William H. Rehnquist: We'll hear argument first this morning in No. 118 Original, United States against Alaska. Mr. Minear.
Jeffrey P. Minear: Mr. Chief Justice and may it please the Court: This original action is before the Court on cross motions for summary judgment. The question presented is whether the Secretary of the Army acted within his authority when he refused to issue a permit for construction of the Nome Port Facility unless Alaska agreed that the construction would be deemed not to alter the location of the Federal/State boundary. Some historical background is necessary to understand this case. This Court ruled in a 1947 decision, California I, that the Federal Government rather than the individual States owns offshore submerged lands. 6 years later Congress enacted two statutes: the Outer Continental Shelf Lands Act; and the Submerged Lands Act which divided the offshore submerged lands between the Federal and State governments. Congress gave the States those submerged extending, as a general matter, 3 miles from the coastline. A dispute then arose whether coastal construction such as port facilities should be treated as part of the coastline for purposes of the Submerged Lands Act grant. This Court ruled in California II that harbor work should be treated as part of the coast. The Court concludes that there was no inequity in measuring the coast submerged lands grant based on structures that the State itself had built, because the United States, through its control over navigable waters, had the power to protect its interests from encroachment and quote, the effect of any future changes could thus be the subject of agreement between the parties. The Army, which issues permits for offshore structures under section 10 of the Rivers and Harbors Act revised its permitting regulations in response to the California II decision. Those regulations now provide that the Army will take into account the effect of the proposed coastal construction on the Federal/State boundary when determining whether to issue a permit. The Army applied those regulations to the City of Nome's proposed port facility. The Army refused to issue the permit unless Alaska disclaimed entitlement to any additional submerged lands. Alaska argues that the Army had no authority to impose that requirement. We disagree. Congress has directed the Army to regulate the placement of structures in navigable waters. The relevant statute, section 10 of the Rivers and Harbors Act, contains a complete prohibition on the creation of any obstruction to navigation. It then gives the Secretary of the Army the power to allow exceptions on a case-by-case basis where structure work is recommended by the Corps of Engineers. Thus, section 10 expresses a legislative policy against the placement of structures in navigable waters except where the Secretary affirmatively determines that the structure should be allowed. Section 10 does not identify specific factors the Secretary should take into account in authorizing such structures. The Secretary accordingly takes into account a whole range of factors relevant to the public interest in light of the policies Congress has articulated in other laws. This public interest review process is certainly reasonable. Nothing in section 10 suggests the Army should exercise its permitting authority without regard to the policies that Congress has stated elsewhere. This Court recognized that point in United States v. Pennsylvania Industrial Chemical Corp., and Greathouse v. Dern, which both indicate that the Rivers and Harbors Act gives the Secretary broad discretion to grant or deny permits.
Antonin Scalia: Mr. Minear, can I ask, what is the Government's position under section 10 and under this waiver or for that matter, under all waivers, with respect to a natural accretion that is caused by the construction of the artificial structure?
Jeffrey P. Minear: That is a factor that would be taken into account in building the structure, and I think that is a very relevant point in this sense, the structure might cause downstream erosion, shoreline accretion, which could result in actually bringing the boundary landward and would affect the State's grant of submerged lands. That is a factor that the Army will take into account in determining whether to issue a structure.
Antonin Scalia: I am not talking about whether the Army will take it into account in determining whether to issue the permit. I am sure it will. But suppose the permit is issued subject to a waiver such as this; does the waiver include the State's power over any extension of the State's boundary caused by natural accretion which is in turn attributable to the artificial structure?
Jeffrey P. Minear: Yes, I think this disclaimer would in fact cover that. Under the specific terms of this disclaimer, much depends on how the disclaimer is worded.
Antonin Scalia: You have to go and figure out how much natural accretion along the shoreline is caused by the construction of a jetty that was subject to a waiver like this? It makes it awful complicated, doesn't it?
Jeffrey P. Minear: With all respect, Your Honor, this is only going to arise in most cases with respect to the leasing of mineral rights. If the State or the Federal Government decides to lease mineral rights, it will in fact issue a notice and the parties will contact the relevant agencies, any party interested in leasing property, to locate the boundary.
Antonin Scalia: No, but it is the case that I just can't look at the shoreline and say, well, except for natural structures, I know that the 3-mile is measured from the shoreline and you are telling me that if some of that shoreline may be up-current or down-current, I don't know how accretion works, has been altered by reason of the artificial structure, I cannot count that part of the shoreline for determining the 3-mile limit.
Jeffrey P. Minear: Well, Your Honor, that is a practical consequence of the way this particular disclaimer is worded. A disclaimer could eliminate that problem. The likelihood of the problem arising is also minimized by the fact that one aspect of this project is a littoral drift monitoring program which was designed to assure that there would be no accretion or erosion as a result of the construction of this structure. The party that has the permit here, the City of Nome, is under an obligation to monitor any such changes, and if they do occur, it is under an obligation to prevent them from occurring. So although this raises a theoretical difficulty under this particular disclaimer, I don't think it has a great deal of practical consequence in light of other factors relevant to the--
William H. Rehnquist: Does the Corps exact similar waivers in connection with structures on a river?
Jeffrey P. Minear: --In those cases it is likely not to because it does not affect offshore mineral rights.
William H. Rehnquist: That could very much affect the boundary between one State and another on a river.
Jeffrey P. Minear: That's right, and that is a factor that the Corps could take into account. I am not sure--
William H. Rehnquist: What do you mean when you say the factor, a factor the Corps could take into account? Take into account in doing what?
Jeffrey P. Minear: --In determining whether to issue the permit or not and what are the appropriate conditions for issuance of the permit.
William H. Rehnquist: But you say that the Corps does not generally exact waivers in connection with streams or rivers within the United States.
Jeffrey P. Minear: Well, frankly, I am just not certain about that practice. The structure of the Corps' permitting process is to take into account any factor, any consequence, both physical or legal, that might result from the addition of a structure in navigable waters.
William H. Rehnquist: But supposing that a State applies to build a dam on a river and the river is on an interstate boundary and the prospectus or study says there is a chance that there will be some erosion on one side of the river, accretion on the other and it might alter the boundary of the State some, how would the Court take that into consideration? Would that be a negative or a positive effect?
Jeffrey P. Minear: As a general matter, the Corps attempts to preserve the status quo, exactly as in this case. There is a need for stability with respect to boundaries, particularly boundaries for submerged lands that can be subject to accretion or erosion. So the Corps' basic perspective on this is that we don't want the structure to be altering settled expectations with respect to property rights.
Antonin Scalia: So the structure... the point of my earlier question, Mr. Minear, is that I am inclined to agree with the Government that section 10 allows you to take into account whether it will alter the ownership of submerged lands, but to say that you can take it into account is not to say that can condition the permission upon this kind of waiver. The greater does not necessarily include the lesser. And if indeed one of the consequences of having these waivers is that the shoreline is always going to be subject to debate as to whether some natural accretion has occurred by reason of an artificial structure under such a waiver, I am more inclined to think that your choice is either to let it go forward in which case the coast is altered as the structure causes, or else, not let it go forward. Why isn't that a conceivable version of section 10?
Jeffrey P. Minear: Well, with all respect, Your Honor, the Corps, what the Corps is attempting to do here is to stabilize and provide definiteness with respect to title. That is what the disclaimer did in this particular case. That is what the littoral drift monitoring program also did with respect to this case. Much depends on how the disclaimer might be crafted and in fact, the Army allows the State to draft a disclaimer and then determines whether or not the disclaimer would appropriately protect Federal interests. But the ultimate interest that the Federal Government is asserting here is in fact the stability of title, the fact that we do want to have certainty.
Anthony M. Kennedy: Now, Mr. Minear, I take it that if there is accretion or erosion through natural causes, the boundary is ambulatory?
Jeffrey P. Minear: That is generally true, although this is a matter that is changing, as this Court issues particular decrees with respect to--
Anthony M. Kennedy: But absent the decree, the Government agrees that the land would be ambulatory in that case?
Jeffrey P. Minear: --The land would be ambulatory except that where disclaimers are in effect or where this Court has entered a decree fixing a boundary. Now that is always one alternative to ensure that there is a stable Federal/State boundary.
Anthony M. Kennedy: Would you have authority, would the Government have authority to tell Alaska that it's going to condition the permit for construction of this structure on making the entire boundary of Alaska fixed as of this time?
Jeffrey P. Minear: I think that might run into problems, two types of problems at the outset. It could be an arbitrary exercise of the Corps' power. As a general matter it seems, we would think that this disclaimer should be tied to specific governmental interests that are identified--
Anthony M. Kennedy: But I thought you said you had a governmental interest in having stable boundaries.
Jeffrey P. Minear: --Oh, we do, we do, and we exercise that on a case-by-case basis with respect to these individual projects. At a broader sense, this seems inconsistent with the notion that was expressed in Nollan that a permit condition should be closely related to the reason why the Government could deny the permit. Now here we submit that there is no question, that the Government could deny the permit based on the affect that it would have on the change in Federal property rights. If it can deny the permit on that basis, it ought to be able to impose conditions that protect those interests; in other words, provide a less drastic alternative.
Sandra Day O'Connor: Mr. Minear, the Submerged Land Act expressly states that it is in the public interest for the States to have title to submerged lands within 3 miles of their coastline. Does that statutory articulation of public interest affect the resolution of this case, do you think?
Jeffrey P. Minear: We think as a general matter that is a policy that is also of interest to the Army, but what the Army does here is that it looks to the consequences of the building of the structure. As it stands now, the State has received exactly those lands that were granted under the Submerged Lands Act. The building of a structure would in fact reduce the United States' grant of lands under the Outer Continental Shelf Lands Act; that is a factor that the Corps should be allowed to take into account. If the structure actually went the in other direction, if it actually diminished the lands that the State presently owns with respect to the Submerged Lands Act, then the Army would take that factor into account, and the basis for that would be the policy that is set forth in the Submerged Lands Act.
Antonin Scalia: The Government doesn't end up with any net loss, right? It loses the length of the structure at one end and picks it up at the other end.
Jeffrey P. Minear: No, with all respect, Your Honor, it does not. The United States would not gain any property in this particular case. First of all, the United States grant or the Outer Continental Shelf Lands Act extends to the end of the outer continental shelf, so it is fixed... it is a geographic matter. In this case, all of the land up around Norton Sound is continental shelf, it is all less than 200 meters deep. And this particular location is on Norton Sound. If you went south from Nome through Norton Sound, you would eventually hit Alaska again. Nome is located on the Seward Peninsula. As a more general matter, even if you had a straight boundary and you were extending the line, I think it is helpful to look at the map we have, the last page of the joint appendix. The effect of adding a point on the coastline is to create an are of additional land that is created, that is encompassed within the boundary. So although the causeway only occupies 5 acres, it ends up transferring, if there were no disclaimer, over 700 acres of land. Now in the case of a straight boundary, where we would be concerned perhaps with the 200-mile exclusive economic zone limit, this is another boundary that we have that is apart from what we have discussed here, using the causeway to extend the exclusive economic zone could extend that, but it would only be if it was an absolutely straight coastline. If there was some other point upstream or downstream that also goes out, the drawing of the arc would in fact eliminate the factor that you get from the causeway. Now the Secretary's consideration of the effect of the proposed structure and the location of the causeway is simply one part of its public interest review process. As the Secretary's regulations recognize, the location of the coastline has great significance because it can determine the location of international and Federal/State boundaries, and even where foreign relations concerns are absent, a shift in the location of the coastline can, as in this case, divest the United States of its interests in the outer continental shelf. Congress has stated that the outer continental shelf is a vital national resource reserve, held by the Federal Government for the public. Thus, it is entirely proper for the Secretary to consider, as one element of the public interest review, the effect of a proposed structure on the location of the coastline. In the absence of such a review, portions of a vital national resource reserve would be transferred without any formal Government consideration from Federal to State hands. The Secretary's public interest review process, including his consideration of the effects of the proposed structure on the location of the coastline, reflects a commitment to faithful execution of the law. It ensures the Secretary takes full account of all of Congress' policies before he authorizes construction that can impact on a wide variety of public concerns. It is also consistent with this Court's decision in California II, which recognized that the United States has the ability to protect itself from artificial changes in the coastline through its power over navigable waters. Furthermore, it produces a sensible result. In this instance, the City of Nome applied for a permit to construct port facilities projecting more than 1/2 mile into Norton Sound. The Army learned through consultation with the Solicitor of the Interior Department that the resulting change in the coastline would divest the United States of potentially valuable mineral resources. The Army therefore reasonably insisted that a permit would not be issued unless Alaska entered into an agreement preserving the existing Federal/State boundary. The Army was entitled to deny the permit because of the adverse affect that the construction would have on the location for the boundary.
Harry A. Blackmun: As a matter of curiosity, Mr. Minear, what kind of minerals are possible there?
Jeffrey P. Minear: The mineral... the leasing program that is ongoing at this point, and in fact, request for leases were submitted, no bids were received, but the primary mineral of interest in the case of those leases was gold. There is also a possibility in Norton Sound of oil and gas, I think oil primarily. However, there is no active leasing program. There might be such a program in 1996. I also understand that a permit has been issued for gold prospecting as opposed to simple leasing for exploration in the Norton Sound area as well, and that is for gold. I would like to note some of Alaska's arguments here. Alaska mistakenly argues that section 10 limits the Army's inquiry to navigational and environmental concerns. Section 10 contains no such limitation and indeed, suggests a far broader inquiry. Virtually any structure place in navigable waters obstructs navigation, and section 10 authorizes the Secretary to allow such a structure, despite the adverse impact. So obviously the Secretary must look to factors other than navigation in determining whether to issue a permit. As Alaska concedes, there is no dispute that the Army can take into account the public interest, including Congress' environmental policies, in determining whether to issue a permit. There is no principle basis for distinguishing between Congress' policies articulated in environmental laws and those articulated in other statutes such as the Outer Continental Shelf Lands Act. Alaska is also mistaken in arguing that the result we urge here will detract from this Court's supposed goal of a single coastline for international and domestic purposes. This Court has never stated that it has an overriding goal of establishing a single coastline. The Court adopted the coastline definitions--
William H. Rehnquist: Upholding a what kind of--
Jeffrey P. Minear: --A single coastline.
William H. Rehnquist: --As opposed to what, a double coastline?
Jeffrey P. Minear: Alaska's theory here is that there should be, the same coastline should be used for measuring both the Federal/State boundary and international boundaries. And in fact, there are divergences that exist in any event. As the Court adopted the definitions in the international conventions because they provided definiteness and stability with respect to offshore property rights and not to produce a single coastline. And as this Court noted in California II, a change in the international conventions would not change the definitions for purposes of the Submerged Lands Act.
Antonin Scalia: What are the divergences that occur anyway?
Jeffrey P. Minear: They occur in several respects. The clearest example is in the case of the Gulf side coast of Florida and the coast of Texas. In the case of both of those States, they received a grant of 3 marine leagues rather than 3 miles of submerged lands. This Court determined in United States v. Louisiana that the coastline for the purpose of that grant would be determined on the basis of the coastline at the time of admission and would not include any subsequent artificial structures. More recently, we stipulated to a coastline, a baseline for the purposes of closing the Chandeleur Sound off the coast of the State of Mississippi and that baseline also was not necessarily the same as the baseline that would be established for international purposes. Alaska is also mistaken in arguing that California II's discussion of the United States' control over navigable waters was made in reference to Congress' constitutional power over navigation rather than the Army's permitting authority. The Court's reference to the Government's power to resolve future disputes by agreement can refer only to an executive power. Congress enacts laws. It does not enter into agreements. And the Special Master's statements, which this Court cited with approval, expressly refer to the Government's permitting process and the need for governmental approval. In sum, we believe that the Army has the authority to require this sort of disclaimer in these circumstances, and we therefore request that the Court grant the United States motion for summary judgment.
Byron R. White: The problem is that if you don't have the power to condition, that you wouldn't have the power to refuse this permit?
Jeffrey P. Minear: I don't think it would necessarily follow. I suppose... under our theory it would, it seems to me, to us, that if we have the power to deny the permit, we have the power to condition it. I think it would be unusual if we had the power to condition it, but not--
Byron R. White: If you don't have the power to condition, you don't have the power to refuse it--
Jeffrey P. Minear: --Yes, that would be--
Byron R. White: --if it otherwise satisfies the... if the only objection you would have is because it extends the coastline, you couldn't refuse it under your theory?
Jeffrey P. Minear: --I believe that is a last... maybe I am getting confused here, but our theory is that we can deny the permit based on its coastline--
Byron R. White: I know, I know. But what if you can't?
Jeffrey P. Minear: --And if we can't, then I believe that the logic of our position would be that we would have to grant the permit.
Byron R. White: Yes. Isn't it Alaska's position that you have no power here to refuse the permit?
Jeffrey P. Minear: That's correct, Your Honor. Thank you, I would like to reserve the remainder of my time.
William H. Rehnquist: Very well, Mr. Minear. Mr. Gissberg, we will hear from you.
John G. Gissberg: Mr. Chief Justice, and may it please the Court: We believe that the Army Corps' disclaimer practice is open-ended and mandatory and missing the essence of the Submerged Lands Act and also some fundamental principles of Government in this country. This causes them to badly misjudge the public interest in both law and in fact. We don't believe that the Outer Continental Shelf Lands Act or the Rivers and Harbors Appropriation Act of 1899 causes any other result. In essence, this is simply a case of statutory construction, whether the Army has the statutory authority to require a disclaimer that fixes a State's seaward boundary at a line that is different from the 3 miles from the coastline that was granted to the States by Congress in the Submerged Lands Act.
Byron R. White: I thought your position went farther than that, that whether or not it extends the coastline or extends a State line, the boundary, whether or not it does it not a proper consideration in determining whether to issue the permit or not.
John G. Gissberg: This is correct. My next sentence is getting to that point.
Byron R. White: All right. Go ahead.
John G. Gissberg: But we start with the coastline and I also want to emphasize that Alaska, although we were not a State when the Submerged Lands Act was passed, under our statehood compact we did become a State, specifically that compact provides us the benefits of the Submerged Lands Act. Congress, in enacting that Submerged Lands Act, spoke directly and clearly and couldn't have spoken more plainly that the States own submerged lands to 3 miles from the coastline. They knew then, as has been known from the beginning of time, that coastlines are not stable. They change through all sorts of natural forces and manmade modifications. Under acts of Congress and international law that has been adopted by this Court, the rule is that those ambulations of the coastline result in corresponding changes to the seaward boundary, wherever that is and whatever seaward boundary it happens to be. In this case, we are talking about the 3-mile limit, but the same consequence happens on the 12-mile Federal territorial sea and on the 200-mile exclusive economic zone that the Federal Government has. This is a fact of life on the ocean and the Army Corps of Engineers cannot change that by administrative fiat. By doing this administratively and venting their own exception to this rule that Congress laid down, they are absolutely ignoring the Submerged Lands Act, which is the one single act that directly, squarely addresses the States' rights to submerged lands.
William H. Rehnquist: Mr. Gissberg, could the Corps of Engineers have said when you applied for a permit, it looks to us as if this is going to extend the State's seaward boundary, therefore we are going to turn it down. We are going to say no.
John G. Gissberg: Mr. Chief Justice, absolutely not. And in this case, of course, the State didn't apply for the permit, and about a year later we got a letter saying that Nome wasn't going to get the permit unless the State waived it. No, they do not have that authority. Congress spoke clearly that this is an ambulatory formula. We have a fixed formula.
William H. Rehnquist: So it isn't... let's assume you are correct about the formula, why can't the United States or the Corps of Engineers simply say, we don't want to risk any changes in the outer boundary, we are not going to let you build it?
John G. Gissberg: Because the Army Corps is a creature of Congress, Mr. Chief Justice--
William H. Rehnquist: Well, of course it is, but that doesn't answer it.
John G. Gissberg: --My answer is that they only have the power that Congress gave them and that power starts from the Rivers and Harbors Act.
William H. Rehnquist: But the Rivers and Harbors Act says you can't build any structure in navigable waters except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army.
John G. Gissberg: Mr. Chief Justice, the Government compares section 10, which the Court has just read, to section 13, which they reference in Pennsylvania Chemical case, and we think... and Pennsylvania Chemical said that regarding putting pollutants into navigable waters, the Army Corps had discretion to say no, they will not allow those pollutants to go in. We don't believe they have that same discretion under Article 10 and here is why. Article 10 was developed for completely different reasons than Article 13. Article 13 is to protect those waters from something that is bad, pollution. Article 10 is to do something good to those waters, to enhance the navigable capacity. In 1888 in the Willamette case, the courts of the United States said that there is no prohibition of putting any single obstruction in navigable waters in the United States. So in 1890 the Congress enacted the precursor of this Rivers and Harbors Appropriation Act of 1899. They purpose of that act was to enhance navigation. As a part of that, they told the Army Corps of Engineers that there will be no obstructions to the navigable capacity of the navigable waters of the United States. When the Army Corps of Engineers takes that authority and says this means that from 1899 to the present day, we could say that nobody will build a pier, nobody will build a wharf, nobody will build a causeway, nobody can do anything in the waters of the United States. We don't think that that is what Article 10 says.
William H. Rehnquist: What factors can the Secretary take into consideration in refusing to authorize a construction project?
John G. Gissberg: Yes, Mr. Chief Justice, from 1899 until 1968, the Army Corps of Engineers, by their own admission in the Federal Register cite that the Government has put in, took into account one factor, and that was navigation, enhancing navigation. If a project enhanced navigation they accounted for that. In the 1960s and '70s, there is a series of cases saying that the Army Corps of Engineers is allowing things to happen that are destructive of the waters of the United States. The Army Corps of Engineers can only consider public interest that is articulated by Congress. The first time this happened was in 1956 in the Fish and Wildlife Coordination Act. In the Fish and Wildlife Coordination Act, the Army Corps could say, this project is good for navigation, but it is not good for anadromous fish, so therefore we are not going to put it in. Then in 1969, the National Environmental Protection Act was passed. Before that though, the most important one was that in 1953, the Congress looked at the ownership of submerged lands offshore and they said the States are going to have it to 3 miles from the coastline.
Antonin Scalia: You don't think that preserving the property of the United States is one of the public interests of the United States? Does that mean the Department of the Interior does not? I don't know that there is a special statute that says the Secretary shall evict people who poach on United States lands, but I am sure it is part of the public interest of the United States to preserve territory owned by the United States. Isn't that self-evident?
John G. Gissberg: Justice Scalia, I think it would be if it were not for the Submerged Lands Act. The Submerged Lands Act is the only act that Congress has directed specifically to tell us what happens with submerged lands.
Antonin Scalia: But the Submerged Lands Act doesn't say that the effect of structures can be to decrease the territory owned by the United States.
John G. Gissberg: The Submerged Lands Act, Justice Scalia, says that the States will own the lands to 3 miles from the coastline, that coastline is ambulatory. Everybody knows it changes. So the Federal--
Antonin Scalia: We are not talking now about the waiver. We are talking about the right to refuse. I agree that if the Government gives a waiver, you can argue that that contradicts the Submerged Lands Act because it causes the State to own less than the 3 miles. But I am just now talking about the Government's simple right to refuse. You want to build a structure, the Government says... I am not contravening the Submerged Lands Act. I am not saying you can build it, but you can't have your 3 miles, I am just saying, you can't build it because it will take away territory of the United States. What is the matter with that?
John G. Gissberg: --The problem with that, Justice Scalia, is that Congress addressed those Federal interests in the outer continental shelf in May of 1953 when they enacted the Submerged Lands Act and then in August when they enacted the Outer Continental Shelf Lands Act, and they realized there would be some changes in that baseline. Actually, when they enacted the Submerged Lands Act, the took all of the Federal lands and all 36,000 square miles of the 3-mile limit and gave it to the States. There was an immense national interest in those lands. We are talking about 730 acres that doesn't have anything on it to the best of our knowledge, and we are saying that that is going to be subverted by an Army Corps decision that that is in the public interest. I don't think we can do it.
Antonin Scalia: I just find it hard to believe that once you acknowledge that all interests, all governmental interests and not just the interest in navigation can be taken into account in determining whether to deny the permit, I cannot imagine that one of those interests cannot be whether the Federal Government will lose territory. I mean, that seems to me an obvious governmental interest.
John G. Gissberg: Justice Scalia, it somehow isn't as obvious to me because I have looked exactly at what Congress has said, and in our briefs we have gone through, there are probably 20 different laws of Congress that have been enacted that the Army Corps of Engineers has to look at. One of those says that that coastline is ambulatory, natural or artificial causes, it moves in and out. Now the hypothetical that the Court is raising is one where we are not talking about a waiver. We are just saying that they can't issue that permit. I believe that once they accept the permit application, once the permit application is given to them, that they are bound to act on that permit application in accordance with the laws. If I go to the Federal Government for a fishing license and I am qualified for the fishing license or a driver's license or to be admitted to the bar, they can't... of course, they have authority to issue those permits, but it is not in their discretion. Look at Article--
William H. Rehnquist: No one is disputing that, I don't think, Mr. Gissberg. The question is, what factors can they take into consideration under the laws that exist?
John G. Gissberg: --Yes, Mr. Chief Justice, I believe that in the 1968 cite to the Federal Register, the Corps admits there that we are now going to take into account more factors than just navigation. They list a long variety of laws there that they can take into account. Every single one of those factors in their public interest review, if the Court will compare their regulations at 33 CFR 320 to the statutory authority that they list, every single one of those regulatory criteria that they compare with is related to an act of Congress except this one, and except the ownership one. And the only thing that is related to the ownership one is the Submerged Lands Act. In fact, in their own law, the Outer Continental Shelf Lands Act and Submerged Lands Act, in their own regulations in 320, it says property interests will not be a factor.
Byron R. White: Suppose we don't agree with you in that regard, Mr. Attorney General; suppose the Government just turns you down? We say that the Government has the power and the Government just turns you down. Do you think that if you then went to the Government and said, look, we want this pier. We offer to waive any change in the coastline if you grant this permit. And the Government says, well, we don't condition it on that, but we will just make a contract about it. Do you think that would be enforceable?
John G. Gissberg: No, I don't. I think the Army Corps has to have the authority to do that from Congress, and that is what this Court was talking about in--
Byron R. White: I know, but we say that they have authority to turn... say that they have the authority to turn the permit down and you think then that there is no way that the State and the Federal Government could make an agreement that would permit the building of the pier without extending the coastline.
John G. Gissberg: --I see. From my point of view, I would require an act of Congress that said that there will be no... nothing done to the coastline that affects the State seaward boundary, and then I would say, yes, that is giving them that as some authority. Now I would think that Congress would definitely not do that. They would give the Court some formula to weigh the public interest, maybe the $25 million causeway and 17 acres that are covered up and the boats that come in and the good that is done for the City of Nome and Northwest Alaska would be a part of that. I think it would be if Congress did it.
William H. Rehnquist: You don't question then the authority of Congress to explicitly adopt a regime such as the Corps has adopted in this case?
John G. Gissberg: This is, Mr. Chief Justice, the job of Congress to do--
William H. Rehnquist: And you concede that Congress does have that authority had it chosen to do so, you say it has.
John G. Gissberg: --Absolutely, and in fact, we interpret the Court's suggestion that is being taken as a mandatory direction now because this is happening on every single causeway and every single beach project... we only could find 17 through 1991, but every one that is coming up now, the Corps requires these disclaimers. In this Court in 1965, in the second California case said that there could be legislation and agreements to do this. That is what has to be done before the Court has this authority. They can't substitute their judgment for Congress.
Byron R. White: You think that that statement in one of the California cases that the United States could protect itself was just misguided?
John G. Gissberg: Not at all, I think that it has to be read--
Byron R. White: How can it protect itself if it must issue the permit?
John G. Gissberg: --Justice White, that statement in the California case specifically says it can protect itself through its authority... powers over navigation. That is the navigational servitude, plus its authority under the Rivers and Harbors Appropriation Act to allow or disallow projects that interfere with the navigable capacity--
Sandra Day O'Connor: But the logic of your position, Mr. Gissberg, is that assuming a particular project does not interfere with navigation, that the Federal Government is powerless to prevent a State from artificially extending its coastline for the very purpose of gaining title to submerged lands in some valuable area. I mean, that is the logic of your position.
John G. Gissberg: --This Court has actually said, I have been looking at the second half of that sentence in California II, but this Court in California II said that... they directly addressed that to unwarranted structures, and an unwarranted structure would be one that doesn't have any navigational benefit or any other benefit under the laws of Congress.
John Paul Stevens: Yes, but may I interrupt there. I don't see why under your theory that the State must have a navigational purpose. Why couldn't the State under your theory decide, as Justice O'Connor suggested, they would like a little more territory and if they found an area in which there is no navigational problem and no environmental problem, would just build a jetty out for 2 miles for the express and sole purpose of getting more territory. It seems to me under your theory they could do that.
John G. Gissberg: Well, I think actually under what this Court may have said, that they can do that.
John Paul Stevens: That is a correct summary of your theory? They could do that, couldn't they?
John G. Gissberg: Let me clarify that, Justice Stevens, because this Court has said that unwarranted structures may be suspect, and unwarranted though in terms of navigation. So if a structure is being put up just for the sole purpose to extend the State's land, I believe that the laws that we are now operating under do not allow the Army Corps of Engineers to turn that down if it has any navigational purpose. But the--
Byron R. White: Well, this particular jetty could have been twice as long.
John G. Gissberg: --It was supposed to be, but it took too long to finish. Yes, of course, it could have been. It could have been 10 miles long.
Byron R. White: And you would say that the Federal Government would have to issue the permit.
John G. Gissberg: I would say that the Federal Government would not be able to deny the permit on the basis of changes in the ambulatory boundary. If a 20-mile long causeway serves 1 percent more of the navigational benefit than a 2 mile causeway and the interference to navigation because of the extra 8 miles is substantial, that is the judgment call that they have to make.
John Paul Stevens: But my hypothetical is that it is neutral on navigation, it is either high enough so the ships can go under or something, but assuming my hypothetical has absolutely no impact on either navigation or environment, it is just a way of acquiring territory, sticking a 10-mile jetty out into the ocean, that you could do, I think under your theory because Congress hasn't thought about the problem and--
John G. Gissberg: They haven't--
Speaker: --and hasn't legislated against it.
John G. Gissberg: --Justice Stevens, they haven't thought about the problem, but this Court has thought about the problem in two cases. One of them is the California II case in '65, where this Court said that unwarranted structures could be addressed by the parties. The second one, though, is the Texas Boundary case which is cited in the Plaintiff's reply brief at page 11 and it is not cited for that proposition, but in that case, the Court, this Court said that... they were talking about a change that would let the State of Texas have a... would get some extra mineral land. And this Court said that, quote, any alleged inequitable treatment and detriment to the orderly mineral development by allowing ambulations must be resolved by looking to Congress for relief. And we believe that is exactly what is done here. The Corps of Engineers is not going to Congress for this authority. They are inventing this authority on their own and they don't... Congress hasn't given them the statutory authority to do that.
David H. Souter: Mr. Gissberg, has Congress given you or given the State of Alaska the statutory authority to alienate what it might get under this theory of 3 miles ambulatory boundary?
John G. Gissberg: Justice Souter, our State's 3-mile limit lands are subject to a public trust doctrine, and under our State constitution and State law, we may not alienate those properties except to another governmental entity, for example, the City of Nome. We did in fact give 17 acres to the City of Nome to build the causeway.
David H. Souter: If State law allowed you to do it, is there anything in the Submerged Lands Act which precludes your alienation for some other purpose?
John G. Gissberg: No, Justice Souter, because the Submerged Lands Act in opposition to the Outer Continental Shelf Lands Act states that it is in the public interest to grant to the States title to and ownership of the submerged lands.
David H. Souter: So your argument is strictly that the Corps does not have the power to require and not that you do not have the power under Federal law to alienate?
John G. Gissberg: Oh, yes, Your Honor.
Speaker: Okay.
John G. Gissberg: The Federal law does not affect the State's right to alienate.
Anthony M. Kennedy: Does any governmental entity which is the restriction you mentioned in your anti-alienation statutes include a grant to the Government of the United States?
John G. Gissberg: Justice Kennedy, we could grant to the United States, to a city, a municipality, any governmental agency.
Anthony M. Kennedy: So if that is true, if your counsel had said, you know, this is a difficult area of interpretation and you had offered initially to waive, the Government could have entered a contract with you to waive the extension of the boundary, I take it?
John G. Gissberg: It would have been our property and we would have had title and ownership to it and I think we could have entered into an agreement with them. Let's say for some reason the Government did need that property, the Navy is going to build a base or there is some fish spotting device out there run by the National Marine Fisheries Service, and they need it. I think it becomes our property, the 730 acres, we could trade it for property someplace down the beach or--
Anthony M. Kennedy: Then if the rights of the parties are in doubt, I can't see why that isn't also a ground for the Government to insist on the contract, simply to avoid litigation.
John G. Gissberg: --I think that is probably true, Justice Kennedy, but we do not believe that the rights of the parties are in any doubt at all. We believe the Submerged Lands Act squarely this addresses this issue and is absolutely clear. It says that the States get 3 miles from an ambulatory baseline--
Anthony M. Kennedy: You don't think reasonable people could disagree on that proposition?
John G. Gissberg: --Well, I certainly do not disagree with what Justice Kennedy has said. We have talked about this in some detail. This is not just affecting the State of Alaska. It is not just affecting the Nome causeway. The City of Nome happened to apply for this particular coastal construction project. The Corps of Engineers permits projects on the coasts of the United States all over the country. We found 12 with disclaimers so far. We now have evidence from their... they have an internal guidance that has just come out in which they say that the district engineer, whenever there is a project that may effect the baseline will request a waiver from the affected State. So this is not going to be subject to any kind of an agreement anymore. And that is one of the problems with the Courts suggestion to us in California II. They said we could talk about this through legislation or agreement. But the State of Alaska is over here, the City of Nome applies for the permit to the Army. A year later the Army writes the city of Nome and the State of Alaska a letter in July of 1983 saying we are not going to give this permit unless the State waives its claims out here. That is not an agreement.
Byron R. White: Let's say however that we say that the Corps may turn down the permit because of boundary considerations, but that it cannot condition... impose the condition. Let's assume that that is logically consistent and legally consistent. Is that the end of the matter? You don't think there is any way that the State then may arrange with the Government to build the causeway and not change the boundary?
John G. Gissberg: Justice White, is the example that they can, they can turn down... they don't have to give the permit, but they can condition--
Byron R. White: They may turn down the permit, but they can't it and condition it.
John G. Gissberg: --Okay, I understand. In that case, and if Congress gave them that authority--
Byron R. White: No, no, let's forget about Congress. There wouldn't be any way for the Government and the State to issue the permit and not have the boundary changed?
John G. Gissberg: --Justice White, I think if the Government would recognize that maybe for an instant that becomes our property then we can clearly enter into an agreement with it, but that would take a fundamental step for them to take that they haven't taken yet. So we would not enter into an agreement about something that they won't let us own.
David H. Souter: Do you claim that if you entered into the agreement, if for example you and the Federal Government said, look, we will agree to disagree as to whether we get this for an instant or not, and you simply entered into an agreement which you requested, not a condition of the approval, you requested to enter into this agreement. Do you claim that the agreement would not be a valid agreement and a binding alienation, in light of your answer to Justice Kennedy?
John G. Gissberg: I think that it would be. We would have to interpret the rights to the 730 acres in one way, even though they would disagree.
David H. Souter: So all you are really saying is, we just wouldn't do it unless they will salve our lust for title by agreeing that we get it for at least an instant, we simply wouldn't agree, but you admit you could agree and that the answer to Justice White's question is, it is not the end of the matter, and Nome could end up building its causeway anyway after we had agreed voluntarily to alienate what we claim we had.
John G. Gissberg: Well, we sure wouldn't do it voluntarily. Nome would have to pay us something for giving them... it would be kind of complicated.
Speaker: It would depend on how much you want the jetty.
John G. Gissberg: We don't want it... yes, it would, and that is the problem, there are a lot of projects in the State of Alaska, this isn't just the City of Nome that is doing it. It is private people that have things they might want to put out there and the State of Alaska now has a veto power over it. Let the Army Corps of Engineers get a permit from the Navy to build a causeway down in Adak and ask us for a waiver and maybe we will balance that off against the Nome waiver. But this is the problem in this kind of a case. It is open-ended. There is no rhyme or reason to it. It is something that the Corps of Engineers has invented--
William H. Rehnquist: The State of Alaska can always say to Nome, if they really don't approve of the project, Nome, we won't grant any waiver.
John G. Gissberg: --The State of Alaska, under what the Army Corps of Engineers is doing, could do that. We don't think that is what Congress thought any of the States could do. This Court has said that those grants are unconditional and--
William H. Rehnquist: But at any rate, the State of Alaska is not the prisoner of Nome's desires for a long causeway.
John G. Gissberg: --No, Nome is who is being held hostage here by the State of Alaska and the Army Corps of Engineers, actually. We think that what the Army Corps here is doing is not only misinterpreting, they are ignoring the one act that addresses submerged lands, and they have to rely on the Rivers and Harbors Appropriation Act because that brings the Secretary of the Army into... gives him some authority to issue exceptions to these permits. But under statutory construction rules, the only governmental agency that is allowed to interpret statutes is the one that has the power, and so they can't interpret the Submerged Lands Act. If they did, they would find there are no gaps in it. It is absolutely clear and that is why they have to go all the way back to 1899 and try to create this authority. They shouldn't be doing that. They should be going to Congress for this authority. There are two things that they also miss in addition to the statutory interpretation problem. One is the separation of powers. They are pretending like they are Congress. Congress has said that they should do this. This Court in the Texas Boundary case said that anything that changes the ambulations should be resolved by looking to Congress. They have also upset the balance of federalism because the people that decide what the States' rights are are the duly elected representatives of Congress, of which the State of Alaska happens at this time to have three. We have nobody sitting on the Army Corps of Engineers. And the Solicitor General's Office has said to this Court that the status quo is to be maintained and so we have to have a fixed boundary. Alaska now has a 3-mile limit that becomes 2-1/2 miles off Nome. That is not the status quo. The status quo is an ambulatory baseline. It is a functional formula that this Court laid down in 1965 based on the law of the Sea Convention. The formula is what is stable. Everybody can figure out where the 3-mile limit is and where the State's lands are. Under the Government's formula you have to be able to know whether or not... right above the Nome causeway is another causeway. Right below it is the Cape Nome causeway. Neither of them have disclaimers on it. The 3-mile limit pops out in those places, as it pops out at the 12-mile Federal territorial sea. So we totally disagree with the implications of what is happening here. It is not creating... what they are doing is not creating any stability. It is causing additional confusion, and we think this Court ought to correct it.
William H. Rehnquist: Thank you, Mr. Gissberg. Mr. Minear, do you have rebuttal? You have 8 minutes remaining.
Jeffrey P. Minear: Yes, Your Honor, there are a few points I would like to make. First, I think it is important to focus on what the Army Corps of Engineers is faced with in these circumstances, and it is a very practical problem. Structures are built or parties apply to build structures in navigable waters, and what the Army Corps of Engineers does is attempt to evaluate all of the consequences of placing that structure in the water, both the physical and legal. One of the consequences can be a change in the boundary and what the Army attempts to do is to maintain the status quo. Now by keeping the boundary at the same location, that really serves the purposes of both acts here, both the Submerged Lands Act and the Outer Continental Shelf Lands Act. If gives effect to both of those statutes because both parties get what they had originally planned on receiving.
William H. Rehnquist: But if stability isn't the law of the boundary, I don't really see much to that point, Mr. Minear. If the law says that the boundary changes when the land form changes, to say that we are going to exact waivers so that that principle doesn't come into operation, I don't see it as much of a principle.
Jeffrey P. Minear: Your Honor, first, with respect to the notion, the questions concerning the ambulatory nature of the boundary. Congress has never stated in the Submerged Lands Act that the boundary is ambulatory. That was this Court's interpretation in California II, the same decision in which this Court recognized that the United States could reach agreement about these matters.
Speaker: United States could what?
Jeffrey P. Minear: This is the same case in which the Court recognized that the United States could reach agreements about these matters, California II.
William H. Rehnquist: Pull the lectern up a little bit. I have a hard time hearing you.
Jeffrey P. Minear: With respect to the question of whether the boundary is ambulatory, the Congress did not state that policy; rather, the Court adopted that policy in California II. Subsequently, Congress provided an avenue for fixing the boundaries in the Submerged Lands Act in section 1301(b). It provides that boundaries can now be fixed by decree of this Court. But more importantly, I think--
Byron R. White: In which event, it would not change thereafter?
Jeffrey P. Minear: --That is right.
Byron R. White: No matter how much erosion?
Jeffrey P. Minear: That is correct. It will be fixed. Now, I think it is important to recall that the question at stake here really is title to these submerged lands and to the mineral resources. As far as the uncertainty that might exist because of disclaimers, that is rectified simply by a party who is interested in obtaining a lease, checking with the appropriate governmental authority for the location of the boundary. You perform a title search in the same way that you would assert in any other type of real estate, and there is nothing unusual about that. With respect to the question that Justice Scalia raised at the outset about the accretion from the natural structure or from the artificial structure, I have been informed there is case law in the States that indicates that once an artificial structure is built in a navigable river, the subsequent accretion and erosion does not change the boundary if it is a consequence of the building of the structure. Perhaps that same principle would apply in the outer continental shelf and the boundary, the coastline situation. I don't think we have any cases on that with respect to Federal--
Sandra Day O'Connor: Mr. Minear, do I understand that the policy of the Corps of Engineers now would be that even if a private landowner wanted to repair or construct a dock on the shoreline, that permission would be given only if the State in which it is located executes some kind of waiver?
Jeffrey P. Minear: --Not necessarily.
Sandra Day O'Connor: Is that the universal policy to be followed now by the Corps?
Jeffrey P. Minear: This refers to harbor works. A dock that does not have a low water mark would not affect a change in the coastline for purposes of the Submerged Lands Act. That was decided in California III. So we are talking about primarily very large structures, causeways, other major buildings that will have a significant effect, and in fact, our records indicate there have been about 17 instances since 1970 where this problem has arisen. Now with respect to Justice Stevens' observation that the State could build a structure simply to obtain offshore lands, imagine that consequence in the case of Prudhoe Bay for instance, where there are very valuable known mineral resources that are located there. This could result, and again, without any formal Government consideration, of a massive transfer of valuable mineral resources.
Antonin Scalia: Congress can pass a statute... I mean, if that happens... that is not something that the Federal Government is disempowered from preventing. You are just saying that under the current statute it couldn't be prevented, but as soon as somebody tried it, you would get a statute pretty quickly, don't you think?
Jeffrey P. Minear: Perhaps, but I don't think Congress should be forced to act on these matters when we have an expert agency that can in fact deal with these problems. Also take into account the situation, if there were leases in effect offshore of Nome, if we had actually leased that property, the extension of the boundary would make those leaseholders good faith trespassers and could put their interests at risk. There is a very strong interest here in maintaining a Federal/State boundary and not having it change by artificial structures. That serves both the Federal Government's interests and the States' government's interests, and we think this Court should recognize and uphold that principle and grant our motion for summary judgment.
Byron R. White: Do you want to change your answer to my question, just before you saw down before or not? Whether if you don't have the power to condition, you don't have the power to turn the permit down.
Jeffrey P. Minear: I believe we should have the power to turn down the permit, yes. It seems to me--
Byron R. White: Even if you can't condition it?
Jeffrey P. Minear: --Even if we can't condition it. It seems illogical to say that we couldn't condition it, I suppose that is where the problem really is. As long as the condition applies with the rationale in Nollan, we should be able to impose conditions that offer a less drastic alternative to outright prohibition. If there are no further questions--
William H. Rehnquist: Thank you, Mr. Minear. The case is submitted.