On March 20, 1970, the 9th Circuit held that Executive Order No. 8979, which established the 2,000,000-acre Kenai National Moose Range on Kenai Peninsula, Alaska, in 1941, must be construed to include the Tustumena Lake bottom in the federal withdrawal of lands and waters that would otherwise have passed to the state of Alaska upon admission to the Union on January 3, 1959. The court concluded that if it did not find that the president intended to withdraw the submerged lands where the moose both feed and breed, it would effectively attribute to him an empty intent and empty action. The precept that land under navigable waters in acquired territory is generally held for the ultimate benefit of future states, and that disposals by the United States during the territorial period are not to be inferred lightly (see Shively v. Bowldy, 152 U.S. 1 (1894), was not violated where the intention to dispose (or withdraw) was, as here, "made very plain." Consequently, Alaska's 1966 issuance of oil and gas leases for portions of Lake Tustemena bottom was void; the United States retains title. The opinion appears at 1 ELR 20091.

One year later, on January 26, 1971, the Ninth Circuit extended its Alaska reasoning in United States v. City of Anchorage and held that the Alaska Railroad Act and the Executive Order that implemented it (Aug. 31, 1915) necessarily reserved for the use of the Alaska Railroad as a terminal the tidal and submerged lands contiguous to the ordinary high watermark on that portion of the eastern shore of Knik Arm, its tidelands, and the bed of Ship Creek that is within the boundaries of the terminal reserve. The validity of this reservation was unimpaired by Alaska's admission into the union. Consequently, the state's attempt to convey these lands to the city of Anchorage, and that city's attempted sale and lease of these lands, are invalid. The opinion in United States v. City of Anchorage appears at 1 ELR 20093.