Proof
held insufficient to establish Cook Inlet as a
historic bay, and hence the United States, as against Alaska, has
paramount rights to the land beneath the waters of the lower, or
seaward, portion of the inlet. Pp.
422 U. S.
189-204.
(a) The sparse evidence as to Russia's exercise of authority
over the lower inlet during the period of Russian sovereignty is
insufficient to demonstrate the exercise of authority essential to
the establishment of a historic bay. Pp.
422 U. S.
190-192.
(b) Nor was the enforcement of fishing and wildlife regulations
under various federal statutes and an Executive Order during the
period of United States sovereignty over the Territory of Alaska
sufficient in scope to establish historic title to Cook Inlet as
inland waters, especially where it appears that the geographic
scope of such enforcement efforts was determined primarily, if not
exclusively, by the needs of effective management of the fish and
game population involved, rather than as an intended assertion of
territorial sovereignty to exclude all foreign vessels and
navigation. Pp.
422 U. S.
192-199.
(c) The mere failure of any foreign nation to protest the
authority asserted by the United States during the territorial
period is inadequate proof of the acquiescence essential to
historic title. It must also be shown that the foreign governments
knew or should have known of the authority being asserted, and here
the routine enforcement of domestic fish and game regulations was
insufficient to inform those governments of any claim of dominion.
Pp.
422 U. S.
199-200.
(d) The fact that Alaska, during its statehood, has enforced
fishing regulations in the same way as the United States did during
the territorial period is likewise insufficient to give rise to
historic title to Cook Inlet as inland waters. Pp.
422 U. S.
200-201.
(e) Nor is Alaska's arrest of two Japanese fishing vessels in
the Shelikof Strait in 1962 adequate to establish historic title.
That incident was an exercise of sovereignty, if at all, only over
the waters of Shelikof Strait, and, even if considered as an
assertion
Page 422 U. S. 185
of authority over the waters of Cook Inlet, the incident was not
sufficiently unambiguous to serve as the basis of historic title:
Alaska, as against the Japanese Government, claimed the waters as
inland waters, but the United States neither supported nor
disavowed the State's position. And regardless of how the incident
is viewed, it is impossible to conclude that Alaska's exercise of
sovereignty was acquiesced in by the Japanese Government, which
immediately protested the incident and has never acceded to
Alaska's position. Pp.
422 U. S.
201-203.
497 F.2d 1155, reversed and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, MARSHALL, and POWELL, JJ.,
joined. STEWART and REHNQUIST, JJ., filed a dissenting statement,
post, p.
422 U. S. 204.
DOUGLAS, J., took no part in the consideration or decision of the
case.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
The issue here is whether the body of water known as Cook Inlet
is a historic bay. [
Footnote 1]
The inlet extends northeastward well over 150 miles into the
Alaskan land mass, with Kenai Peninsula to the southeast and the
Chigmit Mountains to the northwest. The city of Anchorage is near
the head of the inlet. The upper, or inner portion,
Page 422 U. S. 186
of the inlet is not in dispute, for that part is conceded to be
inland waters subject to Alaska's sovereignty.
If the inlet is a historic bay, the State of Alaska possesses
sovereignty over the land beneath the waters of the lower, or
seaward, portion of the inlet. If the inlet is not a historic bay,
the United States, as against the State, has paramount rights to
the subsurface lands in question.
I
In early 1967, the State of Alaska offered 2,500 acres of
submerged lands in lower Cook Inlet for a competitive oil and gas
lease sale. The tract in question is more than three geographical
miles from the shore of the inlet, and is seaward more than three
miles from a line across the inlet at Kalgin Island, where the
headlands are about 24 miles apart, as contrasted with 47 miles at
the natural entrance at Cape Douglas. In the view of the United
States, the Kalgin Island line marks the limit of the portion of
the inlet that qualifies as inland waters. The United States,
contending that the lower inlet constitutes high seas, brought suit
in the United States District Court for the District of Alaska to
quiet title and for injunctive relief against the State. [
Footnote 2] Alaska defended on the
ground that the inlet, in its entirety, was within the accepted
definition of a "historic bay," and thus constituted inland waters
properly subject to state sovereignty. Alaska prevailed in the
District Court.
352 F.
Supp. 815 (1972). The United States Court of Appeals for the
Ninth Circuit affirmed with a per curiam opinion. 497 F.2d 1155
(1974). We granted certiorari
Page 422 U. S. 187
because of the importance of the litigation and because the case
presented a substantial question concerning the proof necessary to
establish a body of water as a historic bay. 419 U.S. 1045
(1974).
II
State sovereignty over submerged lands rests on the Submerged
Lands Act of 1953, 67 Stat. 29, 43 U.S.C. § 1301-1315. [
Footnote 3] By this Act, Congress
effectively confirmed to the States the ownership of submerged
lands within three miles of their coastlines. [
Footnote 4]
See United States v. Maine,
420 U. S. 515
(1975). "Coast line" was defined in terms not only of land but, as
well, of "the seaward
Page 422 U. S. 188
limit of inland waters." [
Footnote 5] The term "inland waters" was left
undefined.
In
United States v. California, 381 U.
S. 139,
381 U. S.
161-167 (1965), the Court concluded that the definitions
provided in the Convention on the Territorial Sea and the
Contiguous Zone, [1964] 2 U.S.T. 1606, T.I.A.S. No. 5639, should be
adopted for purposes of the Submerged Lands Act.
See also
United States v. Louisiana (Louisiana Boundary Case),
394 U. S. 11,
394 U. S. 35
(1969). Under Art. 7 of the Convention, [
Footnote 6] and particularly �� 5
Page 422 U. S. 189
and 6 thereof, a bay with natural entrance points separated by
more than 24 miles is considered as inland water only if it is a
"historic" bay. Since the distance between the natural entrance
points to Cook Inlet is greatly in excess of 24 miles, the parties
agree that Alaska must demonstrate that the inlet is a historic bay
in order successfully to claim sovereignty over its lower waters
and the land beneath those waters. [
Footnote 7]
The term "historic bay" is not defined in the Convention. The
Court, however, has stated that, in order to establish that a body
of water is a historic bay, a coastal nation must have
"traditionally asserted and maintained dominion with the
acquiescence of foreign nations."
United States v.
California, 381 U.S. at
381 U. S. 172.
Furthermore, the Court appears to have accepted the general view
that at least three factors are significant in the determination of
historic bay status: (1) the claiming nation must have exercised
authority over the area; (2) that exercise must have been
continuous; and (3) foreign states must have acquiesced in the
exercise of authority.
Louisiana Boundary Case, 394 U.S.
at
394 U. S. 75 and
23-24, n. 27. [
Footnote 8]
These were the general guidelines for the District Court and for
the Court of Appeals in the present case.
III
The District Court divided its findings on the exercise
Page 422 U. S. 190
of authority over lower Cook Inlet into three time periods,
namely, that of Russian sovereignty, that of United States
sovereignty, and that of Alaskan statehood. We discuss these in
turn.
A
The evidence that Russia exercised authority over lower Cook
Inlet as inland waters is understandably sparse. The District
Court, nonetheless, concluded that "Russia exercised sovereignty
over the disputed area of Cook Inlet." [
Footnote 9] The court based this conclusion on three
findings. First, by the early 1800's, there were four Russian
settlements on the shores of Cook Inlet. Second, about 1786, an
attempt by an English vessel to enter the inlet drew a volley of
cannon fire from a Russian fur trader in the vicinity of Port
Graham. Third, in 1821, Tsar Alexander I issued a ukase that
purported to exclude all foreign vessels from the waters within 100
miles of the Alaska coast. S. Exec. Doc. No. 106, 50th Cong., 2d
Sess., 20205 (1889).
We feel that none of these facts, as found by the District
Court, demonstrate the exercise of authority essential to the
establishment of a historic bay. The presence of early Russian
settlements on the shores of Cook Inlet certainly demonstrates the
existence of a claim to the land, but it gives little indication of
the authority Russia may have exerted over the vast expanse of
waters that constitutes the inlet. The incident of
Page 422 U. S. 191
the fur trader's firing on an English vessel near Port Graham
might be some evidence of a claim of sovereignty over the waters
involved, but the act appears to be that of a private citizen,
rather than of a government official. [
Footnote 10] In the absence of some evidence that the
trader was acting with governmental authority, the incident is
entitled to little legal significance. Moreover, under the
then-common Cannon Shot Rule, the firing of cannon from shore was
wholly consistent with the present position of the United States
that the inland waters of Alaska near Port Graham are to be
measured by the three-mile limit. [
Footnote 11] Finally, the imperial ukase of 1821 is
clearly inadequate as a demonstration of Russian authority over the
waters of Cook Inlet because, shortly after it had been issued, the
ukase was unequivocally
Page 422 U. S. 192
withdrawn in the face of vigorous protests from the United
States and England. [
Footnote
12]
B
In reviewing the period of United States sovereignty over the
Territory of Alaska, [
Footnote
13] the District Court found that there had been five separate
instances in which the Federal Government had exercised authority
over all the waters of Cook Inlet. Pet. for Cert. 26a-37a.
1.
Revised Statutes § 1956 (1878). Soon after Alaska
was ceded to the United States, Congress prohibited the killing of
sea otter and other fur-bearing animals "within the limits of said
territory, or in the waters thereof." Act of July 27, 1868, 15
Stat. 241, codified as Rev.Stat. § 1956 (1878). By itself, the
statutory language does not indicate whether the waters of lower
Cook Inlet were encompassed within the limits of Alaska "territory,
or in the waters thereof." The District Court, however, found that,
in 1892 and 1893, five American vessels were boarded more than
three miles from shore in the lower inlet by United States revenue
officials investigating possible violations of § 1956. [
Footnote 14] From these boardings
the
Page 422 U. S. 193
District Court concluded that the statutory prohibition was
enforced throughout Cook Inlet.
2.
The Alien Fishing Act of 1906. This Act, 34 Stat.
263, prohibited noncitizens of the United States from fishing by
commercial methods "in any of the waters of Alaska under the
jurisdiction of the United States." Once again, the bare language
of the statute fails to reveal the extent to which the prohibition
applied to the waters of lower Cook Inlet. There is no evidence in
the record and no findings by the District Court of any instance in
which the Alien Fishing Act was enforced in the waters of Cook
Inlet. [
Footnote 15]
3.
Executive Order No. 762. In 1922, President Harding
issued an Executive Order creating the Southwesten Alaska Fisheries
Reservation. Exec.Order No. 3752 (Nov. 3, 1922); 2 App. 676. The
Order subjected all commercial fishing within the reservation to
substantial regulation.
See Regulations for the
Administration of the Southwestern Alaska Fisheries Reservation,
Department of Commerce Circular No. 251, pp. 8-9 (9th ed., Jan. 9,
1923); 2 App. 678-679. The reservation was described in the Order
by a series of straight baselines to
Page 422 U. S. 194
encompass a substantial expanse of waters, and the regulations
promulgated pursuant to the Order by Secretary of Commerce Hoover
referred to and embraced "all the shores and waters of Cook
Inlet."
4.
The White Act. In 1924, Congress passed "An Act For
the protection of the fisheries of Alaska, and for other purposes,"
otherwise known as the White Act. C. 272, 43 Stat. 464. This
authorized the Secretary of Commerce to "set apart and reserve
fishing areas in any of the waters of Alaska over which the United
States has jurisdiction."
Ibid. The Act subjected
commercial fishing within the reserved waters to such regulations
as the Secretary might issue. From that time until Alaska
statehood, the regulations of the Secretary defined the waters set
aside pursuant to the Act to include all the waters of Cook Inlet.
The District Court found that there had been several instances of
enforcement of fishing regulations against American vessels more
than three miles from shore in lower Cook Inlet.
5.
The Gharrett-Scudder line. In 1957, representatives
of Canada and of the United States met to discuss the possibility
of prohibiting citizens of the two countries from fishing with nets
for salmon in international waters in the North Pacific. The
delegates generally agreed that the line used by the United States
for enforcing fishing regulations under the White Act and related
statutes would be used to delimit "offshore waters" for purposes of
the joint salmon fishing limitations. Since the Canadian delegates
felt that the description of the closing lines connecting headlands
in the Alaska fishery regulations were not definitive, they
requested a map showing the American line with greater precision.
Two United States Bureau of Fisheries employees, John T. Gharrett
and Henry Clay Scudder, prepared a chart of the Alaska coast with a
line reflecting the boundaries in
Page 422 U. S. 195
the then-current United States fishery regulations. This
so-called Gharrett-Scudder line enclosed all the waters of Cook
Inlet. Charts reflecting the line were transmitted to the Canadian
delegates. It is undisputed that the exact location of the
Gharrett-Scudder line was determined primarily with reference to
the needs of fishery management. [
Footnote 16] The maps were forwarded by the Bureau
Page 422 U. S. 196
of Fisheries to the State Department for transmittal to the
Canadian delegates with express disclaimers that the line was
intended to bear any relationship to the territorial waters of the
United States in a legal sense.
Based on the facts summarized above, the District Court
concluded that the United States had exercised authority over the
waters of lower Cook Inlet continuously from the Treaty of Cession
in 1867 until Alaska statehood. The District Court, of course, was
clearly correct insofar as it found that the United States had
exercised jurisdiction over lower Cook Inlet during the territorial
period
for the purpose of fish and wildlife management. It
is far from clear, however, that the District Court was correct in
concluding that the fact of enforcement of fish and wildlife
regulations was legally sufficient to demonstrate the type of
authority that must be exercised to establish title to a historic
bay.
In determining whether the enforcement of fish and wildlife
management regulations in Cook Inlet was an exercise of authority
sufficient to establish title to that body of water as a historic
bay, it is necessary to recall the threefold division of the sea
recognized in international law. As the Court stated in the
Louisiana Boundary Case:
"Under generally accepted principles of international law, the
navigable sea is divided into three zones, distinguished by the
nature of the control which the contiguous nation can exercise over
them. Nearest to the nation's shores are its inland, or internal
waters. These are subject to the complete sovereignty of the
nation, as much as if they were
Page 422 U. S. 197
a part of its land territory, and the coastal nation has the
privilege even to exclude foreign vessels altogether. Beyond the
inland waters, and measured from their seaward edge, is a belt
known as the marginal, or territorial, sea. Within it, the coastal
nation may exercise extensive control, but cannot deny the right of
innocent passage to foreign nations. Outside the territorial sea
are the high seas, which are international waters not subject to
the dominion of any single nation."
394 U.S. at
394 U. S. 22-23
(footnotes omitted).
We also recognized in the
Louisiana Boundary Case that
the exercise of authority necessary to establish historic title
must be commensurate in scope with the nature of the title claimed.
There, the State of Louisiana argued that the exercise of
jurisdiction over certain coastal waters for purposes of regulating
navigation had given rise to historic title over the waters in
question as inland waters. Since the navigation rules in question
had allowed the innocent passage of foreign vessels, a
characteristic of territorial seas, rather than of inland waters,
the Court concluded that the exercise of authority was not
sufficient in scope to establish historic title over the area as
inland waters.
Id. at
394 U. S.
24-26.
As has been noted, and as the parties agree, Alaska, in order to
prevail in this case, must establish historic title to Cook Inlet
as inland waters. For this showing, the exercise of sovereignty
must have been, historically, an assertion of power to exclude all
foreign vessels and navigation. The enforcement of fish and
wildlife regulations, as found and relied upon by the District
Court, was patently insufficient in scope to establish historic
title to Cook Inlet as inland waters.
Only one of the fishing regulations relied upon by the court,
the Alien Fishing Act, treated foreign vessels any
Page 422 U. S. 198
differently than it did American vessels. That Act, however, did
not purport to apply beyond the three-mile limit in Cook Inlet. It
simply applied to "the waters of Alaska under the jurisdiction of
the United States." 34 Stat. 263. The meaning of that general
statutory phrase, as applied to Cook Inlet, can only be surmised,
since there was not a single instance of enforcement to suggest
that the Act was applicable to foreign vessels in the waters beyond
the three-mile limit in lower Cook Inlet. The remainder of the fish
and wildlife regulations relied upon by the District Court clearly
were enforced throughout lower Cook Inlet for at least much of the
territorial period, but these regulations were not commensurate in
scope with the claim of exclusive dominion essential to historic
title over inland waters. Each afforded foreign vessels the same
rights as were enjoyed by American ships. To be sure, there were
instances of enforcement in the lower inlet, but, in each case, the
vessels involved were American. These incidents prove very little,
for the United States can and does enforce fish and wildlife
regulations against its own nationals, even on the high seas.
See, e.g., 38 Stat. 692, 16 U.S.C. § 781 (taking
commercial sponges in the Gulf of Mexico or the Straits of
Florida); 80 Stat. 1091, 16 U.S.C. § 1151 (taking fur seals in the
North Pacific Ocean); 86 Stat. 1032, as amended, 16 U.S.C. § 1372
(1970 ed., Supp. III) (taking marine mammals on the high seas).
See also Skiriotes v. Florida, 313 U. S.
69 (1941).
Our conclusion that the fact of enforcement of game and fish
regulations in Cook Inlet is inadequate, as a matter of law, to
establish historic title to the inlet as inland waters is not based
on mere technicality. The assertion of national jurisdiction over
coastal waters for purposes of fisheries management frequently
differs in geographic extent from the boundaries claimed as
inland
Page 422 U. S. 199
or even territorial waters.
See, e.g., Presidential
Proclamation No. 2668, 59 Stat. 885 (1945). This limited
circumscription of the traditional freedom of fishing on the high
seas is based, in part, on a recognition of the special interest
that a coastal state has in the preservation of the living
resources in the high seas adjacent to its territorial sea.
Convention on Fishing and Conservation of the Living Resources of
the High Seas, Art. 6, � 1, [1966] 1 U.S.T. 138, 141, T.I.A.S.
5969.
Even a casual examination of the facts relied upon by the
District Court in this case reveals that the geographic scope of
the fish and wildlife enforcement efforts was determined primarily,
if not exclusively, by the needs of effective management of the
fish and game population involved. Thus, for example, the
Gharrett-Scudder line, which the District Court considered "a
classic demonstration of the assertion by the United States
government of its claim to sovereignty over the whole of Cook
Inlet," Pet. for Cert. 37a, was drawn almost solely with reference
to the needs of the coastal salmon net fisheries, and was never
intended to depict the boundaries of the territorial waters of the
United States. Indeed, the very method of drawing the fishery
boundaries by use of straight baselines conflicted with this
country's traditional policy of measuring its territorial waters by
the sinuosity of the coast.
See United States v.
California, 381 U.S. at
381 U. S.
167-169.
Even if we could agree that the boundaries selected for purposes
of enforcing fish and wildlife regulations coincided with an
intended assertion of territorial sovereignty over Cook Inlet as
inland waters, we still would disagree with the District Court's
conclusion that historic title was established in the territorial
period. The court found that the third essential element of
historic title, acquiescence by foreign nations, was satisfied by
the failure
Page 422 U. S. 200
of any foreign nation to protest. Scholarly comment is divided
over whether the mere absence of opposition suffices to establish
title.
See Juridical Regime of Historic Waters, Including
Historic Bays, 2 Yearbook of the International Law Commission,
1962, pp. 1, 16-19 (U. N. Doc. A/CN.4/143). The Court previously
has noted this division, but has taken no position in the debate.
See Louisiana Boundary Case, 394 U.S. at
394 U. S. 23-24,
n. 27. In this case, we feel that something more than the mere
failure to object must be shown. The failure of other countries to
protest is meaningless unless it is shown that the governments of
those countries knew or reasonably should have known of the
authority being asserted. Many assertions of authority are such
clear expressions of exclusive sovereignty that they cannot be
mistaken by other governments. Other assertions of authority,
however, may not be so clear. One scholar notes:
"Thus, the placing of lights or beacons may sometimes appear to
be an act of sovereignty, while, in other circumstances, it may
have no such significance."
Juridical Regime of Historic Waters,
supra at 14. We
believe that the routine enforcement of domestic game and fish
regulations in Cook Inlet in the territorial period failed to
inform foreign governments of any claim of dominion. In the absence
of any awareness on the part of foreign governments of a claimed
territorial sovereignty over lower Cook Inlet, the failure of those
governments to protest is inadequate proof of the acquiescence
essential to historic title.
C
The District Court stressed two facts as evidence that Alaska
had exercised sovereignty over all the waters of Cook Inlet in the
recent period of Alaska statehood. First, the court found that,
since statehood, Alaska had enforced fishing regulations in
basically the same fashion
Page 422 U. S. 201
as had the United States during the territorial period. Second,
the court found that, in 1962, Alaska had arrested two vessels of a
Japanese fishing fleet in the Shelikof Strait. Since we have
concluded that the general enforcement of fishing regulations by
the United States in the territorial period was insufficient to
demonstrate sovereignty over Cook Inlet as inland waters, we also
must conclude that Alaska's following the same basic pattern of
enforcement is insufficient to give rise to the historic title now
claimed. The Shelikof Strait incident, however, deserves scrutiny
because the seizure of a foreign vessel more than three miles from
shore manifests an assertion of sovereignty to exclude foreign
vessels altogether.
The facts of the incident, for the most part, are undisputed. In
early 1962, a private commercial fishing enterprise in Japan,
Eastern Pacific Fisheries Company, publicly announced its intention
to send a fishing fleet into the waters of Cook Inlet and the
Shelikof Strait. Alaska officials learned of the plan through
newspaper accounts, and requested action by the Federal Government
to prevent entry of the fleet into the inlet and the strait. The
Federal Government, although thus forewarned of the intrusion,
significantly took no action. In March, 1962, the mothership Banshu
Maru 31 and five other vessels arrived at the Kodiak fishing
grounds. On April 5, the six vessels sailed north of the Barren
Islands into the lower portion of Cook Inlet. The vessels left the
inlet the next day without incident, and sailed southwest into the
Shelikof Strait. The vessels fished in the strait for approximately
10 days undisturbed. Then, on April 15, Alaska law enforcement
officials boarded two of the vessels in the Shelikof Strait. At the
time, at least one of the ships was more than three miles from
shore. The officials arrested three of the fleet's captains, and
charged
Page 422 U. S. 202
them with violating the state fishing regulations applicable to
the strait. On April 19, Eastern Pacific Fisheries Company and the
State of Alaska entered into an agreement whereby the State
released the company's employees and ships in return for a promise
from the company that it would not fish in the inlet or in the
strait pending judicial resolution of the State's jurisdiction to
enforce fishing regulations therein. 2 App. 1186-1188. The Japanese
Government did not participate in, or approve of, the agreement
between the company and Alaska. Instead, shortly after the
agreement was executed, Japan formally protested to the United
States Government. Our Government declined to take an official
position on the matter pending completion of the judicial
proceedings. Ultimately, the judicial proceedings were dismissed
without reaching any conclusion on the extent of Alaskan
jurisdiction over the strait. The Federal Government took no formal
position on the issue after the dismissal of the proceedings.
To the extent that the Shelikof Strait incident reveals a
determination on the part of Alaska to exclude all foreign vessels,
it must be viewed, to be sure, as an exercise of authority over the
waters in question as inland waters. Nevertheless, for several
reasons, we find the incident inadequate to establish historic
title to Cook Inlet as inland waters. First, the incident was an
exercise of sovereignty, if at all, only over the waters of
Shelikof Strait. The vessels were boarded in the strait, some 75
miles southwest from the nearest portion of the inlet. Although
Alaska officials knew of the fleet's earlier entry into Cook Inlet,
no action was taken to force the vessels to leave the inlet, and no
charges were filed for the intrusion into those waters. Second,
even if the events in Shelikof Strait could constitute an assertion
of authority over the waters of Cook Inlet as well
Page 422 U. S. 203
as those of the strait, we are not satisfied that the exercise
of authority was sufficiently unambiguous to serve as the basis of
historic title to inland waters. The adequacy of a claim to
historic title, even in a dispute between a State and the United
States, is measured primarily as an international, rather than a
purely domestic, claim.
See United States v. California,
381 U.S. at
381 U. S. 168;
Louisiana Boundary Case, 394 U.S. at
394 U. S. 77.
Viewed from the standpoint of the Japanese Government, the import
of the incident in the strait is far from clear. Alaska clearly
claimed the waters in question as inland waters, but the United
States neither supported nor disclaimed the State's position. Given
the ambiguity of the Federal Government's position, we cannot agree
that the assertion of sovereignty possessed the clarity essential
to a claim of historic title over inland waters. Finally,
regardless of how one views the Shelikof Strait incident, it is
impossible to conclude that the exercise of sovereignty was
acquiesced in by the Japanese Government. Japan immediately
protested the incident, and has never acceded to the position taken
by Alaska. Admittedly, the Eastern Pacific Fisheries Company
formally and tentatively agreed to respect the jurisdiction claimed
by Alaska but, as we have already noted, the acts of a private
citizen cannot be considered representative of a government's
position in the absence of some official license or other
governmental authority.
In sum, we hold that the District Court's conclusion that Cook
Inlet is a historic bay was based on an erroneous assessment of the
legal significance of the facts it had found. [
Footnote 17] The judgment of the Court of
Appeals,
Page 422 U. S. 204
accordingly, is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST would affirm the
judgment, believing that the findings of fact made by the District
Court and adopted by the Court of Appeals were not clearly
erroneous, and that both of those courts applied the correct legal
criteria in ruling that Cook Inlet is a historic bay.
[
Footnote 1]
Cook Inlet is larger than Great Salt Lake and Lake Ontario. It
is about the same size as Lake Erie. It dwarfs Chesapeake Bay,
Delaware Bay, and Long Island Sound, all of which the United States
has claimed as historic bays.
[
Footnote 2]
It would appear that the case qualifies, under Art. III, § 2,
cl. 2, of the Constitution, for our original jurisdiction.
United States v. West Virginia, 295 U.
S. 463,
295 U. S. 470
(1935). We are not enlightened as to why the United States chose
not to bring an original action in this Court.
[
Footnote 3]
Section 6(m) of the Alaska Statehood Act of July 7, 1958,
provides that the Submerged Lands Act "shall be applicable to the
State of Alaska and the said State shall have the same rights as do
existing States thereunder." 72 Stat. 343, note following 48 U.S.C.
c. 2. Section 2 of the Act provides:
"The State of Alaska shall consist of all the territory,
together with the territorial waters appurtenant thereto, now
included in the Territory of Alaska."
72 Stat. 339, note following 48 U.S.C. c. 2.
[
Footnote 4]
Section 3(a) of the Submerged Lands Act, 43 U.S.C. § 1311(a),
provides:
"It is determined and declared to be in the public interest that
(1) title to and ownership of the lands beneath navigable waters
within the boundaries of the respective States, and the natural
resources within such lands and waters, and (2) the right and power
to manage, administer, lease, develop, and use the said lands and
natural resources all in accordance with applicable State law be,
and they are, subject to the provisions hereof, recognized,
confirmed, established, and vested in and assigned to the
respective States. . . ."
Section 2(b), 43 U.S.C. § 1301(b), defines a State's
boundaries:
"The term 'boundaries' includes the seaward boundaries of a
State . . . as they existed at the time such State became a member
of the Union . . . but in no event shall the term 'boundaries' or
the term 'lands beneath navigable waters' be interpreted as
extending from the coast line more than three geographical miles
into the Atlantic Ocean or the Pacific Ocean. . . ."
[
Footnote 5]
Section 2(c) of the Act, 43 U.S.C. § 1301(c), reads:
"The term 'coast line' means the line of ordinary low water
along that portion of the coast which is in direct contact with the
open sea and the line marking the seaward limit of inland
waters."
[
Footnote 6]
The full text of Art. 7 is as follows:
"1. This article relates only to bays the coasts of which belong
to a single State."
"2. For the purposes of these articles, a bay is a well marked
indentation whose penetration is in such proportion to the width of
its mouth as to contain landlocked waters and constitute more than
a mere curvature of the coast. An indentation shall not, however,
be regarded as a bay unless its area is as large as, or larger
than, that of the semi-circle whose diameter is a line drawn across
the mouth of that indentation."
"3. For the purpose of measurement, the area of an indentation
is that lying between the low-water mark around the shore of the
indentation and a line joining the low-water marks of its natural
entrance points. Where, because of the presence of islands, an
indentation has more than one mouth, the semi-circle shall be drawn
on a line as long as the sum total of the lengths of the lines
across the different mouths. Islands within an indentation shall be
included as if they were part of the water areas of the
indentation."
"4. If the distance between the low-water marks of the natural
entrance points of a bay does not exceed twenty-four miles, a
closing line may be drawn between these two low-water marks, and
the waters enclosed thereby shall be considered as internal
waters."
"5. Where the distance between the low-water marks of the
natural entrance points of a bay exceeds twenty-four miles, a
straight baseline of twenty-four miles shall be drawn within the
bay in such a manner as to enclose the maximum area of water that
is possible with a line of that length."
"6. The foregoing provisions shall not apply to so-called
'historic' bays, or in any case where the straight baseline system
provided for in article 4 is applied."
[
Footnote 7]
Brief for Respondent 1; Brief for United States 2, 32.
[
Footnote 8]
Some disagreement exists as to whether there must be formal
acquiescence on the part of foreign states, or whether the mere
absence of opposition is sufficient.
United States v. Louisiana
(Louisiana Boundary Case), 394 U. S. 11,
394 U. S. 23-24,
n. 27 (1969).
[
Footnote 9]
Pet. for Cert. 25a. In addition to its reported opinion,
352 F.
Supp. 815 (Alaska 1972), the District Court made detailed
written findings and conclusions that are not published. These are
reproduced in the Petition for Certiorari 21a-55a. The reported
opinion of the District Court did not discuss the exercise of
sovereignty prior to 1906, but the unreported findings indicate
that the court relied on assertions of authority dating from
Russian territorial times as well as the early American period.
[
Footnote 10]
As with many colonial enterprises of the day, the governance of
Alaska in the Russian period, for the most part, was exercised
through semiprivate corporations.
See generally H.
Chevigny, Russian America: The Great Alaska Venture, 1741-1867
(1965). The most important of these corporations, the
Russian-American Company, was chartered in 1799, several years
after the incident near Port Graham.
Id. at 75. The record
and findings are silent on the relationship between the fur trader
and the interests asserted. Thus, we have no occasion to consider
whether the acts of a semiprivate colonial corporation are to be
given the same weight as the direct acts of a national government
for purposes of establishing a claim to historic waters.
[
Footnote 11]
The Cannon Shot Rule was to the effect that a coastal state
possessed sovereignty over the waters within range of cannon shot
from its shore. Many modern scholars believe that the present
3-mile limit is derived from the traditional range of 18th century
cannon. Kent, The Historical Origins of the Three-Mile Limit, 48
Am.J.Int'l L. 537 (1954); Walker, Territorial Waters: The Cannon
Shot Rule, 22 Brit.Y.B.Intl L. 210 (1945). The actual range of the
cannon fired by the fur trader is, of course, now irrelevant. The
significant fact is that the incident can be viewed as an assertion
of jurisdiction only over those waters in Cook Inlet that were
within range of cannon shot from shore.
[
Footnote 12]
For a discussion of the events surrounding the issuance and
withdrawal of the ukase,
see Chevigny,
supra,
n 10, at 17188.
[
Footnote 13]
By the Treaty of Cession in 1867, Russia ceded to the United
States "all the territory and dominion now possessed [by Russia] on
the continent of America and in the adjacent islands." 15 Stat.
539. The cession was effectively a quitclaim. It is undisputed that
the United States thereby acquired whatever dominion Russia had
possessed immediately prior to cession.
[
Footnote 14]
In June, 1892, a United States revenue cutter, the
Mohican, entered Cook Inlet to enforce Rev.Stat. § 1956.
The
Mohican arrested three American vessels in the lower
inlet on charges of violating the statute. The prosecutions
ultimately were dismissed on the ground that the vessels merely had
been purchasing pelts from natives who were authorized by § 1956 to
hunt sea otter for commercial sale.
See The Kodiak, 53 F.
126 (Alaska 1892). In 1893, two other American vessels were stopped
in the lower inlet by a revenue cutter. Since these vessels, like
the
Kodiak, were carrying only native hunting parties,
they were allowed to proceed without further incident. The District
Court made no findings about the enforcement of § 1956 after June,
1893.
[
Footnote 15]
The District Court acknowledged that no foreign vessels had ever
been arrested in Cook Inlet on charges of violating the Alien
Fishing Act. The court sought to explain this fact on the ground
that foreign vessels entered the inlet infrequently. The court
relied on statements of certain former wildlife officials that
"they would have taken affirmative action" against foreign vessels
if they had seen any in the inlet. 352 F. Supp. at 819-820. In the
absence of any actual enforcement or official announcement of
intentions to enforce the Alien Fishing Act in lower Cook Inlet,
the private intentions of witnesses are largely irrelevant.
[
Footnote 16]
The testimony of John T. Gharrett, who was called as a witness
by the State of Alaska, is indicative of the predominance of fish
and wildlife concerns in the preparation of the Gharrett-Scudder
line:
On direct examination:
"Q What was your role in the preparation of that line?"
"A My role was to decide where the line goes."
"Q Did you have assistance from anyone?"
"A Mr. Clay Scutter [
sic]."
"Q Has the line since been given any kind of name?"
"A Oh, I don't know since. At the time we drew it, rather than
to say 'a line beyond which we proposed,' et cetera, et cetera, we
called it the Gharrett-Scutter [
sic] line for short."
"Q In your preparation of the line, what criteria did you use
for placing the line on the chart?"
"A We used two basic criteria: (1) we wanted to encompass within
the line existing salmon net fisheries along the Coast of Alaska,
and (2) we wanted in some areas to allow for a modest, perhaps,
expansion of existing fisheries, salmon net fisheries."
1 App. 292-293.
On cross-examination by counsel for the United States:
"Q Did the lines you drew enclose areas in which you knew
foreigners had previously fished?"
"A Yes."
"Q By drawing these lines, did you intend to stop those
fisheries?"
"A No."
"Q Was the line you drew with Mr. Scutter [
sic]
intended to represent the outer limit of the territorial sea?"
"A No."
"Q Was the line you drew with Mr. Scutter [
sic]
intended to represent the baseline from which the territorial sea
was to be measured?"
"A No."
"Q Were the lines you drew with Mr. Scutter [
sic] used
for law enforcement purposes while you were in Alaska?"
"A No."
1 App. 294.
[
Footnote 17]
The United States has argued that historic title to Cook Inlet
is defeated by several United States disclaimers of sovereignty
over the waters of lower Cook Inlet. The Court previously has
discussed the importance of governmental disclaimers in weighing
claims to historic title in actions of this kind.
Louisiana
Boundary Case, 394 U.S. at
394 U. S. 778;
United States v. California, 381 U.
S. 139,
381 U. S. 175
(1965). The District Court rejected the disclaimers on the grounds
that they were ill-advised and, perhaps, self-serving. 352 F. Supp.
at 818-819. Inasmuch as we have concluded that none of the facts
relied upon by the District Court suffice to establish historic
title, we have no occasion to consider whether the disclaimers of
the United States could have defeated otherwise sufficient
facts.