoning of the Special Master--Justice O'Connor asserted that reservation under section 6(e) of the Statehood Act does not require creation of a formal refuge.(70) Justice O'Connor assumed that any casual segregation would suffice as a reservation under the Act, so long as land was set apart. However, she declined to elaborate on the basis for this assumption. Consequently, Justice O'Connor's rebuttal offers little more than a bald assertion that her interpretation of the Statehood Act is somehow superior to that offered by the Special Master and the dissent.

The Court's apparent failure to rebut the Special Master's legal arguments can not be attributed to poor reasoning or writing, however. Section 6(e) of the Statehood Act is simply capable of more than one plausible interpretation. Depending upon which few words are given controlling weight, the Act can be interpreted to support the findings of either the Special Master or the majority. In short, the Act is ambiguous. Accordingly, one must look beyond the purely legal arguments to discover the true basis for the Court's decision favoring the federal government: one must look to the underlying equities of the case.

IV. ARCTIC EQUITY?: WHY THE COURT FAVORED THE FEDERAL GOVERNMENT

At first blush, there appears scant room for equitable thinking in a dispute so rife with statutory mandates. Yet it is the very abundance of conflicting statutory law which necessitates a retreat to equity. Because the Alaska Statehood Act is hopelessly ambiguous, the individual justices of the Supreme Court must have been at least tempted to inform their respective statutory analyses with a peek at the history and politics behind ANWR. This Part of the Note suggests a few equitable factors that the Court may have taken into account in ruling in favor of the federal government. The Part begins, however, by discussing one canon of statutory construction that also supports the Court's decision.

A. Public Land Grant Construction

Undoubtedly, the strongest and most conventional support for the Court's decision is the common notion that courts should construe ambiguous public land grants in favor of the federal grantor. The Supreme Court has long recognized this notion as a canon of statutory construction.(71) The Court generally applies the canon where it perceives a need to protect the national interest in maintaining public lands from particular grantees who seek additional rights beyond what was expressly granted.(72) For example, the Court has used the canon to protect federal title to minerals underlying railroad grants and to exclude water rights from mining claims.(73)

The Court could have applied the canon to the present dispute. In this case, Alaska appears to be milking the Statehood Act's grant provisions for all they are worth. Recall that the Statehood Act is essentially a massive federal land grant.(74) Through the Statehood Act, Alaska received nearly thirty percent of the public lands available in 1958--over one hundred million acres.(75) The State cannot seriously claim that it was shortchanged. Nor can it disparage the quality of land (in terms of natural resource wealth) that it received. Since 1958, Alaska has enjoyed fee ownership of the lion's share of all public lands previously used by the federal government in managing the State's vast fish and wildlife resources.(76) Alaska has also won a modern-day bonanza by leasing its north slope land holdings for petroleum exploration and development.(77) Yet Alaska wanted even more.

Alaska wanted the Supreme Court to construe the grant provisions of the Statehood Act very narrowly against the federal government. Specifically, Alaska asked the Court to interpret the reservation provisions found in sections 6(e) and 6(m)(78) to preclude the possibility that the federal government reserved submerged lands within ANWR when Alaska became a state.(79) In making this request, Alaska wore its heart on its sleeve. The State defiantly flaunted its plans to open the disputed lands to oil and gas development, despite the known threat that development poses to this unique and fragile ecosystem.(80)

The Court denied Alaska's request. Without expressly recognizing the land grant canon, the majority adopted an undeniably cautious approach. The majority construed the Statehood Act's reservation provisions broadly, ensuring that nothing passed to the State of Alaska that was not clearly and unequivocally granted. This is the central purpose of the land grant canon: to protect our national interest in federal public lands from the more selfish designs of federal grantees, including states such as Alaska.

Standing alone, the cautious approach counseled by this canon of construction and evidently adopted by a majority of the Court fully explains the Court's ultimate decision favoring the federal government. Nevertheless, additional explanations may yet exist.

B. The Importance of Possession

The fact of federal possession may very well have influenced the Supreme Court in rendering its decision. Since the dawn of Alaska's statehood, the federal government has possessed the lands directly at issue in this case. These are submerged lands along the coast of ANWR, lands that provide critical habitat for coastal plain wildlife including polar bears, arctic foxes, seals, and whales.(81) Additionally, the Court may have been concerned about lands that were only indirectly at issue. As Justice O'Connor's majority opinion notes, the Special Master's interpretation of the Alaska Statehood Act "arguably calls into question federal ownership of uplands as well as submerged lands within the Range."(82) Thus, in rejecting the Master's recommendation, the Court may have been influenced by the past forty years of federal management of the upland Wildlife Range. If that is indeed the case, then the Court's decision reserving title in the federal government is amply explained by a number of possession-related concepts.

1. Federal Possession

Under American common law, the mere possession of chattel or real property may be sufficient to vest the possessor with ownership privileges. This principle is best illustrated by the holding in Pierson v. Post, the well-known case involving a fox hunter whose prize is captured by another just before the kill.(83) In that case, the court held that the distraught hunter had no cause of action for conversion because the hunter had not reduced the fox to his possession and thus announced to the world his ownership right.(84) This result reflects the general rule that possession, coupled with a clear declaration of ownership, can give rise to an enforceable ownership right. Since Pierson v. Post, courts have extended the application of this rule to cover disputes over the possession of oil and gas as well as disputes over the surface title to land.(85) Thus, the importance of possession has long been recognized under American common law.

Of course, common law principles of property ownership that are two hundred years old may seem anachronistic in a world dominated by statutory law. The federal government cannot claim, by mere possession, land that it has alienated by statute. Yet the concept of common law possession may not be entirely irrelevant. Due to its important role in the development of American common law, possession may yet be significant where statutory language is ambiguous.(86)

Such is the case in United States v. Alaska. As discussed above, the grant provisions contained in the Alaska Statehood Act are patently ambiguous.(87) In this circumstance, our common law tradition permits the Court to step back from the statutory morass and examine the broader equities of the case. In particular, the common law supports an examination of the parties' respective possessory claims.

Viewed in terms of possession, the present dispute appears too lopsided to be properly labeled a dispute. The federal government has exercised primary administrative authority over the coastal plain since Alaska became a state in 1958.(88) Although Alaska does regulate for the protection of the region's fish and wildlife, Alaska's authority to do so derives directly from the federal government.(89) It is the federal government, and not Alaska, that is principally responsible for the current health and character of the coastal plain. It is the federal government that has thus far banned oil and gas development. In doing so, the federal government has clearly announced its possessory claim. Consequently, it is the federal government that has earned a common law ownership interest in the coastal plain.

2. Federal Forfeiture?

Converse to the rule that the common law favors the party in possession of land is the maxim that equity loathes a forfeiture. In at least one recent public lands case, the Supreme Court demonstrated its sensitivity to the inherent unfairness of statutory interpretations which produce forfeitures. In Leo Sheep Co. v. United States,(90) the Court considered whether the federal government owned an implied easement to construct a road across lands that Congress granted to the Union Pacific Railroad in 1862. After reviewing the history surrounding the disputed grant, the Court held that Congress did not intend to reserve an implied easement.(91) The Court appears to have responded to the fact that, had it found an easement, it would have produced a forfeiture potentially affecting over 150 million acres of land held in fee by the Railroad and its successors for one hundred years.(92)

The Court may have had similar concerns when it decided United States v. Alaska. As discussed above, the federal government has administratively and physically possessed the arctic coastal plain for the past forty years.(93) Since 1980, this fact has been quite meaningful: literally the difference between a vast, unspoiled wilderness and a second Prudhoe Bay. A number of environmental advocacy groups operating in Alaska lodged an amicus brief with the Supreme Court in order to make this very point.(94) By emphasizing the exceptional wilderness character of the coastal plain and the State's pending plans for mineral development, the amicus parties highlighted the dramatic consequences of a ruling favoring Alaska.(95) The Court may have purposefully avoided this drama by ruling for the federal government.

3. Alaska's Acquiescence 

One final possession-related concept that may explain the Court's decision in United States v. Alaska is the doctrine of acquiescence. Acquiescence is an equitable doctrine that the Supreme Court has historically applied in resolving boundary disputes between states.(96) The doctrine provides that, where one state has long acquiesced in the possession of its territory by another state, the first state's legal title may be superseded by the second state's equitable claim.

The case of California v. Nevada(97) illustrates the Court's application of this principle. In that case, Nevada complained that California unlawfully occupied a substantial chunk of territory along the Nevada-California border, land that legally belonged to the State of Nevada.(98) Applying the doctrine of acquiescence, the Supreme Court held that California's technical boundary violation was irrelevant in light of the fact that, for one hundred years, Nevada had acquiesced in California's possessory claim.(99) The driving force behind the Court's application of this doctrine was the need to lend finality to a boundary claim in which both parties had long acquiesced.(100) Stated another way, the purpose of the doctrine is to avoid equitable forfeitures that would surely result if parties were permitted to stand on aged legal rights.

This principle can be extended to cover disputes between states and the federal government. Where federal public land grants are concerned, the federal grantor and the state grantee both have an interest in finality. The state needs to know that its title to the land is clear so that it can realize the purpose of the grant.(101) Similarly, the federal government needs to know whether it has retained any interest in the land so that its agencies and subsequent assignees can carry out their duties and obligations.(102)

As a practical matter, therefore, the Supreme Court may have ruled for the federal government in United States v. Alaska because the state waited too long before pressing its legal claim to the coastal plain. Arguably, the state's legal claim arose in 1958, when the Statehood Act's grant provisions took effect. At that time, the state could have challenged the regulatory jurisdiction of the Bureau of Sport Fisheries and Wildlife. Similarly, the state could have challenged the authority of Interior Secretary Seaton to announce a formal withdrawal of the coastal plain in 1960. But Alaska took no action. Either by choice or by mere misstep, the state failed to press its legal claims to the coastal plain until the United States initiated suit in 1979. By that time, the federal government's desire to create a permanent wilderness refuge on the coastal plain was evident, and the equities already favored continued federal ownership.(l03) Moreover, since 1980, the federal government has strengthened its equitable position through its continued dedication of the Refuge to conservation purposes.(104) These facts must, at the very least, have caused the Supreme Court to frown upon Alaska's belated attempt to recover the coastal plain.

V. CONCLUSION

United States v. Alaska is a significant case for persons interested in the Arctic National Wildlife Refuge. The Supreme Court's decision favoring the federal government means, in practical terms, that the Refuge will likely remain unspoiled by the ravages of mineral exploration and development in the coming years. If drilling eventually does occur, it will occur as a consequence of national decision making--a sensible result given the nation-wide debate that has surrounded ANWR for the past few decades.

United States v. Alaska is also significant for persons who are not particularly interested in ANWR, but who are interested in public land law. The case illustrates the continuing vitality of seemingly outdated doctrines such as possession, forfeiture, and acquiescence. Particularly where statutory language is vague or ambiguous, these doctrines may still sway judicial sentiment. This fact was amply demonstrated by the amicus parties, whose vivid prose juxtaposed the wild beauty of the Refuge against Alaska's continuing quest for oil revenues, thus giving the Court a reason to care about who won the case. By emphasizing the practical consequences of their legal arguments, future practitioners of public land law may achieve similar results.

As legal precedent, however, the Court's decision is troubling. It fails to provide a fully satisfactory explanation for the conclusions it purports to support. This Note is intended to help remedy that problem. In particular, this Note explains that the Supreme Court was compelled to rule for the United States because of the Court's long tradition of construing public land grants in favor of the federal grantor as well as the past forty years of federal management on the arctic coastal plain--and everything that federal management has come to represent.

(1) Anthony R. Chase, Imminent Threat to America's Last Great Wilderness, 70 DENV. U. L. REV. 43 (1992); Should We Develop ANWR?, ENV'T. FORUM, May-June 1989, at 14.

(2) See infra Part II.

(3) See generally DEBBIE S. MILLER, MIDNIGHT WILDERNESS: JOURNEYS IN ALASKA'S ARCTIC NATIONAL WILDLIFE REFUGE (1990) (describing the precarious balance of wilderness conservation and petroleum development currently attempted on Alaska's north slope); WILLIAM O. DOUGLAS, MY WILDERNESS (1960) (describing the Justice's wonder at journeying through the recently created wildlife range).

(4) The Alaska National Interest Lands Conservation Act of 1980 prohibits mineral leasing and development within ANWR without the express consent of Congress. 16 U.S.C. [sections] 3143 (1994). For a brief account of the history of mineral exploration within the Refuge, see Patrick Lee, Alaska Oil Refuels an Old Debate, L.A. TIMES, Sept. 15, 1991, at Al.

(5) Author of EARTH IN THE BALANCE: ECOLOGY AND THE HUMAN SPIRIT (1992), Vice President Gore is decidedly on the green side of the Clinton administration, which has expressed its adamant opposition to any legislation opening the Refuge to oil development. Clinton Meets with Alaskans on ANWR, PUB. LANDS NEWS, Mar. 21, 1996, at 9; Bruce Babbitt, Comment: Drilling Arguments Don't Wash, ANCHORAGE DALLY NEWS, Sept. 11, 1995, at B6.

(6) Ben Spiess, Alaska Faces Budget Gap Despite Big Fund Growth, WALL ST. J. EUR., May 27, 1998, at 4.

(7) See generally Senators Haven't Endorsed Yet Young's New ANWR Money Plan, PUB. LANDS NEWS, Apr. 18, 1996, at 7 (discussing recommendation by the House Resources Committee for allocation of revenue potentially generated by ANWR oil development); Caroline A. Leonard, Preservation of the Arctic National Wildlife Refuge: A Theoretical Approach, 16 WM. & MARY J. ENVTL. L., 45, 50 (1991) (noting that "[a]ll three members of the Alaskan congressional delegation support drilling in the Refuge.") Sen. Frank Murkowski (R-Alaska) and Rep. Don Young (R-Alaska), both staunch supporters of mineral development, are expected to reintroduce legislation aimed at opening ANWR to development in the near future. ANWR Bills Emerging Again, PUB. LANDS NEWS, Apr. 17, 1997, at 8.

(8) The permanent fund dividend is an annual dividend that the State of Alaska pays to its residents. The dividend averages approximately one thousand dollars per resident, and is derived from the annual interest earned on Alaska's past oil revenues. The dividends have been the sacred cow of Alaskan politics since the state first began to pay dividends in the mid-1980's.

(9) 117 s. ct. 1888 (1997). For a brief history of the dispute, see id. at 1891-95.

(10) As a preliminary matter, the Supreme Court ruled that the submerged lands at issue in this case are located within the bounds of the Refuge. Id. at 1916.

(11) Id. at 1918-19.

(12) Alaska received over one hundred million acres of public land. Alaska Statehood Act of 1958, Pub. L. No. 85-508, [sections] 6, 72 Stat. 339, 340-43.

(13) Reorganization Plan No. 3 of 1946, [subsections] 402-403, 3 C.F.R. 1065, 1067-68 (1943-1948), reprinted in 5 U.S.C. App. 1451, 1452-3 (1994).

(14) 5 U.s.a. App. 1451, 1455 (1994).

(15) 43 C.F.R. [sections] 295.11(a) (1964). In pertinent part, the regulations provided that: The noting of the receipt of the application ... shall temporarily segregate such lands from settlement, location, sale, selection, entry, lease, and other forms of disposal under the public land laws, including the mining and mineral laws, to the extent that the withdrawal or reservation applied for, if effected, would prevent such forms of disposal.

(16) Id. [sections] 295.10.

(17) Id. [sections] 295.11(a).

(18) Application, in letter form, from the Director of the Bureau of Sport Fisheries and Wildlife to the Secretary of the Interior (Nov. 18, 1957), United States v. Alaska, 517 U.S. 1207 (1996) (citing REPORT OF THE SPECIAL MASTER at 447 n. 1) (on file with author) [hereinafter MASTER'S REPORT].

(19) See Notice of Proposed Withdrawal and Reservation of Lands, 23 Fed. Reg. 364 (Jan. 21, 1958) (noting receipt of the Bureau's application and describing the land identified therein).

(20) Memorandum from D.H. Janzen, Director of the Bureau of Sport Fisheries and Wildlife, to the Bureau of Land Management (Nov. 7, 1957), reprinted in MASTER'S REPORT, supra note 18, at 487-88. The Bureau of Sport Fisheries and Wildlife attached this memorandum to the application that it submitted to the Interior Secretary on November 18, 1957.

(21) See supra note 15 and accompanying text.

(22) See infra note 36 and accompanying text.

(23) Alaska Statehood Act of 1958, Pub. L. No. 85-508, 72 Stat. 339.

(24) Id. [subsections] 1-3, 72 Stat. at 339.

(25) Id. [sections] 6, 72 Stat. at 340-43.

(26) Id. [sections] 6(e), 72 Stat. at 340-41.

(27) Id. In relevant part, section 6(e) provides that: 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 nor facilities utilized in connection therewith. Id. (emphasis in original).

(28) MASTER'S REPORT, supra note 18, at 464 n. 17. In 1950, acting Interior Secretary Oscar Chapman proposed the current version of section 6(e) in a letter to Senator O'Mahoney (D-Wyo.), the Chairman of the Committee on Interior and Insular Affairs. S. Rep. No. 81-1929, at 13-14 (1950). In this letter, Interior Secretary Chapman explained:

   This proposed amendment would transfer to the State of Alaska the stone
   jurisdiction and control over the fisheries and wildlife therein as are
   possessed and exercised by the existing States within their territorial
   limits and adjacent waters.... Under the language of the proposed
   amendment, the State of Alaska would obtain title to all real and personal
   property of the United States primarily used in the administration of the
   Alaska game law and the Alaska commercial fisheries laws.

Id.

(29) Alaska Statehood Act of 1958 [sections] 6(e), 72 Stat. at 341.

(30) Id. [sections] 6(m), 72 Stat. at 343

(31) 43 U.S.C. [subsections] 1301(a)(2), 1311 (1994).

(32) Alaska Statehood Act of 1946 [sections] 6(m), 72 Stat. at 343. In relevant part, section 6(m) provides that "[t]he Submerged Lands Act of 1953 ... shall be applicable to the State of Alaska and the said State shall have the same rights as do existing States thereunder." Id.

(33) 43 U.S.C. [subsections] 1301(a)(2), 1311 (1994).

(34) United States v. Alaska, 117 S. Ct. 1888, 1893 (1997).

(35) 43 U.S.C. [sections] 1313(a) (1994).

(36) Public Land Order 2214, 25 Fed. Reg. 12,598, 12,598 (Dec. 8, 1960). Note that the order expressly permitted continued hunting and fishing within the Refuge pursuant to any regulations issued by the Department of the interior and the State of Alaska. Id. The Interior Secretary derived his authority to issue this order from a Presidential delegation. Exec. Order No. 10,355, 3 C.F.R. 873 (1949-1953).

(37) See supra note 36 and accompanying text.

(38) CLAUSE-M. NASKE & HERMAN E. SLOTNICK, ALASKA: A HISTORY OF THE 49TH STATE 241 (2d ed. 1987).

(39) Convention For the Protection of Migratory Birds, Aug. 16, 1916, U.S.-U.K., 39 Stat. 1702; Convention For the Protection of Migratory Birds and Game Mammals, Feb. 7, 1936, U.S.-Mex., 50 Stat. 1311. For an excellent discussion of the United States' treaty obligations respecting coastal plain wildlife, see James Walker, Oil Development in the Arctic National Wildlife Refuge and its Impact on United States International Wildlife Commitments, 4 INT'L. LEGAL PERSP. 1 (1992).

(40) See S. Rep. No. 96-413, at 241 (1979) (stating that "conflicting and uncertain information was presented to the committee about the extent of oil and gas resources on the Range and the effect development and production of those resources would have on the wildlife inhabiting the Range and the Range itself").

(41) Alaska National Interest Lands Conservation Act of 1980 (ANILCA), Pub. L. No. 96-487, 94 Stat. 2371 (codified as amended at 16 U.S.C. [subsections] 3103-3233 (1994) and other scattered sections of 16 and 43 U.S.C.).

(42) ANILCA [sections] 303(2)(A), 94 Stat. at 2390.

(43) Id. [sections] 303(2)(B), 94 Stat. at 2390. The stated purposes for the Refuge include the conservation of wildlife and habitat, fulfillment of international treaty obligations respecting fish and wildlife, preservation of subsistence lifestyles, and preservation of water quality. Id.

(44) Id. [sections] 1003, 94 Stat. at 2452.

(45) Id. [sections] 1002, 94 Stat. at 2449-52.

(46) U.S. FISH & WILDLIFE SERV., U.S. DEPT. OF THE INTERIOR, ARCTIC NATIONAL WILDLIFE REFUGE, ALASKA, COASTAL PLAIN RESOURCE ASSESSMENT' REPORT AND RECOMMENDATION TO THE CONGRESS OF THE UNITED STATES AND FINAL LEGISLATIVE ENVIRONMENTAL IMPACT STATEMENT (1987) [hereinafter COASTAL PLAIN RESOURCE ASSESSMENT]. 47 Id. at 3.

(48) Id.

(49) See, e.g., Lisa J. Booth, Arctic National Wildlife Refuge: A Crown Jewel in Jeopardy, 9 Pun. LAND L. REV. 105 (1988) (discussing in depth the Interior Secretary's findings and arguing that the environmental costs of development outweigh any benefits to be gained by tapping the potential energy reserves contained in ANWR); Chase, supra note 1, at 43 (discussing the current statutory scheme governing the management of ANWR and concluding that it vests too much discretion in the Interior Secretary).

(50) COASTAL PLAIN RESOURCE ASSESSMENT, supra note 46, at 185-92.

(51) Walker, supra note 39, at 4.

(52) Daniel Coyle, The Captain Went Down with the Ship, OUTSIDE, Oct. 1997, at 192.

(53) Should We Develop ANWR?, supra note 1, at 14.

(54) See Dirk Miller, State Officials Ponder How Much to Spend for ANWR Lobbying, ANCHORAGE DAILY NEWS, March 16, 1997, at B1 (describing Alaska's renewed lobbying efforts before Congress).

(55) Indeed, one issue before the Supreme Court in United States v. Alaska was whether the federal government or the State is entitled to the proceeds of mineral leases previously made by both sovereigns near Prudhoe Bay. David Whitney, Alaska Counts on Court: Title to Oil-Rich Areas off Prudhoe at Stake, ANCHORAGE DAILY NEWS, April 26, 1996, at Al; see also Chase, supra note 1, at 51-52 (discussing various ways in which the Department of the Interior has attempted to increase its share of revenues derived from north slope oil production).

(56) United States v. Alaska, 442 U.S. 937 (1979).

(57) United States v. Alaska, 444 U.S. 1065 (1980). The Court appointed J. Keith Mann, former dean of Stanford University Law School. David Whitney, Alaska Loses Oil Claim, ANCHORAGE DAILY NEWS, June 20, 1997, at Al.

(58) United States v. Alaska, 517 U.S. 1207 (1996).

(59) MASTER'S REPORT, supra note 18, at 477.

(60) Alaska Statehood Act of 1958, Pub. L. No. 85-508, 72 Stat. 339, 341.

(61) MASTER'S REPORT, supra note 18, at 464.

(62) Id. at 471-72, 499. Recall that section 6(m) of the Alaska Statehood Act expressly applies the grant provisions of the Submerged Lands Act to the State of Alaska. Alaska Statehood Act [sections] 6(m), 72 Stat. at 343.

(63) MASTER'S REPORT, supra note 18, at 472. The Interior Secretary's authority to affect withdrawals was derived solely from a Presidential delegation, and could not subsequently be delegated to subservient agencies. Exec. Order No. 10355, 3 C.F.R. 873 (1949-1953).

(64) MASTER'S REPORT, supra note 18, at 471-72, 499. The Special Master's reasoning in this regard is questionable. According to the Special Master, consistency compelled the conclusion that only a formal withdrawal by the Interior Secretary could constitute an express retention of land under the Submerged Lands Act: if Congress permitted only the Interior Secretary to administratively withdraw land, then Congress must also have intended that only the Interior Secretary reserve land under the Act. Id. In essence, the Special Master reasoned that viewing the administrative segregation of land as an express retention under the Submerged Lands would be equivalent to granting subservient agencies a power that they did not possess. This reasoning falls, however, because the administrative segregation process is, by its own admission, not equivalent to a formal withdrawal of land. Under the Department of the Interior regulations then in effect, an administrative segregation was temporary, and necessarily contemplated a final withdrawal decision by the Interior Secretary. 43 C.F.R. [sections] 295.11(a) (1954 & Supp. 1962); see supra notes 15-17 and accompanying text. Subservient agencies had only limited power, the power to suspend application of the public land laws pending the Interior Secretary's decision--not the power to withdraw. Thus, an administrative segregation could be viewed as an express retention without contradicting the congressional mandate that only the Interior Secretary withdraw lands.

(65) United States v. Alaska, 117 S. Ct. 1888, 1919 (1997). Justice O'Connor wrote the majority opinion in which Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer joined. Justice Thomas wrote a partial dissent in which Chief Justice Rehnquist and Justice Scalia joined.

(66) Alaska Statehood Act of 1958 [sections] 6(e), Pub. L. No. 85-508, 72 Stat. 339, 340-41.

(67) Alaska, 117 S. Ct. at 1918-19.

(68) Id. at 1918.

(69) Id. The Court wasted little time disposing of the Special Master's conclusions regarding the Submerged Lands Act. Justice O'Connor reasoned that, through section 6(e) of the Alaska Statehood Act, Congress expressly retained the submerged lands in question within the meaning of the Submerged Lands Act. Id. at 1917. Thus, the Court did not even address the question whether an administrative segregation of land constituted an express retention under the latter act.

(70) Id. at 1918. Justice O'Connor also supported her interpretation by noting that Alaska did not argue before the Supreme Court that it owned uplands within ANWR. This fact is noteworthy because the Special Master's interpretation of the Statehood Act suggests that the federal government may have failed to reserve even the uplands within ANWR when Alaska became a state. Id. Thus, Alaska's failure to claim the uplands can be interpreted, according to Justice O'Connor, as a silent admission by the State that the Special Master's interpretation is flawed. Id. The possibility that Alaska might legally be entitled to uplands within ANWR is discussed below. See infra notes 81-82 and accompanying text. For now, simply note that Alaska's decision not to seek uplands within ANWR can just as readily be interpreted as a strategic litigation decision--the State's chances of obtaining a favorable ruling almost certainly would have been diminished had the State openly argued that it owned half of the current Refuge.

(71) See, e.g., Watt v. Western Nuclear, Inc., 462 U.S. 36, 59 (1983) (applying the rule to the Stock-Raising Homestead Act); United States v. Grand River Dam Auth., 363 U.S. 229, 235 (1960) (holding that a federal statute granting states the power to condemn public lands for the purpose of building dams did not grant fee title to those lands); United States v. Union Pac. R.R. Co., 353 U.S. 112, 116 (1957) (applying the rule to the Union Pacific Act of 1862).

(72) Grand River Dam Auth., 363 U.S. at 235.

(73) See Union Pac. R.R. Co., 353 U.S. at 116 (respecting railroad grants); Andrus v. Charleston Stone Prods., 436 U.S. 604, 617 (1978) (respecting mining claims).

(74) Section 6 of the Statehood Act contains a number of grant provisions, of which sections 6(e) and 6(m) are only two. Alaska Statehood Act of 1958, Pub. L. No. 85-508, 72 Stat. 339, 340-43.

(75) Id. 6, 72 Stat. at 340-43.

(76) See supra notes 23-28 and accompanying text (discussing the extent and purpose of the grant provisions contained in section 6 of the Statehood Act).

(77) See Whitney, supra note 55, at A1 (discussing the status of oil revenues derived from past leases executed by the State of Alaska).

(78) 72 Stat. at 340-41, 343.

(79) See Reply Brief for the State of Alaska at 8-10, United States v. Alaska, 117 S. Ct. 1888 (1997) (No. 84 Orig.), available in 1996 WL 587842, at *10-11 (summarizing the State's arguments concerning the proper interpretation of sections 6(e) and 6(m) of the Statehood Act).

(80) Prior to the Court's decision in this case, the State of Alaska included the submerged lands at issue in its projected leasing program. See Amicus Brief at 11, United States v. Alaska, 117 S. Ct. 1888 (1997) (No. 84 Orig.), available in 1996 WL 660499, at *11 (citing the State's Five Year Oil and Gas Leasing Program) [hereinafter Amicus Brief].

(81) United States v. Alaska, 117 S. Ct. at 1914.

(82) Id. at 1912. Recall that the Special Master interpreted section 6(e) of the Statehood Act to reserve for the federal government only those lands that were formally withdrawn or set apart as a refuge or reservation. Because the submerged lands at issue were not yet formally included in a refuge or reservation when the Statehood Act grants took effect, the Special Master concluded that those lands were not reserved. See supra notes 61-62 and accompanying text. Yet the same administrative segregation process that, according to the Special Master, failed to reserve the submerged lands must also have failed to reserve uplands within the Range, because both submerged lands and uplands were segregated by the same administrative document and process. Accordingly, if the Court were to adopt the Special Master's interpretation of section 6(e), it might also be compelled to rule that Alaska actually owned all of the original Wildlife Range--approximately half of the current Refuge. Such a ruling would essentially cede to Alaska the most sensitive portion of ANWR, the arctic coastal plain.

(83) 3 Cai. R. 175 (N.Y. Sup. Ct. 1805).

(84) Id. at 178.

(85) See, e.g., Elliff v. Texon Drilling Co., 210 S.W.2d 558 (Tex. 1948) (discussing the rule of capture in oil and gas law); Pacific Gas & Elec. Co. v. Zuckerman, 234 Cal. Rptr. 630 (Cal. Ct. App. 1987) (holding that once gas has been reduced to possession, the owner is not divested of the gas when she stores the gas in the ground); JOHN E. CRIBBET ET AL., PROPERTY 1325-31 (6th ed. 1990) (discussing the role of possession in determining surface title to land).

(86) See generally Carol M. Rose, Possession as the Origin of Property, 52 U. Cm. L. REV. 73 (1985) (discussing the central role that possession has played in the development of the American common law).

(87) See supra Part III.B.

(88) For a discussion of the administrative scheme governing the coastal plain following Alaska's statehood, see supra Part II.B.

(89) Recall that Interior Secretary Seaton's 1960 Order creating the Arctic National Wildlife Range expressly permitted the State to regulate the taking of fish and wildlife within the Range, so long as state regulation was consistent with regulations promulgated by the Department of the Interior. Public Land Order 2214, 25 Fed. Reg. 12,598 (Dec. 8, 1960).

(90) 440 U.S. 668 (1979). This case is also noteworthy in terms of the history, of the western United States. The Union Pacific Act of 1862 provided substantial land grants to the railroad for every mile of track that it laid. Act of July 1, 1862, 12 Stat. 489. The Act granted all odd numbered lots within ten miles of the track to the railroad, leaving all even numbered lots for the federal government. 440 U.S. at 668. After the original grant failed to spark investor interest, the grant was doubled so that railroads received all even numbered lots within twenty miles on both sides of the track. Id. at 677. The railroad was eventually built pursuant to this land distribution scheme, leaving as its legacy the "checkerboard" pattern of property ownership that persists today in the western United States. Id. at 672.

(91) Id. at 681.

(92) Id. at 678. Note that, in Leo Sheep, the Court faced a potential forfeiture of the land owner's right to exclude others. Though significant as a traditional property right, this threat surely pales in comparison to the potential forfeiture that would have resulted had the Court ruled for the state in United States v. Alaska.

(93) See supra notes 88-89 and accompanying text.

(94) Amicus Brief, supra note 80.

(95) Id. at *8-17.

(96) See, e.g., Arkansas v. Tennessee, 310 U.S. 563 (1940) (applying the doctrine to hold that Tennessee owned land previously belonging to Arkansas after the border river altered its course); Michigan v. Wisconsin, 270 U.S. 295 (1926) (applying the doctrine to hold that islands within a boundary river belonged to Wisconsin because Michigan waited too long before challenging Wisconsin's proprietary claim); Indiana v. Kentucky, 136 U.S. 479 (1890) (applying the doctrine to hold that Kentucky owned islands within a boundary river).

(97) 447 U.S. 125 (1980).

(98) Id. at 130-31.

(99) Id. at 131-32.

(100) Id. at 130.

(101) See, e.g., Wyoming v. United States, 255 U.S. 489 (1921) (holding that the Department of the Interior lacked the authority to disapprove of a land selection made by Wyoming under a grant from Congress). This case is illustrative of grantee states' need to finalize public land grants. In 1890, Congress granted Wyoming certain public lands to be used in support of state schools. The grant permitted Wyoming to trade the specified lands for other unappropriated nonmineral lands within Wyoming's borders. Wyoming made such a trade in 1912. After the Department of the Interior discovered oil on the state-selected lands in 1914, however, the Department of the Interior challenged the selection on the grounds that the lands were nonmineral. In rejecting this challenge, the Court held that the mineral character of the lands must be judged as of the time of Wyoming's selection (1912) and not at some later date. Id. at 496. One reason given in support of the Court's holding was the need to finalize the grant. Id. at 497.

(102) For instance, consider the facts presented in United States v. Alaska. Following passage of the Statehood Act, the Department of the Interior was required to separate those possessions that were to be transferred to the new state from those possessions that it was required to manage. The Department of the Interior decided to retain and manage the arctic coastal plain. If the Court adopted a rule permitting the State to challenge that decision after forty years of federal control and management, the Department of the Interior's practical authority and enthusiasm for its mission could be seriously chilled.

(103) Interior Secretary Seaton's 1960 withdrawal order clearly stated the purposes for which the new wildlife range was to be managed: preserving the "unique wildlife, wilderness and recreational values" of the region. Public Land Order 2214, 25 Fed. Reg. 12,598, 12,598 (Dec. 8, 1960), see supra note 36 and accompanying text. Between 1960 and 1979, when the United States initiated this suit, the Department of the Interior managed rite Range consistent with this statement of purpose, despite the enormous mineral wealth generated just to the west at Prudhoe Bay. See supra Part II.B.

(104) Through ANILCA, Congress reaffirmed its dedication to preserving the unspoiled wilderness character of the Refuge. See [sections] 303(2)(B), Pub. L. No. 96487, 94 Stat. 2371, 2390 (1980) (stating the conservation purposes for which the new wildlife refuge would be managed).

TODD GROVER, J.D. and certificate in Environmental & Natural Resources Law 1998, Northwestern School of Law of Lewis & Clark College; B.A. Earth Sciences 1999, Dartmouth College. The author wishes to thank Professor Michael Blumm for providing the impetus and initial direction for this Note. Thanks also to Associate Editor Diane Pinney for her diligent efforts curbing the author's natural tendency to over state and under cite. The blame for any remaining errors belongs solely to the author.