60
Opinion of the Court
and regulation, taken together, placed the Range squarely within the proviso of § 6(e), preventing a transfer of lands covered by the application to Alaska.
The partial dissent's contrary conclusion rests on the view that the lands covered by the application "had no certainty of ever becoming a refuge or reservation." Post, at 71 (Thomas, J., concurring in part and dissenting in part). But the dissent identifies nothing in § 6(e) requiring "certainty" that a projected final action will in fact occur, converting lands designated for a particular use into lands so used, in order for § 6(e)'s proviso to prevent the transfer of such lands to Alaska. Moreover, our reading of the proviso of § 6(e) is reinforced by Alaska's concession that the uplands within the Range are held by the United States, not Alaska. Tr. of Oral Arg. 79; Letter from Attorney General Bruce M. Botelho to the Clerk of the Court, Mar. 3, 1997, p. 1. If the Master were correct that the application and regulation did not operate to "set apart" submerged lands in the proposed Range within the meaning of § 6(e), then it follows that the same instruments could not set apart uplands within the Range. Nevertheless, Alaska disclaims ownership of the uplands. The State argues that it could only have claimed uplands within the Refuge under § 6(b) of the Alaska State-hood Act, which authorized Alaska to select a specified amount of "vacant, unappropriated, and unreserved" federal land. Since Alaska did not select the uplands before the Secretary of the Interior approved the application for the Range in 1960, and since after 1960 the uplands were no longer "vacant, unappropriated, and unreserved," the State cannot now argue that it owns the uplands. Ibid. But the State's argument ignores the main clause of § 6(e). Under that clause, the United States transferred to Alaska "[a]ll real and personal property of the United States situated in the Territory of Alaska which is specifically used for the sole purpose of conservation and protection of the fisheries and wildlife of Alaska . . . ." The State does not explain why all
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