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The Coastal Boundaries of Naval Petroleum Reserve No. 4

by

George Wayne Skladel

George W. Skladel is a part-time lecturer in the Division ofBusiness, Economics, and Public Administration at theSenior College of the University of Alaska, Anchorage. Hehas t augh t and d one research in natural resourceadministration at the graduate level, and holds a master'sdegree in petroleum management from the University ofKansas and a master's degree in public administration fromthe University of Alaska. This paper, which examines thecoastal boundaries of Navel Petroleum Reserve Vo. 4, waswritten for a course in the law of the sea sponsored by theUniversity of Alaska Sea Grant Program,

Nancy R. Munro, Editor

Alaska Sea ~ Report No. 73-12

May 1974

University of AlaskaSea Grant Program

NATIONAL SEA GkAN1 DEPLISI10Rl 707 A St tPEIL UBRARY BUILDING An~~ Alld 99'

URI, NARRAGANSETT BAY CAMPUSNARRAGAIIKW, R I 02882

Introduction

8es Appemhx L

U.8. Comptroller General, Capability of the itravel Petroleum and Off Shak Reserves to fretErasrgcncy Otl Pfeeds, ComptroUer General Report No. 8.88927, October 5, l972, pp. 17-18.IbirL, p. 30.

The Judge Advocate General of the ll, S.Navy published a notice in the Federal Beg'<steron May 19, 1972, that corrected and redefinedthe boundaries ol' Naval Petroleum Reserve No. 4.The purposes of these boundary < hanges were toreflect more precise cadastral and geodesil sur-veys of the Reserve, and to cany oui. the mandateof Executive Order No. 3797-A, February 27,1923, in regard to the charting of the boundaryof the Reserve along the Arctic Orean,' 'l'hispaper will examine the implications of the Navy'schanges t.o the coastal boundary of the Reserve.

Naval Petroleum Reserve No. 4 en< ornpassesapprox ilnately 24 million acres of federal land onthe petroleum-rich North Slope of Alaska. Basedon data gal,hered during exploral,ions from 1944to 1953, the Navy esl,imates that the Reservecontains 100 million barrels of recoverahlr oil.The U. S, Geological Survey estimates that theReserve could contain as much as 10 to 33 billionbarrels of oil, considering the adjacent PrudhoeBay discoveries, At a price of $2 a barrel, thevalue of the Reserve's oil resources could rangefrom $200 million to $66 billion. Because of l,hevalue of the petroleum lands on the Slope, il. isimportant for landowners � federal and others � tofix the boundaries of the Rererve,

The coastal boundary of the Reserve bordersthe Arctic Ocean and extends from a point east ofthe mouth of the Colville River west to Icy Cape,President Warren G. Harding established thisboundary on February 27, 1923, when he setapart as a Naval Petroleum Reserve all the publiclands not then covered by valid entry, lease, orapplication as described in Executive Order No.3797-A see Appendix 11!:

The coast line to be followed shan be that of theocean side of the sandspits and ishutds forming theharrier reefs snd extending across small btgoonsfrosn point to point, where such barrier reefs are notover three miles off shore, except in l,he case ofPlover islands, from Point Tangent to Point Barrow... where it shall be the highest highweter newark on

the outer shore ol' the islands forming the groups

and extending hi lWei. n lhi rnoi.t;«llsri nt poinl ofthese islands and lh» sandinuw st i'n her ~ 'nd. la ca& sWhere the barrier reef is iivir l liri i niilis ilff uu>rel.he boundary shul! b» the ho ci u s�-t s,nii i i.',oi iiFthe COaat Of lhe mairiilarid. l,"nu>lvisis .iilili d!

ThiS cOaatal bOundary lint ri n; uni <i thi sam< forover 49 years until tiie Navy,uuunln< ~ d it»changes in 1972.

The changes gavt the Navy morc tcrritsiry,The coastline boundary was moved seaward fromthe highest highwater mark ln lht mr an high-water mark of th» tid». This < hunge tssimilatedcertain inland waters within various hays andlagoons into the Reserve. The r hange cont erningthe tidemark may not lu sign il'i cant from apractical standpoint since the vertical distancebet,ween the two tidcmarks is approximately sixinches, but it is significant, in principle, Assimila-tion of the inland waters is very important,because the Navy cia ilned title l.o pot,entiallyoil-r'ich, submerged lands. This took the landsaway from the State of Alaska which had receivedtitle to them by the Submerged Lands Act of1953.

The Navy maintains lt has t,he right to changel,he coastal boundary be<ause under the provi-sions of Sections 7421 l,hrough 7 t38, Title 1G ofthe United States Code, the Secretary of the Navyhas the authority and responsibility to administerNaval Petroleum Reserves. The Office of theJudge Advocate General of the Navy states thatthe new coastal boundary will be the officialboundary unless either the U, S. AttorneyGeneral decides the Navy action was illegal or theCongress enacts legislation to change the bound-ary.

The Navy's actions demand attention. Theseboundary changes have shifted ownership of fourcritical areas of submerged lands iHarrison Bay,Smith Bay, Peard Bay, and Kasegaluk Lagoon!from the State of Alaska to the Navy, An analysisof the criteria for coastal boundary determina-tions and their application to the Pet 4 situationseems necessary.

11, '1'hc C'oastline as l!efincd by theSuliniergcd l.ands Act of 1953

'1'h<' f iiii<1'1111<'iitill <l<>niestic law that detcr-miries Ili«<>astline <if th< vari<i<is sl:it<. is '1'li<Sutirni rg«I l,an<is Act <>f 1115>:l. S«' li<iri 2>t< ! oflhc Ai'I d<'fiilcs 'ttle 1<'rill. '«'>i<sr lllic, 'ls '« '<>ril.p<is!le I <11«' '<!<is<st ing <>f ti<it 11 tli<' I'In«' if<>rdinary l<iw water ah>ng th;it liortion of thecoasl wh lcli is in diri;<"I «'! I' llii<'t with tll ' oper>sea" a»n. H<>th elements of lh< definiti<>nmust E>c i <>i<aid< red. Tlie first. is the "line ofordinary low water," which < an rcliresent differ-ent, h< iglits <>f Iow water in < onta< t wit,h the shoredepending upon the type of tides that pr<domi-naritly exist along a coast. '1'he dif ter< nces inheight of the low water are caused hy gravitation-al forces exerted by the sun and the moon uponthe. waters of the earth, As the earth and themoon i'hange position in relat.ion to the sun andto ea< Ii other, the varying gravitational strengthof the three bodies causes changes in wat.< r heightat diff rent Io< ations on the surfa«<>f the earth.Vor example, along the <oast of the Gulf ofMexico, the tides mainly consist of one height oflow water every day, Along the Atlant,ic Coast,the tides mainly consist of two slightly different,heights of low water daily. Along t,he PacificCoast, which also includes t,he < oast of Alaska,the tides mainly consist of two greatly differentheights of low water each day.

The forces of the sun and the moon also causeother variations in water height from day to dayduring the lunar month of approximately 29,5days. Other long-term, physical phenomenaaffecting water height dictate that the low waterheights be averaged over a 19 year period todetermine the coastal boundary line. The term,"line of ordinary low water," is unworkablyvague, because it does not specify which lowwater height to use in calculating the mean lowwater line,

The other element of the definition which issubject to interpretation is "the line marking theseaward limit of inland waters."

'I'li«h I< rrn<ru«r<><r «if <r<l<»>d wat<rs requires1udgmelll Iic<'.I<!s<' tli<'y iu<' a fiincti<>n of 1!oth thephysi< iil < In<ra< I< risti< s ol' a «iast and the r>ature<>f n;it<<i<i,il i oiit r<il <iv< r wat<'r areas adjs<.ent totlie i <> isl, xii<1 rli< r< acti in of otlicr nations totliat <'<>nt nil. 'I'Ii< t>ti< si< a! characteristics of the«'!asl ii'i<'I<i< I<' Ixii li l>la<i<is Ivllig of f tll<' ni arrl landand in<I< iiiiili<»is <>f lli< rnairiland itself. islands<'ari I!<' si! ilal«' I iir varying <distances from themainl;iii<1. II' i a< li isl;i<ii»i<i< red to have itsown «i;istliii<, tii< water h< tween the marnlandanf ili< isl;in<is aii<t l>a<'k to the mainland,the v at< r 1>et we< n t lie mainland and the islands isinland wat<r, 'I'lie SuEimergwl Larids Act does notdesignat< wlii< h r«1< t<i follow.

I n<1<'ii I It I< Iris of I I'I<' rilairllarld vary ln size andshape'. '1'li< s«'Ii ua< t<ristics have a hearing uponthe iiilari<I <Iiiiitity <if Itic < ontained waters. lf thewaters nrc assis iat<d more with the land thanwitli the ~ a, th< v are inland; otherwise, they areterritorial s«,is, Both quantitative and qualitative< on sid er;i t i <ins utli of the indentation with the extent<if inland pent ratation. The qualitative aspectsinclude analysis of the nature of the controlexerted hy Ihc «iastal nat,ion over the waters ofthe indentation, and the reaction of the corn-munity of nat.irma to that exercise of control. TheSubmerged f.ands Act docs not provide anycriteria for analysis of either consideration.

The determination of inland waters is impor-tant to both the state and federal government.Beyond the seaward limits of inland waters lie thesubmerged lands of the states. Beyond the sea-ward limits of the state lands lie the federalsubmerged lands to the edge of the outer can-tinental shelf. The existence of inland waterscauses a seaward shift of state land. Since theedge of the outer continental shelf may be fixed,the area of federal land may be decreased. Sincetitle to lands submerged beneath inland waters

adjacent to coasts usually rests with the state, thestate gains the submerged lands. This win-losesituation becomes critical when the submergedlands contain valuable natural resources,

When Congress passed the Submerged LandsAct, they declined to define the term, "inlandwaters." An examination of the legislative historyindicates that. Congress did not define inlandwaters because the Departm<nts of State andJusti<'e advised against it.. Thes departments felt,that. a legislative definition would create difficult,diplomatic and legal prohlems. Congress therefore<lpcided that. t,he c<rurt.s had defiried the termadequately through a summation of many previ-ous legal decisions, and left the definit,ion to thejudiciary.

I'he Suprem< Court of the United Statesassumed the task of d< veloping i.he crit,eria forinland wa4 rs and th<. lin< of <irdinary low wateralong the <-past. 'I'he Court. noted, contrary toCongressional assumpti<ins, tliat, the judiciaryhad never actually defined inland waters as theypertained to coastal boundarie~. 'l'he summationof previous iniand water decisions was based uponlandlocked waters located further inland. TheCourt recognized the mandate from Congress todefine i,he term, "inland waters," from its analysisof legislative history. It chose as its criteria ofdefinition the applicable elements of internationallaw as they existed at the time of the UnitedStates vs, California decision, May 17, 1965.

lIL The Coastline as Defined by t,he 1958United Nations Convention on theTerritorial Sea and the Cont,iguous Zone

The Court felt that the best definitions avail-able were embodied in the United Nations' Con-vention on the Temtorial Sea and the ContiguousZone. The Convention addresses specific criteriaregarding coastlines, low-water lines, and inlandwaters which are compatible with the definitionof coastline found in The Submerged Lands Act.The Convention was acceptable international lawat the time of the Ca i fornia decision, since therequired number of 22 nations had ratified theConvention by Fall, 1964 The United States wasamong the signatories of the Convention havingratified it in 1961.

The Court applied Article 3 of the Conven-tion to define the "line of ordinary low water"which is used in The Submerged Lands Act tode5ne the coastline. The Convention indicates

that. the breadth of the territorial s< a is measuredfroin a baseline or < oastlii« l which»is the lowwater line along the c<iasi iiiiirkerl o» large-scalecharts officially re< ognized by thc < o;isial states,in this instance, the Unit< d Stat<'s. Sin< e tlie U.S.Coast and 'eodetic Survey lii<iw known as t,heNational Ocean Survey! iis<d ilic met<a Pf thelower of the two daily low wat rs ns ihe datumfor its official nautical <'harts of ihc l':icifi< Coast,the Court decided that for ih< I'a< ifi< '<iast, theline of ordinary low water mis<nl the line of themean of the lower low waters. 'I'h< int< rpretationof the vague term, "ordinary," i o signify themore specific term, "meaii,' was in < onsonancewith previous Court de<'isions. The NationalOcean Survey also uses tlie mean <>f lower lowwaters for their nautical charts:<long tlie coast ofAlaska.

Articles 4 and 10 of ihe C<invention addressthe situation of islands fringing a < oast at variousdistances from the mainland. If the i~lands areclose io the mainland and follow thc generaldirection of the coast, the ba~eline or coastlinecan encompass the seaward edge of the islands.The waters between the islands and the inainlandare considered inland waters. The drawing ofthese baselines around the seaward edge of theisland is at the discretion of the coastal nation.

Historically, the United States has refrainedfrom drawing such baselines unless the islands areextremely close to the mainland and can beconsidered almost a part of the land formation.One reason for this position is that the UnitedStates has wished to preserve the right of inno-cent passage of ships through the maximumamount of water area. Innocent passage is per-mitted in territorial but, not inland waters. Ifformer territorial or high seas heroine inlandwaters through the application of straight base-lines, however, the right of innocent passage isnot terminated. With islands away from the coastof the mainland the United States has maintainedthat the islands have their o wn coastline, lfislands are within six miles of the mainland, thewaters between the mainland and the islands aretemtorial waters. Beyond six mites, an area ofhigh seas will be created between the bands ofterritorial waters measured from the seawardcoast of the mainland and the landward coast ofthe islands.

Article 7 of the Convent,ion discusses thecriteria for differentiating mainland indentationsthat contain inland waters legal or true bays!horn those that do not. Historic bays which are

SCALE I: 2,500,000I INCH EQUALS APPROXiMATELY 40 MILES

FIGURE I: AERIAL EXTENT OF NAVAL PETROLENlRESERVE N0,4

SOURCE: U,S. GEOLOGICAL SLlRVEV AI ASKA MAP E, I954

developed by the nature of control a coastalnation exerts over a nonlegal tiay and the rea .t.ionof other nations to that <ontrol, are not inention-ed in this Convention. Con< epts of histori< haysare devel<iped in other tinit� Nationr' do u-rnents as well as in ot,her lega! s<rur< es.

Legal hayi ar< drt<.rmined quantitatively, TheNorth Atlanti< Fisheri< s '1'ritiiinal in 1910 r«om-rnended that m<ruths of hays n<>t ex e< d 10nautical tniles except. for ip < ifi< ally name thays.' At I.he tlague C<infcren< r for the Codifica-tion of international l,aw in 1<g10, t,he t.:nited.states delegat«in prop<>se l a ge<irnetri< meth >d toassiit in delermi»i»g a i< gal tiay. '1'h ir pr<>posalwas lo ins rilre a semi< ir< 1» in the bay area usingthe ltn< joining th< entran< e of the hay as the<iiametx r if th< s< rni< ir< tc. lf tile wat< r area ofthc h;iy was eith< r as larg<:ii <ir l;irger than thear<'I« if t tl<' s<'mt<'ir< l< ~ . Ih<' tray v <riil<lbe a l 'gatliay slid w<iut<i «' lilt sin iill iild watcl'i. l'hc I lagueConf 'r 'n«' «<ll<iurn<'d with<litt, taking a< lion otith<' pi'<ili<!sill.

Article 7 of tile COnv< ntion <'OntinueS theconcept of quantitat,ive determination. 'I'he 10nauti al mile < riteria for l.he width of the niouthof a liay was incre<Ls<4 to 24 nautical miles. Thisdistance tret Ween naturalentr ance pOints waSestahtished as the first < ritcrion of a legal bay. lfthis criterion were satisfied, then the semicir trule w<rtild hc applied. 'Similar to the United'States' proposal ol' 1930, the hay that containedan area rf water either equal t > or greater thanthe area of the semicircle was <onclusively con-sidered a legal hay.

'1'he Convention arti< le on legal bays alsoSpeCifies Ule method Of determining the waterarea of the bay. The perimeter of the area iscomposed of the line joining the natural entrancepoints of the bay as well as the water line alongthe sinuosit,ies of the indentation. The sinuositiesof the indentation include estuaries, coves, small-er bays, and channels that open into the mainindentation under consideration. lt is importantto note that the perimeter of the water area mustbe the line of mean low water.

Figure 2 is a schematic of a hypothetical bayalong the Arctic Coast of Alaska. The two tests ofa legal bay will be demonstrated in their propersequence. ln the first test, the length of the line

jnining the' natural <'I'i!r;ill<'<' tiolnt! of tli<' ll;iytheir mean loaier low w;itei m <rk is mcaiure i andfound to h 23 nail t I<'at <lilies. ~in<'< this line is 24nauti<';il nlil< s or l 'is in I< ilgtli t.tl firit teit ispasse l, and the hay is tr »sitrli a l gal Iiay.

ill the s<' 'Oil i t <'st, t t1<' ieiiii<'lr 'Ie nileapplied. The shaded '<rea Ii iundcd Iiy thc,iiliiiousline oi' mean l<rteer l iw wiit<r on t.hc i»;ii»land iast reprei< nt,.i th< wal< r ar a of lti< l>ay.semicircle is drawn iliing the liric wlii<'ll Joins thenatural entrance pointi <if ttie liay;ii a diameter.lt is apparrnt that the water <rea of the tray islarger thati the area <rf th< semi ir te. '1'liis ice<'indtest < onclusively provrs t.liat tlie hvp ithet.ical bayis a legal bay. Thc wat< rs wit.hin the bay landwardof t,he line jOining tile ilatural entrance pointS ofthe tray are therefore inland waters belonging tothe !itate of Alaska. This same linr also trecomes asi gment, of Alaska's coasthne.

Another situation exiiti where islands lieacross the moutli of a bay. '1'he water areasbetween the islands fortn many natural entrancesto the bay. Article 7 provides that the width of abay in this case will be the sum of the widths ofthe water entrances. 1 f the sum of these individualwidths is 24 miles or less, the bay is possibly alegal hay. The diameter of the inscribed semicircleis also the sum of these individual widths, and ifthe area of the semicircle is less than t,he waterarea of the bay, t,he bay is conclusively a legalbay.

The islands do not have to lie in a straight linebetween the natural entrance points of the bayitself. They may lie either landward or seaward ofthat line at a distance apparently subject to theprovisions of Article 4. ln computing the waterarea of the bay it is not clear how to treat theland area of the islands. lf the islands are locatedwithin the indentation, their land area would betreated as water according to Article 7. However,the islands involved in detertnining the closinglines of a bay are normally either wholly or partlyseaward of the indentation. Since in that case, thecoastline would follow the seaward edge of theislands, it is consistent with Article 7 to considerthe land area of those islands to be water area mcomputing the total water area of the bay.

Figure 3 is a schematic of a hypothetical bayalong the Arct'ic Coast of Alaska with islandslying across its mouth. The line across the water

a. Aaron L. ShatnWits, ShOre <tnd Se<r B r«r<d<rrier, Vot. 1 Waabtngton, D. C.: U. S, GoVernment PrintingOffice, 1962h p. 32,

ti. Ibid., pp. 34-36.

AREA OI SEVICIRCLF

LEGEND

FIGuffE 2.H~POT~ETICAL BA~

LF &END

AREA OF COfffBE fll CIRCLE

COASTLINE OF ALASKA~ WATER AREA OF BAY

LIKE QF MEAN LOWER LOW WATER

OIAffff TER OF SEMICIRCLE,BAY CLOSING LINE

COASTLINE OF AI. VASKALINE OF ME AN LOWER LOW WATERWATER AREA OF BAY

Smile- Therefor, on the folio~ fusee one line marked bigheetwater erill alao fnd jcate tbe line of mean lower low watee and the hne of mean in' h ~~

areas between the natural entrance points of thebay and adjacent islands are measured and foundto be 24 nautical miles. This measurementsatisfies the first test for a legal bay. A semi< irclewith a diameter of this measured distance isconstructed, and its area is compared with thewater area of the bay. Since the area of thesemicircle is less than the water area of the bay,the bay is conclusively a !egal hay. The waterswit,hin this bay landward of the closing line wouldbe inland waters belonging to the State of Alaska.The closing line also becomes a segm en t ofAlaska's coastline,

An issue was raised in United States vs,Louisiana about natural entrance points of a bay.The United States felt that the natura! entrancepoints had to be a part, of the mainland. Louisianafelt that islands off the mainland could also formnatural entrance points. The Convention does notresolve this rnatter, 'I'he Supreme Court decidedthat islands could form natural entrance points ifthey are so related to the mainland that theycould be considered a part of the coastline underArticle 4,

IV. Applications of the 1953 Act and the 1958Convention in Determining the Coastline ofAlaska along Naval Petroleum Reserve No. 4and Its Comparison with the New ReserveBoundaries

The Submerged Lands Act of 1953 and itsinterpretation by the U.S. Supreme Court using

1958 United Nations' Convention on theTerritorial Seas and the Contiguous Zone appliesto the determination of the coastline of Alaska.These two legal instruments will be used toanalyze the following areas along the Alaska coastwhere Naval Petroleum Reserve No. 4 is situated:1! the western portion of Harrison Bay, 2! SmithBay, 3! Peard Bay, and 4! Kasegaluk Lagoon.

Harrison Bay is much too wide at its mouthto be considered a legal bay. If islands off themainland at the eastern edge of its mouth areconsidered to be natural entr'ance points, thewidt,h of the mouth is at least 56 miles. In thisinstan< e, the Convention allows baselines, notexceeding 24 miles in length, to be drawn withinthe hay to define inland waters. The U.S,Supreme Court has interpreted this rule as proper,provided the smaller indentations have obviousrraturrrl entrance points of their orvrr. HarrisonBay has two hach indentations along its westernborder, which adjoins the reserve,

Figure 4 depicts t1rese two indentations. Thelower indentation has one natural entrance pointon the Arctic Coast near the mouth of theCo]viIle River, 'I'his ~oint is marked by thenumber 1, The other natural entrance point,marked by the number 2, is the eastern edge ofthe easternmost small unnamed island lying offAtigaru Point. The distance across the mouth ofthe indentation between these two points is, attheir mean lower low water mark, approximately11.65 miles. This distance satisfies the first test ofa legal bay.

The shaded water area of the bay within theperimeter of mean lower low water was measuredby a planimeter and f~und to be approximately66.91 square nauticaI miles. The area of thesemicircle with a diameter of 11.65 nautical milesis approximately 53 80 square nautical miles.Since the water area ~f the bay is larger than thearea of the semicircle. the lower indentation isconclusively a legal ba~.

The upper indentation also has the smallisland off Atigaru Point marked by the number 2as one of its natural wrrtrance points- The othernatural entrance point is at Cape Halkett which rsmarked by the nurrrber 3. The distance across themouth of this inderrtation between these twopoints at their mean lower low water mark isapproximately 18 94 nauticaI miles. This distancesatisfies the Grst test cr j' > IegaI bay

The water area of the bay within the peri-meter of mean lower low water was measured bya planimeter and found to be approximately140.88 square nautical miles. The area of thesemicircle with a diameter of 18.94 nautical milesis approximat.ely 140.87 square nautical miles.The water area of the bay is almost identical tothe area of the semicircle; but, since it is larger,the bay is a legal bay. This bay has many smallerbodies of water opening inl,o it, which add morewater area. The Kogru River, which is actuaily anestuary, contributes significantly to the totalwater area,

The closing line for each ot these two bays isa straight line, which connects the two respectivenatural entrance point.s at. the mean louer Iorrjutter rrrrrrk, Each closing line forms a portion ofthe coastline of the State of Alaska.

The Navy claims t,hese closing lines as theseaward boundary of the Reserve,

Executive Order No, 3797-A of 1923 doesnot specify the coastal boundary of the Reservewhere there are no barrier reefs off the coast ofthe mainland. It does specify that "where thebarrier reef is over' three miles offshore, theboundary shall be the highest highwater mark ofthe coast of the mainhnd." Therefore, it wouldappear consistent with this description that thecoastal boundary of the Reserve, where barrierreefs do not exist, would be the hr'ghest highuraterrtsrrtk of the coast of the mainland. The Reserveboundary would, then, foIIow the smuous line oithe mainland, rather than the point-to-point~ boundary of the State.

'Ihe tidal mark of highest high water is subjectto Interpretation. It is not dear under whatconditions, nor over what period of time, thehighest, high water mark is to be measured.

Measured under storm conditions, the highestmark would result in an erratr< method of bound-ary measurement, Even measurement under calmconditions would vary over differerit periods oftime.

Since the line of mean high water or tide canbe established with a degree of accuracy over aperiod of 19 years, the Navy substituted "meanhighwatcr" t'or "highest L.ighwater' in 1972 tofacilitate boundary measurement. of the Reserve.Although the Navy made this substit.ut.ion ofterms unilaterally, it.s authority to do so may beopen to question.

A rase rould be made for shifting t.he bound-ary landward to the line of liigher highwater inkeeping with the line of lower low water whichconstrtutes the coasthne for Alaska, Even thoughThe Submerged Lands Ar.t specifies that. theshoreward boundary of the tidelands is rhe line ofmean high water, it. also specifies that the coast-line is the line of ordinary low water. Since theSupreme Court interpreted the adjective, "low,"to mean "lower low" for a particular tide, thecourt could also interpret the adjective, "high,"to mean "higher high" for the same tide.

Even if the Navy's new boundary line of meanhigh water is accepted, it is difficult to under-stand how the Navy can claim the lands beneaththe inland waters of the two indentations inHarrison Bay. The Convention on the TerritorialSea and the Contiguous Zone, as applied to theArctic Coast of Alaska, indicates that legal baysare determined by mean lower low water and notby mean high wat,er. Thus, the Navy cannot usemean high water to determine legal bays. If a legalbay is beyond the jurisdiction of its boundaryline, then the submerged lands beneath the inlandwaters within that bay are also beyond its juris-diction.

10

.,-I W~S'Ip4~M' W'ftPj,�~

11

The significance of using mean high waterrather than mean lower low water to determinelegal bays may be demonstrsttd with an example.If the closing line of a hay, measured between itsnatural entrance points at their mean lower lowwater mark, was exactly 24 miles in length, thebay would be a legal bay if it also passed thesemicircle test. The same bay could not be a legalbay if the closing line was measured between itsnatural entrance points ai, the mean high watermark. The mark or the line of mean high water islandward of the mark or line of mean lower Iowwater. Thus, the latter distance between theentrance points would be greater than 24 milesand the bay could not he a legal bay. If two rulesconflict, the accepted rult should prevail.

Another reason why the Navy cannot claimjurisdiction over the submerged lands in the twoindentations deals with the ownership of tide-lands. The tidelands along the Arctic Coast ofAlaska are the lands between the line of meanlower low water and the line of mean high water.The Submerged Lands Act emphasizes that thesetidelands belong to thecoastal state, in thisinstance, Alaska, In his Executive Order of 1923,president Harding ended the boundary of theReserve at the highest high water mark, whichwas la ter interpreted to mean t he mean highwater mark, Since the boundary of the Reserveends where the tidelands begin, the State ofA]aaka owns the tidelands. Logically, the statealso owns the submerged lands seaward of thetidelands beneath the inland waters. If the stateowns these lands, then the Navy cannot.

In view of the previous discussion, the coastalboundaries of Alaska do not coincide with thec~ bounden of the R~e with resp ttothese two indentations in Harrison

coastline of Alaska should follow the two bayclosure lines which join the marks of mean lowerlow water as provided by the laws of the UnitedStates. The boundary of the Reserve shouldfollow the sinuosities of the two indentationsalong the line of mean high water as provided bythe Navy's own interpretation of Fxecutive OrderNo. 3797-A.

The next area to be examined along thecoastal boundary of the Reserve is Smith Hay, asshown in Figure 6. Smith Bay has an easternnatural entrance point at Drew Point, which ismarked with a number 1, The western natural

entrance point is Cape Simpson, which is markedwith a number 2. The distance across the mouthof this bay between these two pomts at theirmean lower Iow water mark is approximately14.09 nautical miles. This distance satisfies thefirst t,est of a lead bay.

The shaded water area of the bay can becompared visually with the area of the semicircledraw~ with a diameter of 14.09 nautical miles.The water area of the bay is obviously larger thanthe water area of the semicircle, therefore the bayis a legal bay.

The same arguments about measuring legalbays with mean high water versus mean lower lowwater, and the ownership of tidelands and theiradjacent submerged lands beneath inland waters,apply to Smith Bay. The lands seaward of meanhigh water and landward of the bay closing linebelong to the State of Alaska and not to theNavy. Therefore, the coastal boundary of theReserve follows the sinuosities of Smith Bayalong the mean high water mark, whereas thecoastal boundary of Alaska across Smith Baycoincides with the bay closing line joming themarks of mean lower low water,

12

LEGEND

LINE OF HIGHEST HIGHWATER 6ORIGINAL BOUNDARY OF NPR 4

COASTLINE OF ALASKA, MODIFIEDBOUNDARY OF NPR 4

~ WATER AREA OF BAY

SCALE I: 280,happI INCH EQUALS APPROXIMATELY 4 MIiES

FIGURE 5.' COASTAL BOIJNDARY OF SMITH aAY

SOURCE: U.S, GEOLOGICAL SUPyEy, TESHEKPUK, ALA

EGEND

INE OF HIGHEST HIGHWATER 8ORIGINAL BOUNDARY OF NPR 4

COASTLINE OF ALASKA,MOO!FIEDBOUNDARY OF NPR 4

~ WATER AREA OF EIAY

SCAL E I 250,000I INCH EOUALS APPROXIMATELY 4 MILES

~QJft+~~4gJ4+gQIJILDARY F 4RD 84Y

NORTH SOURCE: U.S. GEOLOGICAL SURVEY, MEAOE RIVER, ALASKA, l955 SIWAII4WRIGHT, ALASKA, 1955

The third area to be examined is Peard Bay,shown in Figure 6, This bay is different from theprevious t.wo since it has islands lying across itsmouth. The summation of the widths of thewater entrances between the Seahorse Islands isapproximately 6.2 nautical miles, This distancesatisfies the first test of a legal bay,

The shaded water area of the bay can becompared visually with the area of the semicircledrawn with a diameter of 6.2 nautical miles.

Clearly, the area of the bay is larger than that ofthe semicircle, and the bay is conc]usiveiy a legalbay.

The State of A!asks owns the iand within thebay seaward of the line of Incan high water Theboundary of the Reserve is the line of mean highwater around the sinuosities of the bay. Thecoastal boundary of the state coincides with thebay closing line which includes the seaward edgeoi the Seahorse Islands.

LEG E ND

� � - COASTLINE OF AL ASK A A NDPRESENT BOUNDARY OF NPR 4

"""' "' INTERIOR BOUNDARY OF NPR 4

~~~ SUBMERGED LANDS POSSIBLYBELONGING TO ALASKA

~~ WATER AREA OF LAGOON

NO TH

SCALE I 250,000I INCH EQUALS APPROXIMATELY 4 MILES

FIGURE 7:COASTAL BOUNDARY OF KASEGALUK LAGOON

16

SOURCE ' US GEOLOGlcAL SURvE r, wAIHwRIGHT, ALASKA,1955

The final area to be examined is KasegalukLagoon, shown in Figure 7 The coastline ofAlaska unquestionably follows the line of meanlower low water along the ocean side of thebarrier reef seaward of the lagoon.

The Navy also claims this line as the boundaryof its Reserve. A careful examination of Execu-tive Order No. 3797-A indicates this claim maynot be entirely valid. The Order indicates thatwhere the barrier reef is not over three miles fromshore, the boundary shall be the highest highwater mark on the outer shore of the reef, andadds that where the barrier reef is over three milesoffshore, the boundary shall be the highest highwater mark of the coast of the rrrainlrrnd.

In the case of Kasegaluk Lagoon, the distancebetween the mainland and the landward edge of

POGSIBL E BOUNDARY OF NPR 4

the barrier reef varies from less than three nauti-cal miles at either end to more than three nauticalmiles toward the center. Therefore, the Reserveboundary should follow the highest high waterline, or the mean high water line, along the coastof the mainland between the two points wherethe landward edge of the barrier reef is over threenautical miles from the mainland. The Reserveboundary lines should then connect the seawardedge of the island to the mainland at their meanhigh water marks as shown on the map. Thesubmerged lands under the lagoon within thehatchered area would belong to the State ofAlaska rather than the Navy, This interpretationof the Executive Order draws a fine line, but ifvaluable natural resources were discovered inKasegaluk Lagoon, the distinction may becomeimportant.

V. Summary

Your sele<'ted af<'l<s <>f the Ar< ti< 'oast, ofAlaska adjs« nt tastal i>«un<isries ofNaval Petrol< urn I es< rvi N<>. I hav enexamine, 'I'he Navy li;is iiit< rprete<l thi H< serveboundary line of' liigh< st liigli wat< r <>f Kxe< <itiveOrder No. 3797-A t<> iiidi< at< th< line of meanhigh water ol the Suliin«rg<d I.ands Ai t, As aresult of this interpret.iti<>n, th< Navy has movedits boundary seaward a»d iiicr<ased its territory.This unilat,eral decision to move the boundarymay be beyond th< adniinistrative authority ofthe Secretary of the Navy.

The Submerged Lands Act of 1953 and theSupreme Court's appli<ation of Lhe 1958 UniLedNations' Convention on the Territorial Sea andthe Contiguous Zone have been used to evaluatethe legality of four bays in three general areas«long the coast,. AH fout hays were found to belegal bays and their waters to be inland waters. Itwas demonstrated that title to the submergedlands within those bays seaward of the allegedReserve boundary of mean high water may belongto the State of Alaska and not to the Navy.

As a corollary to this demonstration, it wasshown that the coastal boundary of the State ofAlaska and the Reserve may not coincide at thesebay areas. The coastal boundary of the State of

Alaska follows the bay < losing lines hetwe< n th<naLural entrance points of the liays at their meanlower Iow water mark. Assuming that th«oast;<Itioundary of the Reserve is the line of mean highwater, the Reserve's boundaries should foll<>w thesinuosities of the hays along the line ot' mean highwater.

Finally, a lagoon area was examined using atechnical interpretation of Executive Order3797-A. In this case the Reserve boundary shouldfollow t,he rnainla.nd in places where the barrierreef is over three nautical miles from the rnain-land.

It, is important to establish precise boundariesbetween areas that potentially have valuablenatural resources. The Depart,ment of the Navyunilaterally changed its boundaries almost half acentury after its Reserve was established, when itbecame known that beneath some of the bayareas were portions of vast oil reservoirs. TheState of Alaska should challenge this action andhave the courts decide ownership of these impor-tant submerged lands. These lands may belong tothe state and its citizens and should not beforfeited. The Navy action took place on May 19,1972. The longer the state remains silent, theharder it may be to reverse the action.

APPENDIX I

EXKCUTI VE ORB F. R

Wl IEREAS there are large seepages of petroleum along the Arctic .'oast of Alaska andconditions favorable to the occurrence of valuable petroleum fk lds on the Arctu' 'oast and.

WHEREAS the present laws designed to promote di velopment seem imperfectlyapplicable in the region because of its distance, dit ficul ties, and large expense ofdevelopment and,

Wt EREAS thc future supply of oil for the Navy is at al! tinies a matter of nationalconcern,

NOW, THEREFORE, I, 'WARREN G. HARDING, Presa ent of the Ignited States ofAmerica, by virtue of the power in me vested hy the laws of the 1.'nit~~ States, do hereby setapart as a Naval Petroleum Reserve all of the public lands within the following descrihedarea not now covered by valid entry, lease or applica ,ion,

Commencing at the most northwestern extremity ot' the point of land shown on themaps of Alaska as Icy Cape, approximately lat, 70' 21', long. I ll* -I i'; thence ex' nding ina true south course to the crest of the range of mountains forming the watershed betweenthe Yoatak River and its northern tributaries and the streams flowing into the Arctic 0< ean;thence eastward along the crest, of this range of mountains to a ~ak at the head of thenorthernmost of the two eastern forks of Midas Creek Pl. I, ',S. '.Y., Bull. 536!, atapproximately !at. 67' 50', long. 156 08', thence in a true north course to a point at thehighest high water on the western or right bank of the Co ville River; thence following saidhighest highwater mark downstream along said Colville River and the western bank of themost western slough at its mouth to the highest highwater mark on the Arctic coast. Fromhere, following the highest highwater mark westward to the point of beginning.

The coast line to be followed shall be that of the ocean side of the sandspits and islandsforming the barrier reefs and extending across small lagoons from point to point, where suchbarrier reefs are not over three miles off shore, except in the case of Plover Islands, fromPoint, Tangent to Point Barrow Pl, 3, U,S.G.S., P,P. 109!, long, approximately 154 50',where it shaII be the highest highwater mark on the outer shore of the islands forming thegroups and extending between the most adjacent points of these islands and the sandspits ateither end. In cases where the barrier reef is over three miles off shore the boundary shall bethe highest highwater mark of the coast of the mainland.

Said lands to be so reserved for six years for classification, examination, andpreparation of plans for development and until otherwise ordered by the Congress or thePresident.

The reservation hereby established shall be for oil and gas only and shall not interferewith the use of the lands or waters within the area indicated for any legal purpose notinconsistent therewith

WARREN G. HARDING

The White House

February 27, 1923

APPENDIX II

DEPARTMENT OF DEFENSE

Department of the Navy

NAVAL PETROLEUM AND OIL SHALERESERVES

Nof,ice of Boundary Description ofNaval Petroleum Reserve No. 4

FEDERAL REGISTER, VOI 37, NO. 98FRIDAY, MAY 19, 1972

18

The Secretary of the Navy by Acts of Congresscodified as 10 U.S,C, sections 7421-38 is charged directlywith responsibility for administering the Naval Petroleumsnd Oil Sha!e Reserves. Notice i» hereby given that, inexecution of this authority snd responsibility, the bound-aries of the Naval Petroleum Reserve in Alaska known asNaval Petroleum Reserve No, 4 ss designated originally byExecutive Order No. 3797-A, February 27, 1923, havebeen corrected snd redefined to reflect more precisecadastral and geodesic surveys of the area and the specific~ ppbcation of the mandate of the Fxecutive order tocharting of the boundary along the Arctic Ocean,

'Ilute following described poini.s, courses, snd descrip-tions kttxtte the boundaries of Naval Petroleum ReserveNo. 4 as created by Executive Order No. 3797-A ofP'ebruary 27, 1923, and Acts ol' Congress related thereto.

Commencing at the northwestern extremity of thepoint of land shown on the maps of Alaska as icy Cape,sp pro aims tet latitude 70 19'62" N., longitude161 52'4l" W.; thence extending in a true south courseto the crest of the range of mountains fmming thewatershed between the Nostak River snd its northerntributaries and the streams flowing into the Arctic Ocean,approximate kttitude 68" 31'07" N., longitude 16162'41" W.; thence eastward along the crest of this ntngeof mountains to a peak st the head of the northernmostof the two eastern forks of Midas Creek Pl 1. USOS BullBSB$2 at approximate latitude 67 67'54" N., longitude166 36'61" W; thence in a true north course to a pointat the highest h~water mark on the right banks of the

t. The latnude and loagNude cootdinstes used ln thts deserlptioattlffnr sgehtly hose those bt tbe original order bees~ uf tnorepsactse sad accurate surveys of the area by tbe U,S, GoolottfcalSurvey lVSGS! end the Coast snd Geodetic Survey.Tha posit d~ by these eoontlnates at@I tdentt6sd on theOtfioSSS tnsp has bosn identified by actual onelte inspectfnnfrotn the sh aad by entreated USGS dsts ss the penh locatedoa the paste of the erectly reduced tnep la the referencedauaethx

Colville River, approximate latitude 68 57'55" N� longi-tude 156o86'51" W� thence following l,he highest high-water mark downstream along the ri ght bank of theColviRe River to a point on the said right. bank atapproximate latitude 7 0" 1 3'52" N., longitude150 49'22" W.; thence crossing the Colville River alongthe latitude 70o13'52" N. to a point at approximatelatitude 70 13'62" N., longitude 150 60'l l" W., on theleft bank of the most. western slough of the Colville River,now identified as the Nechclik Cha nnele, tht nce along theleft bank of said slough to the means highwater mark unthe Arctic Coast to s point approximate latitude 70o26'52" N, ~ longitude 161o11'00" W,; thence in a north-westly direction in a straight line bearing approximatelyN. 53 20' W. for approximately 11,65 nautical miles tothe eastern side at meara highwater of the easternmostisland east of Atigaru Point at approximate latitude70o32'46" N� longil.ude 1 6lo39'00" W,;

Thence in a northwesterly direction in a straight linebearing approxilnate!y N. 34 50' W. for approximately18,94 nautical fniles to l.he mean highwater mark on thecoast at or near Cape lfalkett at approximate latitude70 48'12" N., longitude 152 11'00" W.; thence aiong themean highwater mark of the coast to a point at approxi-fnate latitude 70 53'05" N., longitude 152 46'30" W.;thence in a arcuate, point-to-point, continuous line con-necting and induding the ocean sides at the mean high.water mark of the outer islands opposite Pogik Bay andhtcluding Pogik Point to s poini, at the mean highwatermark on the coast at approximate latitude 70 54' l6" N-,

2, The descrlptloa of the Cotviae River boundary tnOrder a797-A as the ',unstern or rlsht bank" presents eoonfbet la testna. As the haahs of a ttvsr ere described ss' right or bat ftoto the viewpoint o f ndovntettnatn, the right" hank of the river, which notes tn ~general direction hntn south to nosth, cannot he the treaterhash. Tats etrcr wae reonentsed sad eortectsd ertnnecudy by Sunaateral Order of the Secretasy of the fnterior, public fnndorder teal, Aps. 1e, 1ase. pubthhed h 22 Fdl. 2827. pubae

19

longitude 152 53'51" W.; thence along the mean high-water mark on the coast to Drevr Point at approximatelatitude 70 62'30" N� longitude 153 56'00" W�. thencein a northwesterly direction in a straight line bearingapproximately N. 61 15' W. for approximately 14.09nautical miles to the mean highwater mark of the coast ator near Gipe Simgson at approximate latitude 70 59'26"N., longitude 154 34'00" W.; thence continuing along themean highwater mark of the coast and cont'muing in apoint-to-point line connecting and including the oceansides at the mean highwater mark of the islands off theestuary of the Sinclair River, McKay Inlet, Fatigue Bay,and Point Tangent to the western tip of Kulgurak Islandat approximate latitude 70 09'32" N., longitude 15505'53" W.; thence in the same manner in a line along themean highwater mark of the out«r shore of the group ofislands between Point Tangent and Point Barrow, knownas the Plover Islands, to the northernmost point of PointBarrow at approximate latitude 71 23'29" W.; longitude166o28 30" W

Thence in a southwesterly direction along the meanhighwater mark on the coast and continuing along theocean side of the point, sandspits, and reefs endosing theeastern side of Peard Bay to a point at approximate

I and Order 1621 substituted the description of "leA," bank.This ordez was referenced and reaffirmed in Public Land Order2215, Dee. 6, 1960, 25 F.R, 12699. Both Public Land Order1621 and Public Land Order 2215 Invoked Executive Order10355 of May 26, 1952, ae ihe basis for their pzoznulgation.No prior approval oz concuzzence of the Secretary of the Navyas required by Executive Order 10365 wae obtained ae to theeffect of cuber Public Land Order 1621 oz Pubbc Land Order2215 on Naval Petroleum Reserve No. 4 NPR-4!, "lend underthe adminjsustive jurisdiction" of the Secre azy of the Navy,10 U.S.C. sees. 7421-22, While Public Land Order 1621 furtherconfuses and coznplicaies the issue, it does not, thezefoze,authoritatively resolve the conflict in the terms. Exchange ofcorrespondence between the Director of the Naval Petroleumand OB Shale Reserves and ihe Director of the Bureau af LandManagement, Depazlmeni of ibe Interior, discloree that theSoBcitoz of the Department of the Interior hae concluded thatthe Public Land Order 1621 interpretation of the Coh lie Riverboundary ae the u!eft" zathez than the "right" bank ie notsupportable as e valid legal resolution of the conflict inExecutive Order 3797-A. Memos, Solicitor of the Departmentof the Interior, dated Dec. 2, 1969, and afar. 3, 1970.

For the fouowing reasons the corrected deecziption ie"right" bank and this reference ie now promulgated ae thecorrect delineation of the boundary. Particularly in the case ofa meandering river, such ae the Co!ville, use of compass-pointdirections in describing the rh ez'e banks Ie unreliable and notzecognjxed ae legally definitive. The survey leading to ihelocation of NPR-4 in Executive Order 3797-A was presumablyconducted in compliance with the Manual of Instructions forthe Suzvey of Public Lands of the United States, 1930, therelevant chapters of which were promulgated June 16, 1919,and in effect at that time. The instructions in ibis Manualrequire its uae by every surveyor engaged in tbe execution ofpublic-land euZVeye. The Manual Zuautree "left-right" terminol-ogy in the description of river banks and etaiee:

"Proceeding downstream, the bank on the left hand istermed the left bank and that on the right the right bank.These terms will universally be uaed to distinguish the twobanks of a river oz stream."

Recognizing the term "right bank,u therefore, as control-lire as the officiaBy prescribed term, the addition of the word"western" is surplusage and, being inconei<ent, ie io bedisregmd ed.

As a practical consideration it ie more probable that theintent of Executive Order 3797-A in locating NPR-4 was iocontinue the bod of ihe Colvtlle River within ihe reserve whereit bad ite origin and for the boundazy to cross ibe river ai ihebeginning of the aloughe ai its mouth to exclude those channeh

latitude 70060'28" N., longitude 158o31'54" W.; thencein a northwesterly direction in a straight line bearingapproximately N, 60 50' W. to a goint on the SeahorseIslands at approximate latitude 70 52'04" N., longitude168 40'42" W.; thence in a continuous line connectingand including the ocean side at the mean highwater markof the Seahorse Ish.nds to a point at the western end ofthe Seahorse Islands at approximate latitude 70 54'43"N., longitude 168 44'50" W.; thence in a straight linebearing approxinlately S, 67 40' W. to Point Franklin atapproxinlate latitude 70 54'24" N., longitude 16847'16" W.; thence in a continuous hne along the oceanside at the mean highwater mark of the reefs and islandsenclosing Wainwright Inlet, Kasegaluk Lagoon, and otherlesser lagoons, inlets, and estuaries to the point of begin-ning,<

MERLIN H. STARING,Rear Admiral, JAGC, U. 8. Navy,Judge Advocate General of theNavy.

May 6, 1972,[FR Doc.72 � 7096 Filed 5-18-72;8:45 am]

through which the river flows into the ocean, rather than tojump the boundary aezoee the river at an arbitrary pointupstream.

4. The point described as "the weetezn bank of the most westernslough" is actuanv ihe southern bank at this point since thechannel meanders from ite origin in a westerly dizecuon foz 3to 4 mHes befoze turning to a norihezly course to the Arctic0 cean.

5 uMean highwater mark" ie substituted for ubighest highwetermark" with respect io ihe ocean boundary to reflect tbelegislative determination of the definitions of "coast line" inihe Submerged Lands Act Public Law 83-31, 67 Stat. 29! asInferpzeted by the United States Supreme Court in UnitedStates v. California, 381 U,S. 139 �965!, and The LouisianaBoundary case, 394 VA. 11 �969!, and made applicable byihe Alaska Statehood Act Public Law 85-508, 72 Stat. 339!which retained tit!e to the United States in NPR-4 butotherwise granted to the State of Alaska title to submergedlande. The difference along the Arctic coast between "highesthighwatez" and "mean highwaier" is slight since the totalvertical tidal difference ie recorded as no znore than 6 inches. Itie e fair inference of the intent of Congress in reserving title toNPR-4 in the United States at the time title to adjacentsubmerged lands wae granted to the State that no hiatus or "noman's buul" wae intended but that the boundary betweenNPR-4 end State bmde described by reference to mean high-watez should control. In aB other respects ihe ocean boundaryis located as in applk.ation of the general description inExecutive Ozdez 3797-A:

"From here, following the highest ldghwatez mazlr. west-ward to the poini of beginning.

"The coastline to be followed shall be that of the oceanside of the sendspits and islands fozming the bazziez reefs andextending across small lagoons from point to point, where suchbazz cz reefs are not over 3 miles offshore, except in the case ofPlovez Islands, from Point Tangent to Point Barrow PL 3,USGS, PJ'. 109!, longiiude approximately 154o50', where itshall be ihe highest higbwatez znazk on the outer shore of tbeislands fozming the groups and extending between the mostadjacent poinis of these islands and the sandepiie at either end.In cases where the barrier reef is over 3 miles offshore iheboundary shall be tbe highest bighwatez mazk of the coast ofthe mainland "

6. The boundary ae herein defined ie Blue rated on a map entitled,"Boundaries of Petroleum Reserve No. 4, Alaska April1972!," on file and available for public inspection in the officeof the Dh actor, Naval Petroleum and Oil Shale Reserves, Room1024, Crystal Plaza No. 6, Arlington, VA, Post Office Washing-ton, D. C. 20360.

Ct RGU KA7i fs 6 COP V 588 Ml 2i1! OCpOSitQI ',- ~5KU-7-74 ...

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