ELR Citation: ELR 20091
No(s). 24,001 (9th Cir. Mar 20, 1970)

The Executive Order that establishes the Kenai National Moose Range on Kenai Peninsula, Alaska (1941) must be construed to include the Tustumena Lake bottom in the federal withdrawal of lands which would otherwise have passed to the state of Alaska upon admission to the Union (Jan. 3, 1959). Not to find that the president intended to withdraw the submerged lands where the moose both feed and breed would be to attribute to him an empty intent and empty action. Consequently, Alaska's 1966 issuance of oil and gas leases for portions of Lake Tustumena bottom was void. The United States retains the title.

Counsel for the United States:
Douglas Bailey U.S. Attorney
Box 680
Anchorage, AK 99502
277-1491

Counsel for Alaska:
Robert Hartig
Attorney General's Office
360 K Street
Anchorage, AK 99502
272-1551

Before: ELY, KILKENNY, and TRASK, Circuit Judges.