STATE OF UTAH, BY AND THROUGH ITS DIVISION OF STATE LANDS,
PETITIONER V. UNITED STATES OF AMERICA, ET AL.

   No. 85-1772

   In the Supreme Court of the United States

   October Term, 1986

   On Writ of Certiorari to the United States Court of Appeals for the
Tenth Circuit

   Brief for the Respondents

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes involved
   Question presented
   Statement
   Summary of argument
   Argument:
      I. The pre-statehood reservation by the United
         States of unappropriated public lands underlying
         a navigable body of water for a particular federal
         purpose prevents ownership of those lands from
         passing to a new state under the equal footing
         doctrine
     II. The bed of Utah Lake did not pass to the
         State under the equal footing doctrine because
         Congress, in the Sundry Appropriations Acts of
         1888 and 1890, reserved the bed "as the property
         of the United States" for use as a reservoir site
         A. The administrative selection of Utah Lake
            as a reservoir site specifically included the
            bed of the Lake
         B. By virtue of its selection by the Geological
            Survey as a reservoir site, the bed of Utah
            Lake was automatically reserved by the 1888
            Act
            1. The reservation under the 1888 Act occurred
               by operation of law; it was not an
               administrative withdrawal
            2. The 1888 Act plainly authorized the
               selection of the bed of Utah Lake as a
               reservoir site
               a. The statutory text
               b. Background and legislative history
               c. Contemporaneous administrative
                  construction
         C. Congress ratified the selection of the bed of
            Utah Lake as a reservoir site in 1890 and
            retained it in reserved status
         D. Congress again declined to disturb the
            reservation of Utah Lake in 1891 and 1897,
            when it amended the 1888 and 1890 Acts
         E. Petitioner's contention that the background
            of the 1888 Act supports an implied
            exclusion of the bed of Utah Lake is without
            merit
    III. The reservation of the bed of Utah Lake by
         the 1888 and 1890 Acts for use as a reservoir
         site was in furtherance of appropriate public
         purposes and therefore defeats the State's
         claim of title under the Equal Footing Doctrine.
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-27a) is reported
at 780 F.2d 1515.  The opinion of the district court (Pet. App.
28a-41a) is reported at 624 F.Supp. 622.

                             JURISDICTION

   The judgment of the court of appeals was entered on December 26,
1985 (J.A. 41).  On March 12, 1986, Justice White extended the time
within which to file a petition for a writ of certiorari to and
including April 25, 1986, and the petition was filed on April 24,
1986.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                           STATUTES INVOLVED

   The Sundry Appropriations Act of October 2, 1888, ch. 1069, 25
Stat. 505 et seq., and the Sundry Appropriations Act of August 30,
1890, ch. 837, 26 Stat. 371 et seq., are reproduced in relevant part
at App., infra, 1a-2a.

                          QUESTION PRESENTED

   Whether title to the bed of Utah Lake (a navigable body of water),
which was reserved as a reservoir site by the Sundry Appropriations
Act of 1888 and was retained in reservation status by the Sundry
Appropriations Act of 1890, subsequently passed to the State of Utah
under the equal footing doctrine upon Utah's admission to the Union in
1896.

                               STATEMENT

   This case concerns the ownership of the bed of Utah Lake, a
freshwater lake in Utah County that is drained by the Jordan River,
which flows northward and empties into the Great Salt Lake.  The
parties have stipulated that Utah Lake was navigable on January 4,
1896, the date on which Utah was admitted to the Union (J.A. 12;  Pet.
App. 8a n.4).  Under the equal footing doctrine, lands beneath
navigable waters in territories acquired by the United States
ordinarily pass to the new States that are created out of those
territories.  However, in some situations, action by the United States
with respect to the bed prior to statehood may have the effect of
defeating the new State's claim.  In this case, both courts below held
that Utah did not obtain title to the bed of Utah Lake upon its
admission to the Union in 1896 because the United States had reserved
the lands underlying the Lake as a reservoir site in 1888.  /1/

   The Sundry Appropriations Act of October 2, 1888, ch. 1069, 25
Stat. 505 et seq. (the "1888 Act") /2/ authorized the United States
Geological Survey to select "sites for reservoirs and other hydraulic
works necessary for the storage and utilization of water for
irrigation and the prevention of floods and overflows" (25 Stat. 526).
 The 1888 Act further provided that "all the lands which may hereafter
be designated or selected * * * for sites for reservoirs * * * are
from this time henceforth hereby reserved from sale as the property of
the United States, and shall not be subject after the passage of this
act, to entry, settlement, or occupation until further provided by
law" (25 Stat. 527).

   On April 6, 1889, Major John Wesley Powell, the Director of the
Geological Survey, submitted a report to the Secretary of the Interior
"(i)n conformity with the act approved October 2, 1888" (Dfdts' Mot.
for Sum. Jdgmt., Exh. A (J.A. 19)).  Major Powell stated that the
"site of Utah Lake in the Territory of Utah is hereby selected as a
reservoir site, together with all lands situate within two statute
miles of the border of said lake at high water" (ibid).  He
recommended that pending a more accurate designation, the Land Office
at Salt Lake City should be instructed to refuse further entries of
public lands within the described limits, because such entries would
tend to "obstruct the use of the lake as a natural reservoir for the
irrigation of lands below its outlet" (ibid. (J.A. 20)).  On April 11,
1889, the Commissioner of the General Land Office informed the Salt
Lake City Office of Major Powell's selection of "the site of Utah
Lake" as "a reservoir site" and instructed that Office "to refuse
further entries or filing on the lands designated, in accordance with
the Act of October 2, 1888" (id. Exh. B (J.A. 21)).  On April 13,
1889, the Secretary of the Interior informed Major Powell that he had
received the latter's notification regarding Utah Lake and that the
requested instructions regarding Utah Lake and that the requested
instructions had been issued to the Land Office (id. Exh. C (J.A.
22)).

   The selection of Utah Lake thereafter was confirmed in the official
reports of the Geological Survey, which were formally transmitted to
Congress.  The Tenth Annual Report, for the fiscal year ending June
30, 1889, stated that Utah Lake had been examined "with reference to
its capacity for a reservoir site" and that the Geological Survey had
determined "the specifications for its withdrawal as such under the
law, so far as the lands covered or overflowed by it or the lands
bordering upon it were still public lands" (4 (Pt. 2) H.R. Exec. Doc.
1 (Pt. 5) 51st Cong., 1st Sess. 88 (1890) (J.A. 25) (emphasis added)).
 The Report also listed "Utah Lake" in a table of "Reservoir Sites
Selected" (id. at 63 (J.A. 24)).  The Eleventh Annual Report, for
fiscal year 1890, stated that a "careful survey" had since been made
of Utah Lake and that the "segregation" of lands for the reservoir was
made to include "not only the bed but the lowlands up to mean high
water" (4 (Pt. 2) H.R. Exec. Doc. 1 (Pt. 5), 51st Cong., 2d Sess.
183-184 (1890) (J.A. 28-29) (emphasis added)).  Similarly, the Twelfth
Annual Report stated that there had been a "segregation of the land
around and under the lake" (4 (Pt. 2) H.R. Exec. Doc. 1 (Pt. 5), 52d
Cong., 1st Sess. 339 (1892) (Pet. App. 13a)).

   After the Geological Survey informed Congress of the selection of
the bed of Utah Lake, Congress, in the Sundry Appropriations Act of
1890, ch. 837, 26 Stat. 371 et seq. (the "1890 Act"), repealed the
1888 Act.  However, the 1890 Act contained a savings clause, which
provided "that reservoir sites heretofore located or selected shall
remain segregated and reserved from entry or settlement as provided by
(the 1888) act, until otherwise provided by law" (26 Stat. 391).  In
the years since 1890, Congress has not "otherwise provided by law" for
a disposition of the lands underlying Utah Lake.

   2. In 1976, the Department of the Interior issued oil and gas
leases for certain of the lands underlying Utah Lake (Pet. App. 2a).
Petitioner subsequently commenced this suit on May 22, 1979, in the
United States District Court for the District of Utah against the
United States, the Secretary of the Interior, and other officials of
the Interior Department (J.A. 1, 4-7).  Petitioner sought a
declaratory judgment that it, rather than the United States, had title
to the lake bed, and an injunction against interference with its
alleged ownership and management rights (J.A. 6-7;  Pet. App. 3a,
28a-29a).  /3/ The district court granted summary judgment for
respondents, holding that title to the bed of Utah Lake is in the
United States (Pet. App. 28a-41a).  The court found that "(t)he
language used in the correspondence and documents surrounding the 1889
withdrawal expressly include the bed of Utah Lake" (id. at 36a-38a).
As a result of that prior reservation, the court held that petitioner
did not acquire title to the bed under the equal footing doctrine upon
admission to the Union in 1896 (id. at 36a-40a).

   3. A unanimous panel of the court of appeals affirmed (Pet. App.
1a-27a).  The court first summarized the principles reiterated by this
Court in Montana v. United States, 450 U.S. 544 (1981), concerning
state claims to lands underlying navigable waters.  The court
recognized the general rule that lands under navigable waters pass to
the States "when they enter the Union and assume sovereignty on an
'equal footing' with the established States" (Pet. App. 6a, quoting
450 U.S. at 551).  But the court further recognized that "'Congress
may sometimes convey lands below the high-water mark of a navigable
water, "(and so defeat the title of a new State), in order to * * *
carry out * * * public purposes appropriate to the objects for which
the United States hold the Territory"'" (Pet. App. 7a, quoting 450
U.S. at 551, and Shively v. Bowlby, 152 U.S. 1, 48 (1894)).  Finally,
the court noted that the United States is presumed not to have made a
pre-statehood conveyance of such lands and that a conveyance will be
found only if the intention is "'made plain'" (id. at 7a-8a, quoting
450 U.S. at 552, and United States v. Holt State Bank, 270 U.S. 49, 55
(1926)) or "'in terms embraces the land under the waters'" (Pet. App.
8a, quoting 450 U.S. at 552, and Packer v. Bird, 137 U.S. 661, 672
(1891)).

   Although this Court in Montana discussed the foregoing principles
in the context of an alleged pre-statehood by the United States to a
third party, the court of appeals agreed with the Ninth Circuit that
"the same principles also apply to pre-statehood reservations or
withdrawals by the United States" (Pet. App. 8a, citing United States
v. City of Anchorage, 437 F.2d 1081, 1084-1085 (9th Cir. 1971), and
United States v. Alaska, 423 F.2d 764, 766-768 (9th Cir.), cert.
denied, 400 U.S. 967 (1970)).  Applying these principles, the court
held that petitioner's claim was defeated by the United States'
reservation of the bed as a reservoir site in 1888 (Pet. App. 9a-24a).

   The court of appeals first agreed with the district court that the
language of Major Powell's selection and the annual reports of the
Geological Survey "reveals that the United States intended to and did
in fact select the entire lakebed as part of the 1889 reservoir site
selection" (Pet. App. 13;  see id. at 9a-13a).  The court then
rejected petitioner's contention that even if the 1889 selection
included the lake bed, the 1888 Act did not authorize that selection
(id. at 13a-21a).  The court reasoned that:  (i) the 1888 Act
authorized the withdrawal of "all the lands" designated as reservoir
sites, not merely dry lands above the water line (id. at 14a-15a);
(ii) Congress expressly preserved existing withdrawals of reservation
sites when it passed the 1890 Act (id. at 15a-16a);  (iii) further
statutory amendments in 1891 and 1897 likewise did not modify the
reservation of the lands underlying Utah Lake (id. at 16a-17a);  and
(iv) the general statements in the legislative history relied upon by
petitioner did not overcome the plain language and contemporaneous
interpretation of the 1888 Act and failed to establish that the
purposes of the 1888 Act were inapplicable to land underlying
navigable lakes (id. at 17a-21a).

   The court of appeals also rejected petitioner's contention that
even if authorized by the 1888 Act, the reservation of the bed of Utah
Lake as a reservoir site did not defeat the State's claim because the
reservation was not in response to some "'public exigency'" (Pet. App.
21a, quoting Montana, 450 U.S. at 556).  The court noted that Congress
may dispose of lands underlying navigable waters in a territory, with
the consequence of defeating a new State's title, in order to carry
out "'public purposes appropriate to the objects for which the United
States hold the Territory'" (Pet. App. 22a, quoting Montana, 450 U.S.
at 551, and Shively, 152 U.S. at 48).  In the court's view, the
selection in this case was valid, because "the withdrawal of Utah
Lake, including its bed, was made for a public purpose motivated by a
public exigency, given Congress's stated concerns (in the 1888 Act)
that arid lands of the western states be orderly and fairly irrigated,
reclaimed, and settled" (Pet. App. 23a).

                          SUMMARY OF ARGUMENT

   I. Under the equal footing doctrine, unappropriated lands
underlying navigable waters in a territory of the United States
ordinarily pass to the new State upon its admission to the Union.
However, because Congress has complete ownership of and sovereignty
over such lands, Congress may convey them prior to statehood and
thereby defeat the new State's claim.  A pre-statehood reservation of
a lake or river bed by the United States, to be devoted to a special
federal purpose, has the same effect on the new State's claim.
Congress acts in two capacities in providing for such a reservation:
it "dispose(s) of * * * the Territory (or) other Property belonging to
the United States" in the public domain (Art. IV, Section 3, Cl. 2),
and it acquires property to be used in programs authorized pursuant to
Congress's powers under that Clause and Article I.  Because the United
States therefore effectively conveys the property to itself, such a
transaction is the same for purposes of the equal footing doctrine as
a conveyance to a third party, which concededly defeats the new
State's claim.

   The purposes underlying the equal footing doctrine do not suggest
that the United States is constitutionally foreclosed from reserving
the unappropriated beds of navigable waters as the property of the
United States.  To the contrary, such a reservation retains the
property in sovereign ownership and control.  Congress can thereby
protect the public interest in navigation, fishing and other uses of
the overlying waters and even permit the bed to pass to the State in
the future if circumstances warrant.  This special status of reserved
lands also is reflected in the Utah Enabling Act, which provides that
lands in federal reservations are not among those granted to the State
for school purposes upon its admission to the Union.  The decisions of
this Court and the courts of appeals further support the conclusion
that reserved lands do not pass to the State under the equal footing
doctrine.

   II. The bed of Utah Lake was reserved by statute for reservoir
purposes in 1888, and it therefore did not pass to Utah upon its
admission to the Union in 1896.  The Sundry Appropriations Act of 1888
authorized the Geological Survey to select reservoir sites on federal
lands and provided that those sites were "hereby henceforth reserved"
as "the property of the United States." 25 Stat. 526-527.  The record
clearly establishes, and both courts below found, that the Geological
Survey selected the bed of Utah Lake as a reservoir site in 1889,
which automatically triggered its reservation under the 1888 Act.
Moreover, the Geological Survey formally reported that selection to
Congress, which then ratified it by providing in the Sundry
Appropriation Act of 1890 that all reservoir sites that had been
selected were to remain reserved "until otherwise provided by law." 26
Stat. 691.  Congress again declined to disturb that reservation when
it amended the 1888 Act in 1891 and 1897, and it has not "otherwise
provided" for a disposition of the lands underlying Utah Lake since
that time.  Those lands therefore remain part of a federal
reservation.

   Contrary to petitioner's contention, the Geological Survey's
selection of Utah Lake was clearly authorized by statute.  The 1888
Act broadly provided for the selection of reservoir sites throughout
the "arid region" and for the reservation of "all the lands" so
selected;  there was no exception for any lands that happened to
underlie navigable waters.  Moreover, the selection of Utah Lake was
approved by Major John Wesley Powell, the Director of the Geological
Survey, who drafted the statutory language authorizing the selection
of reservoir sites and was intimately familiar with irrigation in the
arid region.  The purposes of the 1888 Act also support its
application here.  The Act's purpose of protecting against speculation
in and monopolization of lands needed for irrigation projects was
applicable, because it was anticipated that the level of the Lake
would be lowered, which would have exposed some of its bed to
settlement.  But the Act was further intended to freeze all reservoir
sites in federal ownership, in order to preserve Congress's options
for developing them in the future.  The absence of a specific mention
of the beds of navigable lakes in the legislative history does not
suggest that they were implicitly excluded from coverage.  Because the
beds were not to be granted to private parties and because the
navigability of overlying waters would have no bearing on the
suitability of a reservoir site, Congress had no occasion to consider
treating such lands differently.

   III. Contrary to petitioner's contention, this Court's decisions do
not suggest that Congress's constitutional authority to dispose of the
bed of a navigable body of water is limited to situations of "public
exigency." To the contrary, the Court repeatedly has said that
Congress may make such a disposition "whenever" necessary to further
"public purposes appropriate to the objects for which the United
States hold the territory." Shively v. Bowlby, 152 U.S. 1, 48 (1894).
The term "public exigency" is used in the cases only to describe the
circumstances in which Congress, as a matter of policy, has provided
for grants of submerged lands to private parties, and therefore only
as a guide to congressional intent.  An "appropriate public purpose"
for the reservation of federally owned lands is the same as a "public
use" that, under the Fifth Amendment, would justify the United States'
acquisition of the same property by condemnation.  The reservation of
the bed of Utah Lake as a reservoir site clearly was for a proper
"public use" and "public purpose," and indeed petitioner does not
argue otherwise.  Moreover, even a test of "public exigency" would
require only that the disposition be "necessary," which under
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819), likewise
connotes appropriate." In any event, the urgent circumstances
confronting Congress in 1888 would satisfy a more stringent standard
of "public exigency" as well.

                               ARGUMENT

 I. THE PRE-STATEHOOD RESERVATION BY THE UNITED STATES OF
UNAPPROPRIATED LANDS UNDERLYING A NAVIGABLE BODY OF WATER FOR A
PARTICULAR FEDERAL PURPOSE PREVENTS OWNERSHIP OF THOSE LANDS FROM
PASSING TO A NEW STATE UNDER THE EQUAL FOOTING DOCTRINE

   States admitted to the Union after adoption of the Constitution are
deemed to be on an "equal footing" with the original thirteen States.
The core of this principle of equality pertains to the political
participation by each State within the framework of the Federal
Constitution and to the sovereignty of each over its own internal
affairs.  Stearns v. Minnesota, 179 U.S. 223, 244-245 (1900);  Coyle
v. Smith, 221 U.S. 559 (1911);  United States v. Texas, 339 U.S. 707,
716 (1950).  In at least one context, however, the equal footing of
the States also has a proprietary aspect:  newly admitted States in
general are held to have the same rights as the original thirteen
States to the lands underlying navigable waters within their borders.
But where, as here, the United States validly appropriates certain
lands underlying navigable waters to a distinct and paramount federal
purpose while the region is still a territory, those lands are thereby
removed from the corpus of unappropriated submerged lands that pass to
the State under the equal footing doctrine upon admission to the
Union.  As the nature and origins or the equal footing doctrine make
clear, the State's claim in such a case cannot override the United
State's prior and paramount rights that were acquired in the public
interest of the Nation as a whole at a time when the United States had
ownership of and plenary control over the disposition of those
territorial lands.

   A. When the region comprising the original thirteen States was
first settled, "the title and the dominion of the tide waters and the
soil under them, in each colony, passed by the royal charter to the
grantees as 'a trust for the common use of the new community about to
be established;' and, upon the American Revolution, vested absolutely
in the people of each State for their own common use, subject only to
the rights since surrendered by the Constitution to the general
government." Shively, 152 U.S. at 49, quoting Martin v. Waddell, 41
U.S. (16 Pet.) 367, 409-411 (1842).  But the origins and rationale of
the State's ownership of the bed are not strictly proprietary;
rather, the State is often described as holding the lands in "trust,"
in order to assure the enjoyment of certain public rights and the
furthering of public purposes, such as fishing and the promotion of
navigation.  Ibid.; see generally Illinois Central R.R. v. Illinois,
146 U.S. 387, 452-458 (1892).  It is for this reason that the
ownership of lands underlying navigable waters is viewed as "an
incident of sovereignty" (Montana v. United States, 450 U.S. 544, 551
(1981)) and that "a presumption against their separation from
sovereignty must be indulged" (United States v. Oregon, 295 U.S. 1, 14
(1935)).

   When the United States acquires territory, it also acquires the
same title and dominion over lands underlying navigable waters as are
possessed by the States.  Those submerged lands thereafter "are held
by the United States for the benefit of the whole people, and, as this
court has often said, * * * (in trust for the future States'"
(Shively, 152 U.S. at 49, quoting Pollard's Lessee v. Hagan, 44 U.S.
(3 How.) 212, 222 (1845)), "to be granted to (the) States when they
enter the Union and assume sovereignty on an 'equal footing' with the
established States" (Montana, 450 U.S. at 551).

   Language in Pollard's Lessee further suggested that the United
States lacked the power to grant any land below the high water mark of
navigable waters in a territory of the United States.  But as the
Court observed more than 90 years ago with respect to those dicta, "it
is evident that this is not strictly true." Shively, 152 U.S. at 47;
see also id. at 28.  Indeed, only several years after Pollard's Lessee
was decided, the Court had stated with respect to lands underlying
navigable waters in Alabama that "(u)ndoubtedly Congress might have
granted this land to the pantentee, or confirmed his Spanish grant,
before Alabama became a State." Goodtitle v. Kibbe, 50 U.S. (9 How.)
471, 478 (1850).  See also Brewer-Elliott Oil & Gas Co. v. United
States, 260 U.S. 77, 83-85 (1922);  Choctaw Nation v. Oklahoma, 397
U.S. 620, 645-647 (1970) (White, J., dissenting).  Thus, in Shively,
after a thorough survey of the precedents since the earliest days of
the Nation, the Court concluded (152 U.S. at 48 (citations omitted;
emphasis added)):

         By the Constitution, as is now well settled, the United
      States having rightfully acquired the Territories, and being the
      only government which can impose laws upon them, have the entire
      dominion and sovereignty, national and municipal, Federal and
      state, over all the Territories, so long as they remain in a
      territorial condition.

         We cannot doubt, therefore, that Congress has the power to
      make grants of lands below the high water mark of navigable
      waters in any Territory of the United States, whenever it
      becomes necessary to do so in order to perform international
      obligations, or to effect the improvement of such lands for the
      promotion and convenience of commerce with foreign nations and
      among the several States, or to carry out other public purposes
      appropriate to the objects for which the United States hold the
      Territory.

   The Court has adhered to these principles ever since.  In Choctaw
Nation, the Court, citing Shively, found it to be "well settled that
the United States can dispose of lands underlying navigable waters
(prior to statehood,) just as it can dispose of other public lands"
(397 U.S. at 633).  Similarly, in Montana, the Court regarded it as
"established * * * that Congress may sometimes convey lands below the
high-water mark of a navigable water," and "so defeat the title of a
new State" (450 U.S. at 551).  See also Summa Corp. v. California ex
rel. Lands Comm'n, 466 U.S. 198, 206 n.4 (1984).

   As is evident, although the Court's decisions use the word "trust"
to describe the relation of the United States to the lands underlying
the navigable waters in a territory of the United States, the United
States has no constitutional obligation to retain such lands
perpetually unencumbered because of the possibility that a new State
might be created out of the territory at some time in the future.
Congress cannot be disabled during the territorial period from
performing the sovereign responsibilities of the United States
Government, pursuant to its enumerated powers conferred by Article I
as regards the role of the National Government and its distinct and
plenary "Power to dispose of and make all needful Rules and
Regulations respecting the Territory and other Property belonging to
the United States" (Art. IV, Section 3, Cl. 2).

   Accordingly, when considering the appropriate use or disposition of
lands underlying navigable waters during the territorial period,
Congress has full authority to consider the interests of and to act on
behalf of the people in the Nation as a whole, as well as the people
of the territory.  This follows from Congress's "entire dominion and
sovereignty, national and municipal, Federal and state, over all the
Territories" (Shively, 152 U.S. at 48 (emphasis added)).  In fact the
Court in Shively made clear that the United States holds the lands
underlying navigable waters in the territories not only "in trust for
the future States," but also "for the benefit of the whole people"
(152 U.S. at 49, 58 (emphasis added)).  For this reason, Congress does
not violate a "trust" obligation to a future State and its citizens
if, in the interests of the Nation as a whole, it makes an appropriate
disposition of the bed of a navigable body of water while the region
remains a territory.  Cf. Nevada v. United States, 463 U.S. 110,
127-128 (1983).

   B. Petitioner contends, however, that a State's claim to the bed of
a navigable body of water may be defeated only by a grant or other
conveyance of the land by the United States to a third party prior to
statehood.  In petitioner's view, a State's claim of title must
prevail over that of the United States under all circumstances in
which the United States retains title to the land at the time the
State is admitted to the Union -- even where, as here, Congress
explicitly withdrew the bed from the unappropriated lands prior to
statehood and reserved it as the property of the United States to be
devoted to a distinct and paramount federal purpose.  This argument
cannot be squared with the supremacy of the laws and actions of the
United States in the areas of its constitutional responsibilities.

   1. Congress has the unquestioned power to acquire property in aid
of the other powers conferred on it by the Constitution, whether the
property is situated in a State or territory.  Kohl v. United States,
91 U.S. 367 (1875);  Art. I, Section 8, Cl. 18 (Necessary and Proper
Clause).  The property of a State -- including land underlying a
navigable body of water -- may be acquired by the United States in the
same manner as that of a private person, either by purchase or by the
exercise of the power of eminent domain, with the payment of
compensation.  See Block v. North Dakota, 461 U.S. 273, 291 (1983);
see also United States v. 50 Acres of Land, 469 U.S. 24, 31 & n.15
(1984).

   However, when submerged lands are still within a territory, there
is no need for the United States to pay compensation in order to
appropriate them, because the United States already is the owner.
This is so whether the United States appropriates the land for
governmental purposes relating specifically to the territory (such as
for municipal improvements), to the broader interests of the Nation as
a whole (such as for a military, National Park, National Forest, or
Indian Reservation), or to a combination of the two (such as for an
irrigation project).  Moreover, because the United States not only
owns the property but exercises complete dominion over it, there is no
need for the United States to condemn the property in order to acquire
it.  Congress may simply provide for the submerged lands, like any
other federal lands, to be appropriated or reserved to the special
federal purpose, either directly by statute or by the authorized
actions of an Executive official.  Such a reservation or
appropriation, like a conveyance of that land to a third party, is a
"disposition" of the property within the meaning of Art. IV, Section
3, Cl. 2 of the Constitution.  See United States v. Morrison, 240 U.S.
192, 212 (1916);  United States v. Fitzgerald, 40 U.S. (15 Pet.) 407,
420-421 (1841);  Wilcox v. Jackson, 38 U.S. (13 Pet.) 498, 511-514
(1839);  /4/ 1 C. Kinney, Law of Irrigation Section 414, at 698-700
(2d ed. 1912);  Act of Feb. 28, 1891, ch. 384, 26 Stat. 796.

   Accordingly, when Congress authorizes or directs the reservation of
unappropriated lands, it exercises not only its constitutional
authority to acquire property in aid of the responsibilities of the
Federal Government, but also its "Power to dispose of * * * the
Territory or other property belonging to the United States" (Art. IV,
Section 3, Cl. 2).  In other words, the United States acts in two
roles, effectively conveying land it holds in one capacity and
acquiring it to be used in another.  Compare United States v. Dann,
470 U.S. 39, 49-50 (1985).  The United States thereby transforms its
relation to the land from that of the residual holder of the public
domain to that of the owner of the property in a more distinct and
sovereign sense, in furtherance of Congress's enumerated powers under
Article I as well as the Property Clause.

   2. Nothing in this Court's decisions discussing the equal footing
doctrine suggests that the United States is uniquely disabled from
reserving or otherwise acquiring certain unappropriated federal lands
for its special use in this manner merely because those lands happen
to lie beneath navigable waters in a territory of the United States.
To the contrary, in Pollard's Lessee itself, the Court stated that
upon its admission to the Union, a State succeeds to "the navigable
waters, and soils under them * * * , subject to the rights surrendered
by the Constitution to the United States" (44 U.S. (3 How.) at 229
(emphasis added)).  One of the rights surrendered to the United States
is that of disposing of the territory and other property of the United
States, including by appropriation or reservation.  Another is the
right of acquiring property -- even from a State after its admission
to the Union, and, a fortiori, from the unappropriated "Property
belonging to the United States" (Art. IV, Section 3, Cl. 2) prior to
statehood.  Under the Supremacy Clause (Art. VI, Cl. 2), the exercise
of those powers defeats the State's claim of title.

   In addition, under the Court's equal footing decisions, it is "well
settled that the United States can dispose of lands underlying
navigable waters just as it can dispose of other public lands."
Choctaw Nation, 397 U.S. at 633 (emphasis added).  The Court held in
Choctaw Nation that Oklahoma did not receive title upon statehood to a
segment of the bed of the Arkansas River because the United States, in
a treaty entered into prior to Oklahoma's admission to the Union, had
conveyed those lands to Indian tribes (id. at 633-634).  It is, of
course, irrelevant under the holding in Choctaw Nation whether the
United States conveys fee title in submerged lands to the tribe or
reserves the land to be held in trust for the tribe.  Thus, in
Montana, the Court cited Alaska Pacific Fisheries v. United States,
248 U.S. 78, 85, 88 (1918), for the proposition that the
"establishment of an Indian reservation can be an 'appropriate public
purpose' within the meaning of Shivley," which would defeat the new
State's claim.  450 U.S. at 556.  Significantly, in Alaska Pacific
Fisheries, not only did the United States retain legal title to the
bed of the navigable waters that was included in the reservation;
there was no permanent conveyance to the Indians of any compensable
property interest in those lands (248 U.S. at 87-88).  Rather, the
Court described the arrangement in terms that apply equally here:
"The reservation was not in the nature of a private grant, but simply
a setting apart, 'until otherwise provided by law,' of designated
public property for a recognized public purpose" (id. at 88).

   Similarly, the Court observed in Holt State Bank that there was
"nothing in (the treaty) which even approaches a grant of rights in
lands underlying navigable waters;  nor anything evincing a purpose to
depart from the established policy * * * of treating such lands as
held for the benefit of the future State" (270 U.S. at 58-59 (emphasis
added)).  This passage plainly implies that a grant is not the only
means by which the State's title will be defeated, if "anything" else
sufficiently "evinces a purpose" to appropriate the property to
another use.  Further light is shed on this passage by the Court's
observation earlier in the same paragraph that the reservation in
question "was not intended" to "operate() as a disposal of lands
underlying navigable waters within its limits" (id. at 58 (emphasis
added));  the Court did not suggest that Congress was without
constitutional authority to make a "disposal" by reservation.

   3. Petitioner necessarily concedes that the United States, prior to
statehood, may grant submerged lands to a private party, and thereby
defeat a new State's claim.  Petitioner makes that concession even
though such a conveyance places the property beyond the control of
both the United States and the State, and may thereby frustrate the
sovereign ability of either to regulate and control the use of the
lands to protect the public interest in the use of the overlying
waters.  It would be anomalous indeed if the United States were to be
barred by the Constitution from disposing of the very same lands to
itself, in order to further what Congress has determined to be
important public purposes.

   Certainly the purposes underlying the equal footing doctrine and
its rebuttable presumption against pre-statehood conveyances by the
United States do not suggest that anomalous result.  If the lands are
placed in reserved status, there is no "separation from sovereignty"
(United States v. Oregon, 295 U.S. at 14).  Congress, in providing for
the administration of the lands, may take account not only of the
interests of the Nation as a whole that underlie the federal
reservation, but also of any distinct responsibility, in the nature of
a public trust, that a State or territory might be thought to have as
regards the lands.  Cf. Kleppe v. New Mexico, 426 U.S. 529, 545-546
(1976);  Massachusetts v. Mellon, 262 U.S. 447, 485-486 (1923);
Missouri v. Holland, 252 U.S. 416, 434 (1920).  /5/

   Nor does a federal reservation of the lands, unlike a grant to a
private party, foreclose the possibility that the State may ultimately
acquire title.  For example, the reservation mandated by the 1888 and
1890 Acts in this case was not irrevocable;  it continues only "unitl
otherwise provided by law" (26 Stat. 391).  If a State is formed in
the territory in which the lands were situated at the time of such a
reservation, and if Congress then determines that the lands are no
longer needed for the special federal purpose that led to their
reservation, Congress retains the authority to remove the submerged
lands from the reservation, restore them to their prior status as
unappropriated lands of the United States, and elect to pass them to
the State.  See Pet. App. 41a.

   4. The effect of a federal reservation on the operation of the
equal footing doctrine is but one aspect of the familiar relationship
between the United States and the new States upon their admission into
the Union.  For example, Section 6 of the Utah Enabling Act (ch. 138,
28 Stat. 107), states that the grants of school sections and the
indemnity selections shall not apply at any time to "sections embraced
in permanent reservations for national purposes" and that no "lands
embraced in Indian, military, or other reservations of any character"
shall be subject to the grant and indemnity provisions "until the
reservation shall have been extinguished and such lands be restored to
and become part of the public domain" (id. at 109 (emphasis added)).
See United States v. Wyoming, 331 U.S. 440, 445-446, 454-455 (1947);
Andrus v. Utah, 446 U.S. 500, 506-507 (1980).  Thus, the Utah Enabling
Act, consistent with the relationship of the United States and the
States under the Supremacy Clause, embodies the principle that lands
reserved for federal purpose pursuant to federal law are not among the
unappropriated lands that are to be granted to a State upon its
admission to the Union.  In the absence of a reservation for a
specific federal purpose, lands underlying navigable waters likewise
remain unappropriated, "to be granted to such States when they enter
the Union" (Montana, 450 U.S. at 551), albeit by operation of the
equal footing doctrine.  But if there has been a federal reservation,
those lands neither pass to the State under the equal footing doctrine
nor become available for selection by the State in satisfaction of
statutory grants.

   5. Finally, petitioner's submission that a federal reservation of
lands underlying navigable waters cannot defeat a new State's title
has been rejected by the only two courts of appeals that have squarely
considered the issue -- the Tenth Circuit in the instant case and the
Ninth Circuit in two earlier decisions.  In United States v. Alaska,
423 F.2d 764, 766-767, cert. denied, 400 U.S. 967 (1970), the Ninth
Circuit held the reservation of the bed of a navigable lake, as part
of federal wildlife refuge (see Udall v. Tallman, 380 U.S. 1, 5
(1965)), defeated Alaska's claim that title had passed to it upon
admission to the Union.  In a subsequent decision, the Ninth Circuit
held that an Executive Order issued in 1915, which withdrew lands
beneath tidal waters in Anchorage for construction of terminal
facilities and docks for the Alaska Railroad, prevented title from
passing to the State.  United States v. City of Anchorage, 437 F.2d
1081, 1082-1085 (1971).  Although the federal statute did not by its
terms authorize the reservation of lands underlying navigable waters,
the court, noting the need for a railroad to develop the isolated
interior and the need for terminal facilities for such a railroad,
found that the reservation of the tidelands for the facilities was a
"public exigency." Id. at 1084-1085.  The court below correctly
followed those Ninth Circuit decisions here (Pet. App. 8a).  /6/

 II. THE BED OF UTAH LAKE DID NOT PASS TO THE STATE UNDER THE EQUAL
FOOTING DOCTRINE BECAUSE CONGRESS, IN THE SUNDRY APPROPRIATIONS ACTS
OF 1888 AND 1890, RESERVED THE BED "AS THE PROPERTY OF THE UNITED
STATES" FOR USE AS A RESERVOIR SITE

   As we now explain, Congress has expressly reserved the bed of Utah
Lake in federal ownership.  Utah Lake was formally selected as a
reservoir site by the Geological Survey in 1889, pursuant to the 1888
Act.  The record unequivocally demonstrates, and both courts below
found, that this selection included the bed of the Lake.  By operation
of the 1888 Act, "all the lands" so selected were automatically
reserved "as the property of the United States," until further
provided by law.  After the Geological Survey informed Congress of the
selection of the bed of Utah Lake, Congress in 1890 ratified the
selection of that and other reservoir sites and continued their status
as reserved lands of the United States, once again "until otherwise
provided by law." Since 1890, Congress has not removed the lands
underlying Utah Lake from their reserved status or otherwise provided
by law for their disposition.  By virtue of these statutory
reservations in 1888 and 1890, ownership of the bed of Utah Lake did
not pass to the State upon its admission to the Union, but instead
remains in the United States.

 A. The Administrative Selection of Utah Lake As a Reservoir Site
Specifically Included the Bed of the Lake

   The record clearly establishes that the lands underlying Utah Lake
were selected as a reservoir site pursuant to the 1888 Act.  In his
letter of April 6, 1889, Major John Wesley Powell, the Director of the
Geological Survey, informed the Secretary of the Interior that the
"site of Utah Lake" -- "together with all lands situate within two
statute miles of the border of said lake at high water" -- had been
selected as a reservoir site "in conformity with the act approved
October 2, 1888" (J.A. 19).  The phrase "site of Utah Lake" in this
context connotes not merely topographical location, but also the lands
on which the reservoir would actually be situated.  /7/

   Thereafter, in the Tenth Annual Report of the Geological Survey,
which was formally transmitted to Congress, Major Powell stated that a
Mr. Newell had been sent to examine Utah Lake "with reference to its
capacity for a reservoir site," in order that he might "furnish the
specifications for its withdrawal as such under the law, so far as the
lands covered or overflowed by it or the lands bordering upon it were
still public lands" (id. at 88) (J.A. 25) (emphasis added)).  See also
id. at 63 (J.A. 24) (listing "Utah Lake" among "Reservoir Sites
Selected").  /8/ In the Eleventh Annual Report, Congress was informed
that a "careful survey" had been made of Utah Lake during the
intervening year, and that the "segregation" of the Lake as a
reservoir site included "not only the bed but the lowlands up to mean
high water" (id. at 184) (J.A. 29) (emphasis added).  /9/

   As the district court found on the basis of this evidence, "(t)he
language used in the correspondence and documents surrounding the 1889
withdrawal expressly includes the bed of Utah Lake" (Pet. App. 38a).
The court of appeals affirmed this finding, observing that "(t)he
language of these documents reveals that the United States intended to
and did in fact select the entire lakebed as part of the 1889
reservoir site selection" (id. at 13a).  /10/ Petitioner does not
contend that this concurrent finding by the courts below is clearly
erroneous (see Pet. App. Br. 36 n.19), and it therefore is controlling
here.

 B. By Virtue Of Its Selection By The Geological Survey As a Reservoir
Site, The Bed Of Utah Lake Was Automatically Reserved By the 1888 Act

   The 1888 Act provided that "all the lands which may hereafter be
designated or selected by such United States surveys for sites for
reservoirs * * * are from this time henceforth hereby reserved from
sale as the property of the United States, and shall not be subject
after passage of this act, to entry, settlement, or occupation until
further provided by law" (25 Stat. 527 (emphasis added)).  As a result
of the Geological Survey's selection, the bed of the Lake in the
designation, any presumption against a pre-statehood reservation of
land underlying navigable waters has unquestionably been satisfied:
the intention to reserve the land was "rendered 'in clear and especial
words'" and "9in terms (that) embrace(d) the land under the waters'"
(Montana, 450 U.S. at 552, quoting Martin v. Waddell, 41 U.S. (16
Pet.) 367, 411 (1842), and Packer v. Bird, 137 U.S. at 672).

   Petitioner contends (Pet. Br. 36 n.19), however, that the
administrative actions of the Secretary of the Interior and the
Director of the Geological Survey are "irrelevant," because, in
petitioner's view (Pet. Br. 21-31), those officials had no authority
under the 1888 Act to select and withdraw the bed of the Lake.  This
contention is without merit.  The statutory basis for the reservation
of Utah Lake is compelling.

 1. The Reservation Under The 1888 Act Occurred By Operation Of Law;
It Was Not An Administrative Withdrawal

   As an initial matter, petitioners errs in characterizing (Pet. Br.
i, 4, 21) the reservation of the bed of Utah Lake as an administrative
withdrawal by the Geological Survey.  As the statutory text makes
clear, it was the 1888 Act itself that "henceforth hereby reserved"
the bed of Utah Lake and all other land that was found to be suitable
for reservoir sites.

   The legislative history confirms this understanding.  As passed by
the Senate, the bill provided that "all the lands which may be
designated for reservoirs and canals for irrigation shall be reserved
as property of the United States, and shall not be subjected to entry
or settlement until hereafter provided for by law" (19 Cong. Reg.
7031-7032 (1888)).  This language might have been understood to leave
the actual reservation of lands to Executive officials, after the
lands were designated as reservoir or canal sites.  The provision then
was amended in the House in three respects:  (i) the reservation was
made to occur by operation of law;  (ii) it was made effective as of
the enactment date;  and (iii) the scope of the reservation was
expanded to include not only sites for reservoirs and canals, but also
lands susceptible of irrigation.  These provisions were retained in
the 1888 Act as finally passed.  /11/

   Representative Symes explained that the House amendment had been
framed "for the particular purpose of reserving from this time forth
the lands which should be selected as the sites of the reservoirs" (19
Cong. Rec. 8507 (1888)).  He continued (ibid. (emphasis added)):

         That is the intention of the amendment and its effects as it
      now stands.  * * * (T)hat is to say, from now on all lands
      selected for reservoirs, ditches, or canals shall be absolutely
      reserved, and that if A, B, or C in the meantime locates upon
      them that he shall be subject to be dispossessed, if the sites
      are necessary for such purposes.

   The Department of the Interior followed this interpretation in its
administration of the Act.  In an August 5, 1889 circular (see 21
Cong. Rec. Rec. 9156 (1890)), the Commission of the General Land
Office stated that reservoir sites "are, since the passage of * * *
(the 1888) act absolutely reserved from sale as property of the United
States, and shall not be subject after passage of the act to entry,
settlement, or occupation until further provided by law, or (until)
the President, by proclamation, may open up said lands to settlement."
The Attorney General later concurred in this interpretation,
concluding that selection of a reservoir site results in "the
reservation thereof dating back to the passage of this act." 19 Op.
Att'y Gen. 564, 566 (1890).  Thus, Congress deemed the reservation of
lands that were found to be suitable for reservoir sites and related
irrigation purposes to be so imperative that it chose not to leave the
reservation of those lands to the discretion of the Secretary and
foreclosed the possibility that administrative delay might frustrate
the reservation.  /12/

 2. The 1888 Act Plainly Authorized The Selection Of The Bed Of Utah
Lake As A Reservoir Site

   The first sentence of the 1888 Act clearly authorized the
Geological Survey to select the lands underlying Utah Lake.  That
selection in turn triggered the statutory reservation of those lands
pursuant to the third sentence of the Act, just discussed.

   a. The Statutory Text.  The first sentence of the 1888 Act made an
appropriation of funds "(f)or the purpose of investigating the extent
to which the arid region of the United States can be redeemed by
irrigation, and the segregation of the irrigable lands in such arid
region, and for the selection of sites for reservoirs and other
hydraulic works necessary for the storage and utilization of water for
irrigation" (25 Stat. 526-527 (emphasis added)).  The term "sites for
reservoirs" refers to the land on which the water actually would be
stored.  See note 7, supra.  That interpretation may be most evident
where the site consists of dry land that would be covered with water
only after storage facilities are built.  But the same interpretation
is required where the site is a "natural reservoir" that already is
covered by water in a lake.  Although the lake would be converted into
a reservoir for irrigation purposes (through modifications to its
natural condition), the site for the reservoir would be the land on
which the water would be stored after those modifications.  Moreover,
the congressional intent that the term "site" in the first sentence
refer to the "lands" on which the reservoir would be situated is
confirmed by the third sentence of the 1888 Act, which directly links
the two terms by mandating that all the lands * * * selected * * * for
sites for reservoirs" be reserved.

   b. Background and Legislative History.  For the reasons just
stated, the selection of the bed of Utah Lake as a reservoir site was
firmly supported by the plain language of the 1888 Act.  "'Absent a
clearly expressed legislative intention to the contrary, that language
must ordinarily be regarded as conclusive.'" Escondido Mutual Water
Co. v. LaJolla Band of Mission Indians, 466 U.S. 765, 772 (1984),
quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S.
102, 108 (1980).

   As petitioner concedes (Pet. Br. 22), nothing in the legislative
history suggests that lands underlying navigable waters in a territory
were to be excluded from the selection and reservation provisions of
the 1888 Act.  The very sweep of the Act's provisions for the
reservation of lands sufficiently answers this or any other plea for
an implied exception.  After all, the bill was amended during its
consideration to provide for the reservation not only of sites for
reservoirs and canals, but also of all arid lands that might be
irrigated by those works (see page 24 and note 11, supra), which "had
the practical effect of reserving all of the public lands in the West
from settlement." California v. United States, 438 U.S. 645, 659
(1978).

   To be sure, the reservation of the lands that were merely
susceptible of irrigation was repealed two years later, in order to
make those lands available for settlement.  But Congress in 1890 did
not disturb the statutory reservation of reservoir sites under the
1888 Act.  That reservation was at the core of the all-embracing
congressional intention to preserve under the ownership and control of
the United States all federally owned lands that might be used for
irrigation purposes.  See pages 40-42, infra.  "'(I)f we are to give
(the statutory provision) the scope that its origins dictate, we must
accord it a sweep as broad as its language.'" North Haven Board of
Education v. Bell, 456 U.S. 512, 521 (1982), quoting United States v.
Price, 383 U.S. 787, 801 (1966).  Moreover, as we explain more fully
below (pages 40-42, infra), the tenor of the debates on the 1888 Act
reinforces the conclusion that its language must be broadly construed
to embrace all potential reservoir sites that were still in federal
ownership.

   c. Contemporaneous Administrative Construction.  It also is
significant that the selection of the bed of Utah Lake occurred only 6
months after the 1888 Act was passed, and therefore was the product of
the contemporaneous construction of the Act by those "'charged with
the responsibility of setting its machinery in motion.'" Aluminum Co.
of America v. Central Lincoln Peoples' Utility District, 467 U.S. 380,
390 (1984), quoting Udall v. Tallman, 380 U.S. 1, 16 (1965).  Accord,
CFTC v. Schor, No. 85-621 (July 7, 1986), slip op. 10.  The Director
of the Geological Survey at the time, John Wesley Powell, was known by
Congress to be Intimately familiar with the irrigation of arid lands,
especially in Utah.  His Report on the Lands of the Arid Region, which
was completed and submitted to Congress in 1878, was a seminal work in
the evolution of the Nation's reclamation policy.  P. Gates, History
of Public Land Law Development 645 (1968).  In that report, Major
Powell had described Utah Lake as a "natural reservoir" that could be
utilized for irrigation with the addition of certain works (Report on
the Lands of the Arid Region of the United States, with a More
Detailed Account of the Lands of Utah, H.R. Exec. Doc. 73, 45th Cong.,
2d Sess. 105, 120-124 (1878)), and he had urged that "(s)ites for
reservoirs should be set apart, in order that no hinderance may be
placed upon the increase of irrigation by the storage of water" (id.
at 23).  /13/ Accordingly, when Congress passed the 1888 Act, it had
every reason to expect that Utah Lake would be among the first sites
selected.

   Not only did Major Powell's background uniquely qualify him to
interpret and implement the statutory directive;  he proposed to
Congress the very language in the first sentence of the 1888 Act
pursuant to which the bed of Utah Lake was selected.  /14/ For this
reason as well, Major Powell's contemporaneous selection of Utah Lake
is entitled to special weight.  Miller v. Youakim, 440 U.S. 125, 144
(1979);  United States v. American Trucking Ass'n, 310 U.S. 534, 549
(1940).

 C. Congress Ratified The Selection Of The Bed of Utah Lake As A
Reservoir Site in 1890 And Retained It In Restored Status

   The statutory basis for the reservation of the bed of Utah Lake
does not derive from the 1888 Act alone.  The selection of the Lake as
a reservoir site in 1889 was brought to the attention of Congress on a
number of occasions, and Congress then ratified the selection of that
and other reservoir sites in the 1890 Act.  The designation of the
lands underlying Utah Lake as a reservoir site was formally reported
to Congress in at least three Annual Reports of the Geological Survey,
the first of which was submitted to Congress well before it passed the
1890 Act.  See pages 21-22, supra.  /15/ In addition, the use of Utah
Lake as a reservoir and its selection as a reservoir site pursuant to
the 1888 Act were discussed during extensive hearings held in the
Spring of 1890 by committees in both the Senate and the House.  Those
hearings were convened for the specific purpose of evaluating the
irrigation survey funded by the 1888 Act, the suitability and
selection of reservoir sites, and the promotion of irrigation in the
arid region generally.  /16/

   Approximately six months after completion of the hearings, and
after many days of floor debate regarding the 1888 Act and the
Nation's irrigation policy, /17/ Congress passed the 1890 Act.  That
Act revised the 1888 Act in critical respects.  But although the
selection of the bed of Utah Lake had been called to its specific
attention, Congress declined to disturb either that selection or the
statutory interpretation on which it was based.  Compare FDIC v.
Philadelphia Gear Corp., No. 84-1972 (May 27, 1986), slip op. 11;
Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 381-382
(1982).  To the contrary, Congress in 1890 expressly preserved all
prior selections of reservoir sites.  There was widespread public
opposition in the West to the broad language of the 1888 Act that
withdrew from settlement not only reservoir sites, but also all public
lands that would be constructed at those sites.  See California v.
United States, 438 U.S. at 659;  Ide v. United States, 263 U.S. 497,
501-502 (1924);  P. Gates, supra, at 641-642.  /18/ The 1890 Act
therefore repealed the 1888 Act insofar as it "provide(d) for the
withdrawal of the public lands from entry, occupation and settlement"
(26 Stat. 391).

   There was no comparable degree of opposition to the reservation
sites pursuant to the 1888 Act.  In fact, the debates reflected
considerable support for the proposition that reservoir sites still
owned by the United States should be kept out of the hands of
speculators and monopolists;  that settlement or other disposal of
potential reservoir sites might impede development by leading to
claims for compensation when the works were to be built;  and that
reservoir sites should be preserved under federal control pending
future legislation providing for orderly development of those sites.
/19/ Therefore, in an excepting clause in the 1890 Act, Congress
specified that "reservoir sites heretofore located or selected shall
remain segregated and reserved from entry or settlement as provided by
(the 1888) act, until otherwise provided by law" (ibid.).  Since the
bed of Utah Lake had been "(t)heretofore * * * selected" as a
reservoir site, the 1890 Act expressly ratified that selection and
continued the reservation of the bed "as provided by (the 1888) Act"
-- i.e., "as the property of the United States" (25 Stat. 527) --
"until otherwise provided by law" (26 Stat. 391).  Even if there were
some doubt under the 1888 Act standing alone regarding the authority
of the Geological Survey to select the bed of Utah Lake as a reservoir
site, those doubts were erased by this explicit directive in the 1890
Act that reservoir sites previously selected "shall remain segregated
and reserved." See, e.g., CFTC v. Schor, slip op. 12;  Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 381-382 (1969).

 D. Congress Again Declined To Disturb The Reservation of Utah Lake in
1891 and 1897, When It Amended The 1888 and 1890 Acts

   Congress again declined to disturb the reserved status of the bed
of Utah Lake in 1891 and 1897, when it revisited the subject of
irrigation and the use of the reservoir sites reserved by the 1888
Act.

   1. The Act of March 3, 1891, ch. 561, 26 Stat. 1095 et seq., made a
number of the major revisions of the general land laws that were
pending before Congress when it passed the 1888 and 1890 Acts.  It
repealed the Timber Culture and Preemption Acts and tightened the
Desert Land Act to guard against abuses (Sections 1, 2, 4, 26 Stat.
1095-1097;  P. Gates, supra, at 642), and it granted private
individuals and corporations rights of way through "the public lands
and reservations of the United States" for the construction of
reservoirs, canals, and ditches for irrigation, provided that there
was no interference with the government's right to occupy its
reservations.  Sections 18-21, 26 Stat. 1101-1102.  Finally, in
Section 17, Congress provided that reservoir sites selected or to be
selected pursuant to the 1888 Act "shall be restricted to and shall
contain only so much land as is actually necessary for the
construction and maintenance of reservoirs" (26 Stat. 1101;  43 U.S.C.
663).  This amendment was enacted several months after the Geological
Survey reiterated to Congress in its Eleventh Annual Report that the
bed of Utah Lake had been selected as a reservoir site.  But although
the 1891 amendment reflected congressional concern that the
reservation of reservoir sites might sometimes exceed the proper scope
of the 1888 Act, Congress left in place the reservation of Utah Lake
under the 1888 Act.

   2. The 1891 Act appeared to authorize the private occupation and
development of all reservoir sites on public lands and reservations,
but it was administratively construed by the Secretary not to apply to
reservoir sites reserved by the 1888 Act.  29 Cong. Rec. 1948 (1897)
(remarks of Rep. Lacey).  Accordingly, Congress expressly provided in
the 1897 Act that all reservoir sites reserved or to be reserved by
the United States were to be open to use and occupation under the 1891
Act.  Act of Feb. 26, 1897, ch. 535 (29 Stat. 599, 43 U.S.C. 664);
see California v. United States, 438 U.S. at 659.  But Congress once
again declined to disturb the 1888 Act reservations themselves.

   Significantly, moreover, Congress provided in the 1897 Act that
"any State is hereby authorized to improve and occupy such reservoir
sites to the same extent as an individual or private corporation,
under such rules and regulations as the Secretary of the Interior may
prescribe" (29 Stat. 599).  In so doing, Congress declined to adopt
proposals to convey reservoir sites to the States.  29 Cong. Rec. 1847
(1897) (remarks of Rep. Cannon);  id. at 1950 (remarks of Rep. Bell);
see P. Gates, supra, at 647-651.  Thus, even where a State proposed to
develop the waters within its borders for the benefit of its citizens,
Congress chose in the 1897 Act to retain under federal ownership and
control the public lands that had been placed in reservation status by
the 1888 Act.  See California v. United States, 438 U.S. at 662,
quoting 29 Cong. Rec. 1952 (1897) (remarks of Rep. Lacey) ("'The
reservoirs in which the water is stored belong to the government'").
The 1897 Act therefore further undermines petitioner's argument that
Congress intended in the 1888 Act to exclude from coverage those
reservoir sites that happened to underlie navigable waters in the
territories, and instead to provide for title to and control over
those sites to pass to the new States that might be created.

 E. Petitioner's Contention That The Background Of The 1888 Act
Supports An Implied Exclusion Of The Bed Of Utah Lake Is Without Merit

   Petitioner essentially ignores the dispositive indicia of
legislative intent discussed above:  (i) the broad language of the
1888 Act providing for the selection of "reservoir sites" and
mandating the reservation of "all the lands" so selected;  (ii) the
significance of Major Powell's involvement in the drafting and
contemporaneous implementation of the statutory language;  (iii)
Congress's awareness of the selection of the lands underlying Utah
Lake;  and (iv) Congress's subsequent ratification of the reservation
of that and other sites in the 1890 Act.  Instead, petitioner relies
on two inferences it seeks to extract from the background and
legislative history of the Act.

   First, petitioner attaches significance to the absence of any
specific reference in the legislative history of the 1888 Act to what
it labels "sovereign lands" (the beds of navigable waters), as
distinguished from "public lands." See Pet. Br. 27-29.  Second,
petitioner contends that the purpose of the 1888 Act was solely to
prevent speculation in and monopolization of lands that would be
suitable sites for reservoirs or be irrigated by them.  In
petitioner's view, this purpose did not extend to so-called "sovereign
lands," because it was impossible for settlers to occupy lands that
were under water.  See Pet. Br. 24-26, 29-30, 33-34.  For these
reasons, petitioner urges that the 1888 Act should now be construed --
nearly 100 years after it was passed and the bed of Utah Lake was
reserved -- to have implicitly excluded Utah Lake from coverage.
There are numerous flaws in this analysis.

   1. Petitioner's extended discussion of the term "public lands" and
a supposed distinction between those and "sovereign lands" has no
relevance to this case.  The words "public lands" do not even appear
in the 1888 Act.  Whether those words should be understood to include
the bed of Utah Lake therefore is beside the point.  By contrast, the
language that does appear in the 1888 Act broadly provides for the
selection of reservoir sites throughout the "arid region" and for the
automatic reservation of "all the lands" so selected.  Petitioner has
not shown that this expansive language was understood by anyone to
exclude the bed of Utah Lake, which was widely regarded as a "natural
reservoir" at the time the 1888 Act was passed and was selected as a
reservoir site immediately thereafter.  Nor does petitioner cite any
occasion in the legislative history on which a Member used either the
statutory language or petitioner's term ("public lands") in
contradistinction to the term "sovereign lands" or its equivalent.  In
fact, the term "public lands" does not even appear in any of the
excerpts that petitioner quotes (Pet. Br. 27-28 & n.15) from the
legislative history.

   Moreover, this Court has made clear that even where a statute does
not expressly refer to "public lands," the bed of a navigable body of
water is not necessarily excluded and the statute's coverage must be
determined by regular guides to legislative intent.  Hynes v. Grimes
Packing Co., 337 U.S. 86, 116-118 (1949).  In the instant case, the
term "public lands" readily would be understood to include the bed of
Utah Lake, because the bed was in "public" ownership in 1888.  See,
e.g., 43 U.S.C. 1702(e);  16 U.S.C. 3102(1), (2), and (3).  Moreover,
in Choctaw Nation, the Court described "lands underlying navigable
waters" as "public lands" (397 U.S. at 633);  the Geological Survey,
in its Tenth Annual Report, described the lands covered by Utah Lake
as "public lands" (id. at 88);  and the 1890 Act referred to the lands
withdrawn by the 1888 Act, which Congress knew to include the bed of
Utah Lake, as "public lands" (26 Stat. 691).  /20/

   2. a. As we have shown, the plain language of the 1888 Act provided
for the reservation of all lands in the arid region that were suitable
reservation sites, without exception for lands that happened to
underlie existing lakes, whether navigable or not.  A court cannot
fashion an exception to such all-inclusive statutory text merely
because there is not a specific reference in the legislative history
to the precise factual circumstances before the court.  United States
v. Weber Aircraft Corp., 465 U.S. 792, 800-801 (1984).  The Court has
applied this principle of statutory construction to defeat claims by a
State, including a claim to the bed of a navigable river under the
equal footing doctrine.  See Block v. North Dakota, 461 U.S. at
287-288 & n.24, 291;  Jefferson County Pharmaceutical Ass'n v. Abbott
Laboratories, 460 U.S. 150, 159-162 & n.18 (1983).

   b. Indeed, there would have been no occasion for Congress to
consider a distinction between lands underlying navigable waters and
other types of land subject to the 1888 Act.  In the States of the
arid region that had been admitted to the Union by 1888, the beds of
navigable rivers and lakes already had passed to the States.  Those
beds were no longer "property of the United States" subject to
reservation under the 1888 Act.  By the same token, in the
territories, such as Utah, it was "well settled" that "the United
States * * * (had) the entire dominion and sovereignty, national and
municipal, Federal and state" (Shively, 152 U.S. at 48).  Congress
therefore had the power to dispose of public lands below navigable
waters in any territory of the United States for appropriate public
purposes (ibid.), "just as it (could) dispose of other public lands"
(Choctaw Nation, 397 U.S. at 633).  Those appropriate public purposes
plainly included the development of the water resources of the Utah
Territory.  There accordingly is no reason why the Fifty First
Congress should have hesitated to include the beds of navigable waters
in that Territory within the deliberately comprehensive reservation of
all lands of the United States in the arid region that were suitable
for reservoir purposes.

   In the absence of a clear indication of congressional intent, a
court may be reluctant to infer that Congress has made a private grant
of lands underlying navigable waters, because that would permanently
remove the lands from the governmental control in the public interest
that is an important incident of sovereignty.  Hynes, 337 U.S. at
102-106;  Alaska Pacific Fisheries, 248 U.S. at 87-88;  Illinois
Central R.R., 146 U.S. at 452-458.  By contrast, where, as here, the
legislation would retain the submerged lands in federal ownership for
a special federal purpose, the lands would remain subject to sovereign
control, including the power of Congress to permit the lands to pass
to a new State if the reservation no longer appeared necessary.  For
this reason, and because the navigability of overlying waters would
not have any bearing on the suitability of a site for a reservoir,
Congress would not have attached significance to whether some lakes or
rivers affected by the 1888 Act were navigable.  The absence of any
affirmative indication in the legislative history of a congressional
intent to treat submerged lands differently from all other federal
lands therefore undermines rather than supports petitioner's argument
for an implied exception to the broad language of the 1888 Act.

   3. a. The purposes to be served by the 1888 Act likewise do not
support an implied exception for Utah Lake.  Petitioner focuses only
on the purpose of preventing monopoly and speculation and the
impediments to development that could result from the need to
compensate individuals who might have entered lands that would be
needed for an irrigation propect.  Pet. Br. 24-26, 29-30, 33-34.  But
even if petitioner's narrow conception of the Act were correct, those
purposes in fact would have been served by application of the Act to
the bed of Utah Lake.  As the court of appeals observed, "although
officials of the (Geological Survey) initially thought that the water
level of Utah Lake should be raised, subsequent studies indicated that
the water level should be lowered below the natural shoreline," in
order to minimize the amount of water lost to evaporation (Pet. App.
19a-20a, citing S. Rep. 928, supra, Pt. 3, at 61 (emphasis added)).
If the water level were lowered, much of the lake bed would have been
exposed and settlers might have entered those lands, thereby posing
the very potential for monopolization and speculation through abuse of
the general land laws that Congress sought to prevent.  /21/

   Moreover, even if the normal level of the Lake had been lowered,
the water occasionally would have risen to its previous level in times
of flooding, which would have inudated the lands occupied by any
settlers who moved onto the newly exposed lake bed.  This potential in
fact was explained in the extensive discussion of Utah Lake in the
Geological Survey's Twelfth Annual Report (App., infra, 3a-4a).  If
settlement had been permitted to occur, the government might have been
subject to monetary claims for flooding that resulted from the
operation of the reservoir.  United States v. Virginia Electric Co.,
365 U.S. 624, 632-636 (1961).  /22/ Compensation also might have been
required for the use of any nonfederal lands, submerged or exposed,
that were required for the construction of dams, dikes, or other
works.  Thus, there was the potential at Utah Lake, as elsewhere, for
settlement to impede the use of the lands for a reservoir site.  /23/

   b. In any event, petitioner errs in contending that the terms and
purposes of the 1888 Act were limited to protecting against monopoly,
speculation, and other impediments to development that could have
resulted from private settlement on lands owned by the United States.
The 1888 Act did not merely provide, in the final passage upon which
petitioner relies (Pet. Br. 24-25), that the lands reserved for
reservoir and other purposes would "not be subject * * * to entry,
settlement or occupation." In the court of appeals' words, the 1888
Act also "provide(d) broadly" (Pet. App. 14a) that "all the lands"
selected were to be reserved from sale "as the property of the United
States."

   In addition, the background and legislative history of the 1888 Act
reveal that the lawmakers had a vision that transcended the immediate
need to protect federally owned lands from improvident conveyance
under then-existing land laws.  The debates reveal an overarching
desire to freeze the status of the designated lands, in order to
assure that they would indisputably remain the property of the United
States pending the determination by a future Congress as to how they
should be used or disposed of.  Some Members suggested that the
Federal Government itself might eventually develop the sites by
constructing large-scale irrigation projects -- a course Congress
ultimately chose 13 years later when it passed the Reclamation Act of
1902, ch. 1093, Section 1, 32 Stat. 388 et seq.  See California v.
United States, 438 U.S. at 663-664;  P. Gates, supra, at 643-656.
Thus, Representative Vandever inquired rhetorically:  if Congress can
appropriate funds to remove "impediments from the navigation of
streams whose sources are in the mountains," why "is it not proper to
furnish great reservoirs from which water can be obtained to irrigate
and fertilize the thirsty plains below, thus adding to the general
wealth of the country incalculable millions by increase of the public
domain for settlement?" 19 Cong. Rec. 8461 (1888).  Representative
O'Neill noted that private control of lands surrounding the Humboldt
River in the Utah Valley had caused "injury" to the area's
agricultural development, and he hoped that "millions" would be
invested in a government reservoir system at the foot of the Rocky
Mountains (id. at 8474-8475).  And Representative Herbert, who opposed
the reservation, also asserted that its true purpose was to establish
federal involvement in reservoir construction and management (id. at
8471-8473).

   Similarly, Senator Teller stated (id. at 7017-7018 (emphasis
added)):

         It is not necessary that the United States go to the expense
      of building these dams, but they must be put on land of the
      United States.

                      * * * * *

         But the time will come when the Government of the United
      States will have to do what every other government in the world
      has done in the arid regions -- put out its money to build
      reservoirs.

   Senator Teller later suggested in the alternative that once the
data had been collected by the Geological Survey, Congress might
convey the reservoir sites to the States (id. at 7027).  Senator
Manderson of Nebraska stated that diversions by Colorado ranchers
"threaten(ed) to destroy the Platte (River) for the uses of
Nebraskans" (id. at 7020).  He continued (ibid.; emphasis added):

         (O)ne of the ways, perhaps the only way, by which the
      difficulty can be remedied, is that the Government of the United
      States should take hold of this matter, and prevent the improper
      or improvident use of the waters of these great rivers by those
      who live near their sources.  By the building of reservoirs such
      as are contemplated by this amendment, it would be within the
      authority and power of the officers of the Government charged
      with that duty to see to it that there was maintained in those
      reservoirs a proper supply of water during the time when water
      was needed, either for purposes of navigation or for purposes of
      irrigation on the lower portion of the rivers.

   Representative Symes disputed the notion that the 1888 Act
committed the Federal Government to future irrigation projects, and,
like Senator Teller, he foresaw the possibility that Congress might
turn over "these reservoirs * * * to the States" (id. at 8510).  And
although Representative Felton believed that reservoir development
would not be undertaken by the Federal Government, but by a private
capital, he foresaw a distinct federal role in the imposition of
restrictions that would prevent private developers from becoming
unfettered "lords of the manor, the soil, and the water" (id. at
8476).  Representative Felton explained that the reservation of lands
was necessary so that "at a future time some way of disposing of them
may be determined upon, the same way as they surveyed the public lands
in order to determine in what way they would dispose of them" (id. at
8471).  See also Ide v. United States, 263 U.S. at 501-502 (the United
States had not yet "become engaged in the reclamation of its arid
public lands," but "was actively conducting investigations and
collecting data with a view to developing and formulating a feasible
plan for taking up and prosecuting that work").

   Congress's options for the reserved sites were wide-ranging.  The
common theme of the supporters of the 1888 Act was that, in order to
assure Congress a meaningful choice in the future, the United States
must retain ownership of the sites.  The 1888 Act resulted in large
part from Congress's acknowledged inability to anticipate the results
of the irrigation survey it was directing or the full range of factual
and legal options that might be available to it;  and the language
Congress chose was deliberately broad, in order to protect against the
unforeseen.  It therefore would be especially inappropriate to fashion
implied exceptions to the broad statutory language merely because some
concerns articulated by Congress might not eventuate on a particular
tract of land.  /24/

   6. Finally, petitioner's argument wholly fails to take account of
the fact that Congress ratified the reservation of the bed of Utah
Lake when it passed the 1890 Act.  Even if petitioner were correct
that the background of the 1888 Act was ambiguous concerning the
Director's statutory authority, Congress's subsequent action has
rendered that ambiguity irrelevant.  The 1890 Act provides that
reservoir sites "(t)herefore located or selected" shall "remain
segregated and reserved from entry or settlement "as provided in (the
1888) Act" -- i.e., "as the property of the United States" (25 Stat.
527) -- "until otherwise provided by law" (26 Stat. 391).  As Congress
well knew in 1890, the bed of Utah Lake had been explicitly designated
as a reservoir site in 1889.  See pages 29-31, supra.  By virtue of
Congress's incorporation of that designation into the 1890 Act,
Congress itself expressed in "'clear and especial words'" its
intention to reserve the bed of Utah Lake as the property of the
United States, and Congress's action "'in terms embrace(d) the lands
under the waters'" (Montana, 450 U.S. at 552 (citations omitted)).

 III. THE RESERVATION OF THE BED OF UTAH LAKE BY THE 1888 AND 1890
ACTS FOR USE AS A RESERVOIR SITE WAS IN FURTHERANCE OF APPROPRIATE
PUBLIC PURPOSES AND THEREFORE DEFEATS THE STATE'S CLAIM OF TITLE UNDER
THE EQUAL FOOTING DOCTRINE

   Petitioner argues (Pet. Br. 31-34) that even if Congress did
reserve the bed of Utah Lake as a statutory matter, the 1888 and 1890
Acts nevertheless were ineffective to prevent title from passing to
the State under the equal footing doctrine because, in petitioner's
view, no "public exigency" justified Congress's appropriation of those
lands for a reservoir site.  Petitioner thus argues that the 1888 and
1890 Acts are unconstitutional, at least as applied to Utah Lake.
"Judging the constitutionality of an Act of Congress is 'the gravest
and most delicate duty that this Court is called upon to perform'"
(Walters v. National Ass'n of Radiation Survivors, No. 84-571 (June
28, 1985), slip op. 13, quoting Blodgett v. Holden, 275 U.S. 152, 148
(1927) (opinion of Holmes, J.)).  Petitioner clearly has not shown
that Congress exceeded its constitutional authority in this case.

   A. The notion that Congress had no authority to dispose of the bed
of Utah Lake except upon the text of the Property Clause of the
Constitution or in this Court's decisions concerning Congress's
authority under that Clause as a general matter.  The Property Clause
on its face imposes no "public exigency" prerequisite or other
limitation on the exercise by Congress of its "Power to dispose of * *
* the Territory and other property belonging to the United States"
(Art. IV, Section 3, Cl. 2).  Compare U.S. Const. Amend. V ("nor shall
property be taken for a public use, without just compensation"
(emphasis added)).  Moreover, this Court repeatedly has held that
"(t)he power of Congress to dispose of any kind of property belonging
to the United States 'is vested in Congress without limitation.'"
Alabama v. Texas, 347 U.S. 272, 273 (1954), quoting United States v.
Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840).  See United States v.
Midwest Oil Co., 236 U.S. 459, 474 (1915) ("'Congress may deal with
(public domain lands) precisely as a private individual may deal with
a farming property.  It may sell or withhold them from sale.'");
United States v. San Francisco, 310 U.S. 16, 29-30 (1940), quoting
Light v. United States, 220 U.S. 523, 537 (1911) ("The power over the
public lands thus entrusted to Congress is without limitations.  'And
it is not for the courts to say how that trust shall be
administered.'");  see also Kleppe v. New Mexico, 426 U.S. at 536,
539-540;  Utah Power & Light Co. v. United States, 243 U.S. 389, 404
(1917).

   B. Nor do the Court's equal footing doctrine cases support a unique
constitutional requirement of a "public exigency" in the particular
context of the disposition of lands underlying navigable waters.

   1. As petitioner recognizes (Pet. Br. 31-32), the use of the term
"public exigency" in this setting originated in Shively v. Bowlby.  In
Shively, the Court stated that it had no doubt that Congress "has the
power to make grants of lands below (the) high water mark of navigable
waters * * * whenever it becomes necessary * * * to carry out * * *
public purposes appropriate to the objects for which the United States
hold the Territory" (152 U.S. at 48 (emphasis added);  see also id. at
58).  The Court did not use the term "public exigency" in this
formulation of Congress's power.  In fact, the Court stated only that
an "appropriate public purpose" is a sufficient condition for such a
disposal;  the Court did not even state that such a purpose is a
necessary condition, and that issue remains open.  /25/

   By contrast, in the passage from Shively in which the term "public
exigency" does appear, the Court was describing not the limits on
Congress's constitutional authority, but rather Congress's past
policy, which in turn assisted the Court in ascertaining Congress's
present intent.  Thus, the Court explained that Congress had "acted
upon the policy" (152 U.S. at 58) that the lands underlying navigable
waters would not be granted away during the period of territorial
government, "unless in case of some international duty or public
exigency" (id. at 50, 58).  Against this background of past practices,
the Court found nothing in the relevant statute "indicating any
intention on the part of Congress to depart from its settled policy of
not granting to individuals land under tide waters or navigable
rivers" (id. at 51).

   In subsequent cases, the Court has quoted or cited the passage from
Shively concerning Congress's power to dispose of lands underlying
navigable waters "whenever" necessary to further "appropriate" "public
purposes," and it has viewed the relevant question to be whether
Congress intended to make such a disposition.  In answering that
question, the Court has referred to the presence or absence of a
"public exigency," if at all, only as reflecting Congress's past
practice and therefore as a guide to ascertaining its present intent.
See Brewer-Elliott, 260 U.S. at 80, 83-85;  Holt State Bank, 270 U.S.
at 54-55, 58;  Choctaw Nation, 397 U.S. at 633.

   3. Most recently, in Montana, the Court stated that "it will not be
held that the United States has conveyed such land except, because of
'some international duty or public exigency'" (450 U.S. at 552,
quoting Holt State Bank, 270 U.S. at 55).  But the Court's opinion,
read as a whole, demonstrates that this statement likewise was made
with reference to the intent that will be attributed to Congress, and
was not intended to prescribe a constitutional limitation on
Congress's power.  Thus, at the outset, the Court in Montana quoted
the Shively passage acknowledging Congress's power to convey submerged
lands for "appropriate" "public purposes" (450 U.S. at 551), and it
then stated that a Court "must not infer" such a conveyance unless the
"'intention'" was "'made plain'" or the grant "'in terms embraces the
land under the waters'" (id. at 552, 554 (citations omitted)).  In
ruling against the Tribe, the Court simply found an insufficiently
clear expression of such an intention in the Crow Treaties (id. at
553-555);  there was no suggestion of any constitutional impediment.

   As an additional consideration, the Court stated:  "Moreover, even
though the establishment of an Indian reservation can be an
'appropriate public purpose' within the meaning of Shively * * * , the
situation of the Crow Indians at the time of the treaties presented no
'public exigency' that would have required Congress to depart from its
policy of reserving ownership of navigable waters for the future
States," because "fishing was not important to their diet or way of
life" (450 U.S. at 556).  In this passage, the Court once again viewed
the furthering of an "appropriate public purpose" as a sufficient
constitutional justification for the exercise by Congress of its power
to dispose of lands underlying navigable waters.  Indeed, the Court
indicated that the Executive Order reservation of submerged lands in
Alaska Pacific Fisheries was such an occasion, because the Indians
there depended upon fishing (ibid.).  But because the Crow Indians did
not depend upon fishing, the Court found no "public exigency"
suggesting the need to protect a fishery on their behalf, and
therefore no indication that the United States intended to depart from
its usual policy of not conveying the beds of navigable rivers.
Montana therefore is fully consistent with the Court's prior decisions
holding that Congress has the power to dispose of the beds of
navigable waters to further "appropriate" public purposes.

   C. The conclusion that no more than an "appropriate" (i.e., proper)
public purpose need to be shown is especially warranted in this case,
because the United States' reservation of the property for a paramount
federal use was the functional equivalent of the exercise of the power
of eminent domain.  If the lands underlying Utah Lake already had
passed to the State under the equal footing doctrine and the United
States then sought to reacquire them from the State through
condemnation (see Block v. North Dakota, 461 U.S. at 291;  page 14,
supra), the relevant constitutional inquiry would be whether the
property was taken for a "public use" (U.S. Const., Amend. V).  In
1888, however, there was no occasion for a form exercise of the power
of eminent domain or for the payment of compensation with respect to
the bed of Utah Lake, because the United States already had complete
title to and dominion over those lands while Utah remained a
Territory.  It would be anomalous to impose a higher standard of
necessity in such a case than is applied when the United States seeks
to acquire the bed of a navigable body of water that already is owned
by a sovereign State.  It follows that, at a minimum, the United
States has the constitutional power to reserve or appropriate lands
underlying navigable waters in a territory upon the showing that the
property would be devoted to a proper "public use" within the meaning
of the Fifth Amendment -- which we understand to be the equivalent of
an "appropriate public purpose" under Shively and its progeny.

   "The 'public use' requirement is * * * coterminous with the scope
of a sovereign's police powers," and "the Court has made clear that it
will not substitute its judgment for (Congress's) judgement as to what
constitutes a public use 'unless the use be palpably without
reasonable foundation.'" Hawaii Housing Authority v. Midkiff, 467 U.S.
229, 240-241 (1984), quoting United States v. Gettysburg Electric Ry.,
160 U.S. 668, 680 (1896).  Moreover, "whether in fact the provision
will accomplish its objectives is not the question:  the
constitutional requirement is satisfied if . . . the . . . Legislature
rationally could have believed that the (Act) would promote its
objective." Id. at 242, quoting Western & Southern Life Ins. Co. v.
State Bd. of Equalization, 451 U.S. 648, 671-672 (1981) (emphasis in
original).

   D. In this case, the reservation of the bed of Utah Lake was
plainly for a "public use" or "public purpose() appropriate to the
objects for which the United States (held) the Territory" -- if we
assume, arguendo, that any such justification is required (see page 45
and note 25, supra).  Both Courts below held that the reservation at
least satisfied this standard, in light of the important interest in
setting aside land for the fair, orderly, and economical irrigation of
arid lands (Pet. App. 23a, 39a-40a).  At the very least, Congress
rationally could have believed that these purposes would be served by
the reservation of reservoir sites generally and of the lands
underlying and surrounding Utah Lake in particular.  In fact,
petitioner does not contend that the "appropriate public purpose"
standard was not satisfied in this case.  Rather, petitioner argues
only that a different standard should be applied.  See Pet. Br. 31-34.

   E. Even if petitioner were correct that this Court's decisions
require the showing of a "public exigency," it is not clear that this
standard would differ from that of an "appropriate public purpose."
Although the word "exigency" often connotes a pressing need or sense
of urgency, it does not follow that it imparts in this context a
judicially enforceable standard of strict necessity.  The word
"exigency" also was used at the time of Shively, as now, to mean
"(t)hat which is needed or required:  demands, needs, requirements."
IX Murray's New English Dictionary 411 (1897).  In this sense, the
word is essentially synonymous with "necessary." As was made clear in
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), in which the
Court considered the scope of Congress's authority under the Necessary
and Proper Clause, the word "necessary" "has not a fixed character,"
but rather "admits of degrees of comparison" which may "increase or
decrease" the "urgency it imports" (id. at 414).  Accordingly, and
because the purpose of the Necessary and Proper Clause is to
facilitate the exercise of Congress's enumerated powers, not to
shackle Congress in its choice of options, the Court held that a
showing of strict necessity is not required and that the selection of
suitable means is largely committed to Congress.  (id. at 417-421).
"Let the end be legitimate," the Court stated, and Congress may pursue
"all means which are appropriate, which are plainly adopted to that
end" (id. at 421 (emphasis added)).  The word "necessary" in the
respects relevant here.  Accordingly, because the Court in Shively, as
in McCulloch v. Maryland, was considering a subject matter (the
disposition of federal property) in which Congress's authority is
exceedingly broad, the word "exigency" as used therein should be
understood to be the equivalent of the "appropriate public purpose"
standard stated elsewhere in the Shively opinion.  See 17 U.S. (4
Wheat.) at 422.  Especially in the present context, the language of
Shively and its progeny does not authorize the courts to second-guess
the wisdom of Congress's provision for the reservation of public lands
for particular public purposes merely because the reservation happens
to embrace lands underlying navigable waters.

   But even if a more stringent standard were intimated by the Court,
it plainly was satisfied here.  As we have explained (see pages 24-25,
38-42, supra), Congress responded to what it perceived as an urgent
and compelling need to prevent speculation, monopoly, and other
impediments to the use of federal lands for irrigation purposes, as
well as the need to maintain the lands under federal ownership and
control pending future development of reservoir sites.  Indeed,
against this background, the court of appeals specifically held that
"the withdrawal of Utah Lake, including its bed, was made for a public
purpose motivated by public exigency, given Congress's stated concerns
that arid lands of the western states be orderly and fairly irrigated,
reclaimed, and settled" (Pet. App. 23a (emphasis added)).

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   F. HENRY HABICHT II

      Assistant Attorney General

   LAWRENCE G. WALLACE

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   STEVEN A. HERMAN

   JACQUES B. GELIN

   DIRK D. SNEL

      Attorneys

   FEBRUARY 1987

   /1/ Petitioner also contended in the courts below that it obtained
title to the bed of Utah Lake under the Submerged Lands Act of 1953,
43 U.S.C. 1301-1303.  That claim was rejected by the courts below
(Pet. App. 24a-26a, 40a-41a), and petitioner does not renew it here.

   /2/ As used herein, the terms "1888 Act" and "1890 Act" (see page
4, infra) refer to only the relevant paragraph of each Act.

   /3/ The district court held that it had jurisdiction over this suit
under 28 U.S.C. 1331 and the Quiet Title Act, 28 U.S.C. 1346(f) and
2409a (Pet. App. 31a-32a, 36a).  However, the court of appeals,
relying on Block v. North Dakota, 461 U.S. 273 (1983), held that the
Quiet Title Act provided the sole basis for jurisdiction (Pet. App. 4a
n.2).  See also United States v. Mottaz, No. 85-546 (June 11, 1986),
slip op. 6-7, 12-13.

   In district court, respondents contended that petitioner's suit was
barred by the 12-year limitations period prescribed by 28 U.S.C.
2409a(f) for suits under the Quite Title Act (J.A. 8, 14).  The
district court rejected that contention, finding that, despite
correspondence between the Secretary of the Interior and the Governor
of Utah in 1963 and a Regional Solicitor's opinion in 1965, the
evidence did not establish that petitioner knew or should have known
of the United States' claim (Pet. App. 32a-36a).  Respondents did not
challenge that holding in the court of apeals (Pet. App. 4a n.2).

   /4/ See 38 U.S. (18 Pet.) at 513.

         "(W)hensoever a tract of land shall have once been legally
      appropriated to any purpose, from that moment, the land thus
      appropriated becomes severed from the mass of public lands;  and
      * * * no subsequent law, or proclamation, or sale, would be
      construed to embrace it, or to operate upon it;  although no
      reservation were made of it."

   /5/ The jurisdiction of the new State with respect to the waters
overlying the reserved lands and any conduct occurring on those waters
and lands would not be ousted by the reservation, except to the extent
preempted by federal law.  Utah Power & Light Co. v. United States,
243 U.S. 389, 404 (1917).

   /6/ Petitioner also relies (Pet. Br. 19) on United States v.
California, 436 U.S. 32 (1978).  At issue in that case, however, was a
post-statehood reservation by the President pursuant to the
Antiquities Act.  The reservation added to a national monument the
submerged bed of the Pacific Ocean for one nautical mile around each
of the islands in the monument.  The Court held that the 1949
reservation did not prevent California from acquiring title to those
lands pursuant to the Submerged Lands Act of 1953.  The case therefore
merely involved an interpretation of the Antiquities Act and the
Submerged Lands Act.  It did not hold, as petitioner argues, that the
United States is constitutionally foreclosed, prior to statehood, from
reserving rights in submerged federal lands, with the effect of
defeating a new State's claim under the equal footing doctrine.

   /7/ See IX Oxford English Dictionary (1933 ed.) (def. 3 of "site":
"The ground or area upon which a building, town, etc., has been built,
or which is set apart for some purpose.  Also, in mod. use, a plot, or
number of plots, of land intended or suitable for building purposes");
 Webster's Third New International Dictionary, at 2128 (1976) (def.
2b:  "a space of ground occupied or to be occupied by a building").

   /8/ The Secretary of the Interior stated in his report to the
President, which also was transmitted to Congress, that reservoir
sites had been selected in several States and Territories, including
Utah, and that "those selections have been approved by the Department"
(Tenth Annual Report, supra, at xxiii-xxiv).  See also J.A. 21, 22.

   /9/ The Eleventh Annual Report listed each section of land that had
been segregated at the Utah Lake site, for a total of 125,440 acres
(id. at 184-189) (J.A. 29-38)), and included a map showing the Lake
and the adjacent parcels that had been withdrawn (id. Plt. xcv).  This
Report also contained a separate narrative account of water conditions
in the Utah Lake water system (id. at 70-74), describing the way in
which the Lake could capture and spread flood waters over a broad
basin, from which they could be gradually released through the river
below (id. at 71).

   /10/ The court of appeals also relied on the Geological Survey's
Twelfth Annual Report (at 339), which informed Congress that the
Survey had segregated "the land around and under the lake" (Pet. App.
13a (emphasis added)).  This passage is quoted more fully in App.,
infra, 3a-4a.

   /11/ The appropriations bill originated in the House, but the
provision for survey and reservation of reservoir sites was added as a
floor amendment (No. 119) in the Senate.  19 Cong. Rec. 7012-7032
(1888).  The House refused to concur in that and other Senate
amendments (id. at 7360, 7681-7682), and the first conference
committee was unable to reach agreement on a number of amendments,
including No. 119 (id. at 7964-7965).  The House then adopted a
substitute for the Senate amendment, which reduced the appropriation
to $100,000 and incorporated a reservation provision that was
essentially identical to the one ultimately included in the 1888 Act
(id. at 8200, 8202, 8400, 8402, 8505, 8519, 8535, 8542-8543).
However, this substitute was not accepted by the Senate until a
subsequent conference committee added to the final proviso, which
permitted the President, by proclamation, to open any of the reserved
lands to settlement under the homestead laws (id. at 8809, 8824,
8898-8899, 8980, 9012).

   /12/ The 1890 Act provides that reservoir sites selected after
passage of that Act are reserved only from the date of selection,
although reservoir sites (such as Utah Lake) that were located or
selected prior to the 1890 Act remain segregated and reserved until
otherwise provided by law.  21 Cong. Rec. 9150 (1890) (Sen. Allison).

   /13/ The Report on the Lands of the Arid Region was transmitted to
the Speaker of the House by the Secretary of the Interior, who
"commend(ed) the views set forth by Major Powell * * * to the
consideration of Congress" (H.R. Exec. Doc. 73, supra, at iii-iv).

   /14/ On March 20, 1888, the President signed a joint resolution
that directed the Geological Survey to examine the "practicality of
constructing reservoirs" and other factors bearing on the question of
water storage for irrigation.  Jt. Res. No. 7, 50th Cong., 1st Sess.,
25 Stat. 618;  19 Cong. Rec. 1766, 1977 (1888).  The Senate then
passed a resolution on March 27, 1888, directing the Secretary to
report on what appropriation would be necessary for that purpose,
segregating lands susceptible of irrigation, and "designating places
for reservoirs, canals and other hydraulic works." 19 Cong. Rec.
2428-2429 (1888).

   In response to the Senate resolution, a report prepared by Major
Powell was submitted to the Senate by the Secretary on May 11, 1888.
Tenth Annual Report, supra, at 8-9.  That report contained proposed
language (see id. at 14) for the appropriations bill that was
identical to the first sentence of the 1888 Act as eventually enacted,
with two exceptions:  (i) it did not contain the reference in the 1888
Act to the use of reservoirs for "prevention of floods and overflows";
 and (ii) it provided for the appropriation of $250,000, rather than
$100,000.  See 19 Cong. Rec. 8462 (1888) (Rep. Forney) (referring to
Major Powell's proposed amendment).

   /15/ The Tenth Annual Report was dated July 25, 1889 (id. Pt. 2, at
1) and was communicated to Congress at the beginning of the
Fifty-First Congress (id. at cover), which commenced on December 2,
1889 (21 Cong. Rec. 27, 79 (1889)).  See id. at 9146-9151.  The
"careful survey" of Utah Lake and the detailed designation of the
sections reserved, which were described in the Eleventh Annual Report
(see page 22, supra), obviously had also been completed before the
1890 Act was passed, because the 1890 Act became law on August 30 and
the Eleventh Annual Report was submitted to the Secretary on September
1, 1890 (id. Pt. 2, at i).

   The significance of these reports is underscored by the fact that
the 1888 Act itself required the Director of the Geological Survey to
report annually to Congress on the irrigation survey (25 Stat.
526-527).  The selection of the beds of some existing lakes as
reservoir sites also was brought to Congress's attention in a report
to the Senate by the Secretary on July 30, 1890, while Congress was
debating the 1890 Act (see note 17, infra), in response to a Senate
resolution of July 10 (21 Cong. Rec. 7087 (1890)).  See S. Exec. Doc.
199, 51st Cong., 1st Sess. 1 (1890) (referring to survey methods "(i)f
the land reserved for the reservoir is not covered by the water of a
lake," thereby making clear that some lands were covered by a lake);
see also id. at 3.

   /16/ Major Powell's testimony before the House Committee is
reproduced in the Eleventh Annual Report (at 203-289).  In that
testimony, he described Utah Lake as a "natural reservoir" that could
be utilized for irrigation purposes with a relatively small
expenditure of money (id. at 232-234;  see also id. at 70-74).

   Excerpts from Major Powell's testimony before the Senate Committee
are reproduced in that Committee's comprehensive six-volume report on
irrigation.  S. Rep. 928, 51st Cong., 1st Sess. (1890).  Utah Lake was
included in a list furnished by Major Powell of all reservoir sites
that had been selected and defined as of January 1890 (id. Pt. 4, at
81, 83-84).  Major Powell testified that "Utah Lake is a natural
reservoir for the Jordan (River)" and that it could be used as a
reservoir by damming the outlet, although the increase in the water
level could flood some settled tracts bordering the Lake (id. at 39).
He also testified that "the people of the western region were
exceedingly anxious" that reservoir sites be promptly selected and
that, based on his experience, he "knew that Utah Lake was a site"
(id. Pt. 1, at 161).  See also id. at 41-46.

   The Senate Committee, accompanied by Major Powell, also conducted
extensive field hearings, including a session in Salt Lake City.  Once
again, there was testimony about the use of Utah Lake as a reservoir
(id. Pt. 3, at 14, 25, 29, 35, 39, 41, 48, 54, 55, 60-61).  The
Chairman of the Committee specifically referred to the reservation of
land at Utah Lake, which he noted would prevent people from crowding
onto land that was becoming exposed as the Lake receded during a dry
period (id. at 29).

   /17/ See 21 Cong. Rec. 6045-6059, 7269-7291, 7319-7333, 7341-7361,
7393-7417, 7722-7729, 7765-7782, 7875-7879, 7928-7936, 7978-7989,
8275-8280, 8323-8332, 8426-8427, 9137-9140, 9145-9157 (1980).

   /18/ The proviso to the 1888 Act would have permitted the President
to open under the homestead laws any of the lands that were reserved
by the 1888 Act, thereby permitting the Secretary to limit the impact
of the statutory reservation of irrigable lands.  However, the opening
of irrigable lands to homesteading was delayed pending the survey of
each reservoir site and adjacent lands.  P. Gates, supra, at 641-642.
Moreover, the President's authority to open reserved lands under the
homestead laws was far narrower than the bar erected by the
reservation, which also prevented entries under the mining laws
(Colomokas Gold Mining Co., 28 Pub. Lands Dec. 172, 174 (1899);  cf.
John U. Gabathuler, 15 Pub. Lands Dec. 418 (1892));  the timber and
stone laws (W.D. Harringan, 29 Pub. Lands Dec. 153 (1899));  and the
Desert Land Act (21 Cong. Rec. 7780 (1890));  P. Gates, supra, at
641-642.  The reservation also bars a State from selecting the lands
under various statutory provisions for school-section and similar
grants.  See page 19, supra.

   /19/ See, e.g., 21 Cong. Rec. 6048 (Rep. Sayers);  id. at 6050
(Rep. Mansur);  id. at 6052 (Rep. DuBois);  ibid. (Rep. Oates);  id.
at 6053 (Rep. Hemphill);  id. at 6054 (Rep. Bynum);  id. at 6055 (Rep.
Morrow).  Indeed, in the second part of the savings clause in 1890,
Congress continued the authority of the Geological Survey to select
reservoir sites in the future.

   /20/ The Court in Hynes distinguished the very decisions upon which
petitioner relies (Pet. Br. 23-24) for its "public lands" argument.
The Court noted that several of those decisions "ha(d) nothing to do
with tidelands or coastal waters (i.e., 'sovereign lands')," but
instead concerned "whether the lands in question were subject to
disposal as property of the United States, i.e., public lands" (337
U.S. at 114 n.39, citing Newhall v. Sanger, 92 U.S. 761, 763 (1875),
and Barber v. Harvey, 181 U.S. 481, 490 (1901)).  The question in
Newhall and Barber was whether disposal was prevented by private
rights in the land.  Here, by contrast, no private rights posed an
impediment to Congress's reservation of the lake bed in 1888, and the
lands underlying Utah Lake therefore "were subject to disposal as
property of the United States, i.e., public lands" (337 U.S. at 114
n.39).

   With respect to Borax, Ltd. v. Los Angeles, 296 U.S. 10 (1935), the
Court explained in Hynes that the tidelands already had passed to the
State under the equal footing doctrine and therefore were not public
lands of the United States (id. at 114 n.39, citing 296 U.S. at 17,
22).  In Mann v. Tacoma Land Co., 153 U.S. 273, 284 (1894), the Court
held that scrip authorizing the entry of "unoccupied and
unappropriated public lands" did not apply to tidelands.  This case,
of course, concerns "reserved," not "unappropriated," public lands (25
Stat. 527).  Moreover, as noted in Hynes (337 U.S. at 115), Mann
involved an allegedly permanent disposition into private hands, not a
reservation of land in federal ownership and control;  accordingly,
the Court in Mann simply invoked the established presumption against
reading general legislation granting public lands as applying to
tidelands (153 U.S. at 284).

   /21/ Petitioner contends (Pet. Br. 25, 29, 33) that it would have
been legally impossible for individuals to settle on the lands
underlying Utah Lake because the general land laws did not apply to
the beds of navigable waters.  It is by no means clear, however, that
the general land laws would have been inapplicable to the portions of
the bed that were to be exposed when the water level was permanently
lowered.  In any event, Congress reasonably could decide to include in
the 1888 Act an additional and comprehensive prohibition against the
use and occupation of all reservoir sites, rather than to leave their
protection to the notoriously inadequate safeguards of the
then-existing general land laws.  Moreover, the prohibition in the
1888 Act upon which petitioner relies is not on its face limited to
dispositions of land that might occur under the general land laws of
the United Statesl.  By its terms, that provision bars any "entry,
settlement, or occupation" of reserved lands, even by a future State
(or its grantee) under color of an equal footing claim.

   /22/ Similar disputes resulting from changes in the level of Utah
Lake had occurred in the past.  See note 16, supra;  S. Rep. 928,
supra, Pt. 6, at 39;  Eleventh Annual Report, supra, at 233;  Twelfth
Annual Report, supra, at 336.

   /23/ Utah Lake now is included in plans for development of the
Banneville Unit of the Bureau of Reclamation's Central Utah Project.
See Marsh v. Utah, 740 F.2d 799, 800-801 (10th Cir. 1984).

   /24/ Petitioner cites (Pet. Br. 37-38 n.21) the enacting clause and
Section 20 of the Utah Enabling Act, which provided, respectively, for
Utah to be admitted to the Union on an "equal footing" with other
States and for the repeal of all Acts "in conflict with" the Enabling
Act.  28 Stat. 107, 112.  However, as we have demonstrated, a
pre-statehood disposition by Congress of land underlying navigable
waters in no way "conflicts" with the principle of equal footing.  It
simply removes the affected tract from the category of unappropriated
lands to which the equal footing doctrine applies if a State is
created in the territory.  Moreover, Section 6 of the Utah Enabling
Act expressly excludes from state school-section and indemnity claims
all lands included within any federal reservation.  See pages 18-19,
supra.  There accordingly is no reason to believe that Congress
intended the routine repealer clause in Section 20 of that same Act to
override the reservation of federal lands underlying Utah Lake.  See
United States v. Alaska, 423 F.2d at 768.

   /25/ The Court's reference to dispositions for an appropriate
public purpose was simply one of a list of purposes whose validity,
the Court stated, "(w)e cannot doubt" (152 U.S. at 48).  Other
dispositions, based on a lesser (or no) justification, were not
foreclosed.  See Brewer-Elliott Oil & Gas Co. v. United States, 260
U.S. 77, 85 (1922) (it is an open question whether the United States
has "unrestricted power * * * , when exclusive sovereign, to part with
the bed of such a stream for any purpose," or whether disposition is
proper only for "a public purpose appropriate to the objects for which
the United States hold the Territory," within the meaning of Shively);
 see also Choctaw Nation, 397 U.S. at 647 (White, J., dissenting)
(noting question left open in Brewer-Elliott).  Although principles of
state public trust law have been held to limit the authority of a
state to dispose of certain interests in navigable waters and the
lands underlying them (see Illinois Central R. R. v. Illinois, supra;
Appleby v. City of New York, 271 U.S. 364, 395 (1926)), the Property
Clause of the Federal Constitution by its terms does not impose any
such restriction.

   APPENDIX