« ForrigeFortsett »
Opinion of THOMAS, J.
(citing Alaska Exh. 81). The Government does not argue that the Refuge was "withdrawn” by the application within the meaning of $6(e). See Brief for United States 41; Report 463. Rather, the application falls within $6(e) because, we are told, the application “was the legal mechanism by which the Interior Department at that time ‘set apart public lands for the creation of a wildlife refuge.” Brief for United States 41. Under the Department of the Interior's regulations in effect at the time, the effect of an application was to “temporarily segregate such lands from settlement, location, sale, selection, entry, lease, and other forms of disposal under the public land laws, ... to the extent that the withdrawal or reservation applied for, if effected, would prevent such forms of disposal.” 43 CFR $295.11(a) (1958), 22 Fed. Reg. 6614 (1957). The regulation further provided that “[s]uch temporary segregation shall not affect the administrative jurisdiction over the segregated lands.” Ibid.
The Master acknowledged the regulation's effect, but determined that, while it may have been to “set apart” the submerged lands within the Range, the lands were not "set apart as a refuge or reservation.” Report 464 (emphasis in original). The majority disagrees, asserting that “[i]n the phrase 'set apart as [a] refug[e],' the word 'as' does not carry the requirement that the refuge be presently established.” Ante, at 59. “[T]he phrase,” concludes the majority, “aptly describes the administrative segregation of lands designated to become a wildlife refuge.” Ibid.
I disagree. As the language of the Bureau of Sport Fisheries and Wildlife's application made clear, at the time of the application (and at the time of statehood), no one could say with any certainty what lands—if any—included within the boundaries set forth in the application were at that time “designated to become a wildlife refuge.” See Report 447, Opinion of THOMAS, J.
6 The United States no longer contends that the application, of its own force, "expressly retained” submerged lands. See Brief for United States 29.
n. 1 (“'The purpose of this withdrawal is 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'” (quoting Alaska Exhibit 81, p. 1) (emphasis added). Not only was it unknown whether the lands (or any of them) would ultimately become a refuge or reservation, but also, during the pendency of the application, the "administrative jurisdiction” over the lands remained with the Bureau of Land Management. See 43 CFR $ 295.11(a) (1958). The Fish and Wildlife Service did not begin to administer the Refuge until the application for it was finally adopted after Alaska's statehood. See Report 464. As of the time of the Alaska Statehood Act, the lands within the application had no certainty of ever becoming a refuge or reservation, and were not then administered as
This is not to say that the application and regulation did not have any effect on the lands described in the application. The lands within the application were, by operation of the regulation, free from certain “forms of disposal” during the pendency of the application. 43 CFR § 295.11(a) (1958). I am willing to agree with the Master and the majority that, under the regulation, the lands were “set apart.” But, they were “set apart” temporarily and merely to preserve the status quo pending the Secretary's decision on the application in order that a decision by the Secretary that such lands should become a refuge or reservation would not be a nullity. Contrary to the suggestion of the United States that the regulation “was the legal mechanism by which the Interior Department at that time ‘set apart' public lands for the creation of a wildlife refuge,” Brief for United States 41, that regulation applied to all applications for withdrawals or reservations of land, not merely those to create wildlife refuges. See, e. g., 43 CFR § 295.9 (1958) (listing who may apply for withdrawals or reservation without limitation to agencies
Opinion of THOMAS, J.
seeking to create wildlife refuges). In my view, then, the Master overstated the effect of the application and regulation when he said that they “caused land to be set apart for the purpose of a wildlife reservation.” Report 464 (emphasis added). The effect of the set-apart was to ensure that any decision to create a wildlife refuge—if that were the decision ultimately made—would not be undermined by prior land actions adverse to any such decision. Only if the procedures that intervened between the Bureau's application and the Secretary's decision were merely ministerial, which the Government is wise not to argue, see 43 CFR § 295.12 (1958) (describing procedures), could the set-apart be accurately described as “for the purpose of a wildlife reservation.” Thus, it goes without saying that I do not agree with the majority's even more ambitious conclusion that the lands were "set apart as [a] refug[e].”?
Nor do I agree with the majority's contention that the Master's reading would render the “otherwise set apart” portion of $6(e) redundant, as only a "completed reservation" of land would prevent that land from passing to Alaska. Ante, at 59. I believe that the proviso in $ 6(e) is set forth in broad language in an attempt to capture all ways in which a refuge or reservation for the protection of wildlife can be created—not unlike Congress' attempt in $3(a) of the Submerged Lands Act to capture every way in which title to submerged lands could be conferred. See supra, at 63. Accordingly, Congress' use of the phrase "lands withdrawn or otherwise set apart” fairly encompasses every way in which lands can be segregated “as refuges or reservations.” Re
? That Alaska has acquiesced in the United States' ownership of the uplands within the boundaries of the Refuge says nothing whatever about Congress' intent in enacting the Alaska Statehood Act. Accordingly, I do not understand the majority's citation to this point. Ante, at 60. Indeed, if Alaska's poststatehood actions are relevant, it must surely be equally relevant that Alaska strenuously disputes ownership of the submerged lands within the Refuge.
Opinion of THOMAS, J.
quiring a completed refuge or reservation—by whatever means created-does not render any portion of the proviso redundant.
For these reasons, I conclude that the Master correctly determined that the Bureau's application was not sufficient for purposes of $ 6(e)'s proviso. I would overrule the United States' exception to his recommendation.
I would overrule Alaska's exceptions to the Master's recommendation on the method for determining the limits of Alaska's offshore submerged lands, and his recommendation concerning Dinkum Sands' insular status. I concur with the majority on these two points. I would also overrule the United States' exception to the Master's recommendation concerning the Arctic Wildlife Refuge. And, finally, I would sustain Alaska's objection to the Master's recommendation as to the ownership of submerged lands within National Petroleum Reserve No. 4. On these last two points, I respectfully dissent.
ABRAMS ET AL. V. JOHNSON ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
No. 95–1425. Argued December 9, 1996—Decided June 19, 1997*
The electoral district lines for Georgia's congressional delegation are here
a second time, appeal now being taken from the District Court's rulings and determinations on remand after Miller v. Johnson, 515 U. S. 900, in which this Court affirmed the finding that the State's Eleventh District was unconstitutional because race was a predominant factor in its drawing, id., at 915–917. The plan challenged contained three majorityblack districts, and after remand the complaint was amended to challenge another of these, the then-Second District, which the trial court found was also improperly drawn under Miller. The court deferred to Georgia's Legislature to draw a new plan, but the legislature could not reach agreement. The court then drew its own plan, containing but one majority-black district, the Fifth; this Court declined to stay the order; and the 1996 general elections were held under it. The appellants, various voters and the United States, now seek to set the trial court's plan aside, claiming that it does not adequately take into account the inter
ests of Georgia's black population. Held: The District Court's redistricting plan is not unconstitutional. Pp. 79-101.
(a) The trial court did not exceed its remedial power under the general rule of Upham v. Seamon, 456 U. S. 37, 43 (per curiam), whereby courts drawing voting district lines must be guided by the legislative policies underlying the existing plan, to the extent they do not lead to violations of the Constitution or the Voting Rights Act of 1965 (Act). Appellants' argument that this rule required the trial court to adopt three majority-black districts, as in the 1992 plan at issue in Miller, or two such districts, as in the Georgia Legislature's original 1991 plan, is unavailing, given the background against which the legislature—and later the trial court-attempted to draw districts. The considerable evidence of Justice Department pressure on Georgia to create the maximum number of majority-black districts, leading the state legislature to act based on an overriding concern with race, disturbed any sound basis for the trial court to defer to the 1991 plan; the unconstitutional pre
*Together with No. 95–1460, United States v. Johnson et al., also on appeal from the same court.