Opinion of the Court

Survey in reserving Utah Lake, taken together with 1890 Act providing that reservoir sites selected by the Geological Survey "shall remain segregated and reserved from entry or settlement," signaled Congress' ratification of the reservation of the lake bed; rejecting claim on the ground that Congress was not on notice that the Geological Survey had reserved the bed of the lake); Holden v. Joy, 17 Wall. 211, 247 (1872) (rejecting Property Clause challenge to President's treaty with Cherokee Nation; although terms of treaty exceeded express delegation of authority by Congress to the President, Congress had "repeatedly recognized" the validity of the treaty by enacting appropriation statutes). As discussed supra, at 38-41, the 1923 Executive Order reflected a clear intent to include submerged lands within the Reserve. That instrument placed Congress on notice that the President had construed his reservation authority to extend to submerged lands and had exercised that authority to set aside uplands and submerged lands in the Reserve to secure a source of oil for the Navy. Congress acknowledged the United States' ownership of and jurisdiction over the Reserve in § 11(b) of the Statehood Act. Accordingly, Congress ratified the inclusion of submerged lands within the Reserve, whether or not it had intended the President's reservation authority under the Pickett Act to extend to such lands.

D

In sum, we conclude that the United States retained ownership of submerged lands beneath certain coastal features within the Reserve at Alaska's statehood. Under the strict standards of Utah Div. of State Lands, the Executive Order of 1923 reflected a clear intent to include submerged lands within the Reserve. In addition to the fact that the Order refers to coastal features and necessarily covers the tidelands, excluding submerged lands beneath the coastal features would have been inconsistent with the purpose of the Reserve-to secure a supply of oil that would necessarily

Opinion of the Court

exist beneath both submerged lands and uplands. Section 11(b) of the Alaska Statehood Act, which noted that the United States owned the Reserve and which included a statement of exclusive legislative jurisdiction under the Enclave Clause, reflects Congress' intent to ratify the inclusion of submerged lands within the Reserve and to defeat the State's title to those lands.

V

The United States excepts to the Master's conclusion that submerged lands within a federal reservation in northeastern Alaska, now known as the Arctic National Wildlife Refuge, passed to Alaska upon its admission to the Union in 1959. In November 1957, the Department of the Interior's Bureau of Sport Fisheries and Wildlife submitted an application to the Secretary of the Interior for withdrawal of 8.9 million acres of land "to establish an Arctic Wildlife Range within all or such portion of the described lands as may be finally determined to be necessary for the preservation of the wildlife and wilderness resources of that region of northeastern Alaska." Alaska Exh. 81 (Application for Withdrawal by Public Land Order, p. 1). This application was still pending in July 1958, when Congress passed the Alaska Statehood Act, and in January 1959, when Alaska was formally admitted to the Union. On December 6, 1960, the Secretary of the Interior issued Public Land Order 2214, which "reserved" the area "for use of the United States Fish and Wildlife Service as the Arctic National Wildlife Range." 25 Fed. Reg. 12598. In 1980, Congress expanded the Range to include an additional 9.2 million acres and renamed it the Arctic National Wildlife Refuge. Pub. L. 96-487, § 303(2)(A), 94 Stat. 2390.

Before the Master, the parties disputed whether the 1957 Bureau of Sport Fisheries and Wildlife application for withdrawal and creation of the Range-filed before but granted after Alaska's admission to the Union-could prevent title to submerged lands within the Range from passing to Alaska at

Opinion of the Court

statehood. The Alaska Statehood Act transferred to Alaska certain real property used for the conservation and protection of wildlife, but withheld from the State "lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife." Pub. L. 85-508, §6(e), 72 Stat. 341. Among other things, the United States argued that the lands within the Range, including coastal submerged lands, had been "set apart" by the combined effect of the application and a Department of the Interior regulation in force when the application was filed and when Congress passed the Alaska Statehood Act. That regulation provided that the filing of an application "shall temporarily segregate such lands from settlement, location, sale, selection, entry, lease, and other forms of disposal under the public land laws, including the mining and the mineral leasing laws, to the extent that the withdrawal or reservation applied for, if effected, would prevent such forms of disposal." 43 CFR § 295.11(a) (Supp. 1958). Accordingly, under the United States' principal theory, the 1957 Bureau of Sport Fisheries and Wildlife application had the legal effect of segregating or "setting apart" all lands within the projected boundaries of the Range, including submerged lands, as a wildlife refuge. If this were so, § 6(e) of the Alaska Statehood Act withheld such lands from Alaska at statehood.

The Special Master rejected this approach. He focused on the fact that § 6(e) prevents transfer only of those lands “set apart as refuges or reservations for the protection of wildlife." (Emphasis added.) The Master concluded that, taken together, the 1957 application and the Department of the Interior regulation "caused land to be set apart for the purpose of a wildlife reservation," but found that the land "was not yet set apart as a refuge or reservation" upon Alaska's admission to the Union, because the application had not yet been granted. Report 464 (first emphasis added). Since the application and regulation did not withhold the lands within the Range from Alaska under § 6(e) of the Alaska

Opinion of the Court

Statehood Act, the Master concluded that coastal submerged lands within the Range passed to Alaska upon its admission to the Union. Because real property used for conservation of wildlife, but not set apart as a wildlife refuge or reservation, would have been transferred to Alaska, the Master's approach arguably calls into question federal ownership of uplands as well as submerged lands within the Range. See infra, at 60-61.

Alaska had argued in the alternative that, even if the application was effective to prevent submerged lands within the Range from passing to Alaska at statehood, the boundaries of the Range did not embrace certain submerged lands between the mainland and the barrier islands along Alaska's northeastern coast. The Master's recommendation in Alaska's favor on the effect of the application, if accepted, would have made irrelevant the dispute concerning the boundaries of the Range. The Master nevertheless addressed Alaska's alternative argument and resolved the boundary dispute in the United States' favor. Report 478-495. The Master also considered the effect of Montana and Utah Div. of State Lands on Alaska's ownership of submerged lands within the Range. In supplemental briefing submitted after we decided those cases, Alaska argued that the 1957 application reflected no clear intent to include submerged lands within the Range. Even if the application embraced submerged lands, Alaska asserted, the United States had identified no evidence that Congress intended to defeat Alaska's title to those lands. Relying principally on a statement of justification attached to the 1957 application, the Master found a clear intent to include submerged lands within the Range. That statement of justification described the seacoast as "provid[ing] habitat for polar bears, Arctic foxes, seals, and whales," Alaska Exh. 16 (Memorandum from the Director of the Bureau of Sport Fisheries and Wildlife to the Bureau of Land Management, Nov. 7, 1957, p. 2); the Master reasoned that the drafters of the application "[could] not have thought

Opinion of the Court

this habitat was only upland," Report 496. In addition, the Master noted that the original boundary of the Range was the high water mark along the Arctic Coast; the drafters changed the boundary to the extreme low water mark so as to include the tidelands within the Range. Ibid. The Master also found that the application reflected an intent to defeat Alaska's title, pointing out that the reservation was "meant to have permanent effect," not merely to hold whatever submerged lands were made part of the Range until Alaska's admission to the Union. Ibid.

The United States excepts to the Special Master's conclusion that the 1957 application and the Department of the Interior regulation, read together, did not have the effect of "setting apart" lands within the Range "as [a] refug[e] . . . for the protection of wildlife." Alaska defends the Master's conclusion concerning the legal effect of the application. Alaska also defends on alternative grounds the ultimate conclusion that submerged lands within the Range passed to Alaska, arguing that the United States did not clearly intend to include submerged lands within the Range and that the United States did not clearly intend to defeat Alaska's title to those lands. In essence, Alaska challenges the Master's conclusion that the 1957 application met the requirements of Montana and Utah Div. of State Lands-a conclusion appearing in a section of the Report to which it did not except. See Report 495-499. As will become clear, however, although the Master considered separately whether the application had the effect of "setting apart" lands within the Range within the meaning of § 6(e) and whether the requirements of Montana and Utah Div. of State Lands had been met, those inquiries overlap considerably. We therefore must address the application of Montana and Utah Div. of State Lands to this case.

A

As with the Reserve, the boundaries of the Range, as drawn by the Master, encompass both submerged lands be