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Abstract

United States v. Alaska represents the latest clash between the federal government and coastal states for control of valuable resources located in the submerged lands of the territorial sea. In its decision, the Supreme Court considered the conflict between a coastal state's right to jurisdiction over coastal areas under the Submerged Lands Act (SLA) and the federal government's power to regulate the construction of new structures on the shoreline under the Commerce Clause of the Constitution. History rang true in this latest chapter of the ongoing dispute. Under international law, a nation may extend its sovereignty twelve miles from its shoreline International law also allows a nation to consider non-natural structures as a part of its "coastline" and move its seaward limit as if the coastline followed the contour of the structure. The city of Nome, Alaska, recently constructed a causeway that extended into Norton Sound approximately twenty-seven hundred feet. The United States conditioned construction on Alaska's promise that the causeway would not affect the location of the boundary marking the federal/state three-mile limit; the line of demarcation between federal and Alaskan submerged lands would continue to be measured from Alaska's natural coastline in the vicinity of the causeway. To achieve this end the Army Corps of Engineers (Corps), acting for the United States, required Alaska to abandon all claims to the submerged lands that would result if the three mile federal/state boundary were to be measured from the end of the causeway before issuing the necessary federal construction permit. The Supreme Court upheld the Corps' actions in conditioning the issuance of the construction permit. The Supreme Court agreed with the United States that the River and Harbors Appropriation Act of 1899 (RHA) accorded the federal government nearly unlimited discretion to grant or deny section 10 permits, and it upheld the Corps' requirement that Alaska waive territorial claims created by the SLA. The Court ignored Alaska's invitation to examine the question of whether Corps' regulations could override the congressional mandate of the SLA. In Alaska's view the Department of the Army implemented administrative regulations in a manner that took land granted by Congress. The Court, however, decided the case on the basis of administrative law; examining only the question of whether the Corps' regulations, which included review of the effect of the project on the federal/state boundary as a part of the permitting process, were proper. The Court's decision validated the Corps' regulations, holding that the Corps could require a waiver of rights granted by the SLA as a condition to granting a section 10 permit. This decision, in effect, allows the federal government to hold property rights to resource-rich submerged lands as ransom for permission to construct a public causeway.

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