Opposition — Watt v. Alaska

79-1890

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

NOS. 78-1890 and A-949

Ceci. D. ANDRUS, SECRETARY OF THE INTERIOR, ET AL., AND

KENAI PENINSULA BOROUGH,

Petitioners,

STATE OF ALASKA,

Respondent.

BRIEF IN OPPOSITION TO PETITIONS FOR A

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

WILSON L. CONDON

Attorney General

G. THOMAS KOESTER

Assistant Attorney General

State of Alaska

Department of Law

Pouch K

Jvneau, Alaska 99811

Phone: (907) 465-3600

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15

li

CITATIONS

CASES PAGE

Alabama v. Texas, 347 U.S. 272 (1954) ....cccccossssessscccssssnsesssssesenssees 9

Ginsberg & Sons v. Popkin, 285 U.S. 204 (1932) ......-sssessesessseseeeees 12

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974)...,..c.ssseseseseseees 12

Train v. Colorado Public Interest Research Group, Inc., 426 U.S.

1 (1976) .....scscscscsccssssscscccccerseesesercoseesenseessnsesacasssnsesessesesscacncesesssenees 10

Udall v. Tallman, 380 U.S. 1 (1965 )..........cccccscessseeseeeseeeeeeessenenenes 5, 13

United States v. Zazove, 334 U.S. 602 (1948) ........ccecseesseeeteeeeeeees 10

Zuber v. Allen, 396 U.S. 168 (1969) 00... cc cccccsseesseeeeeteeeeteeeeeeeeees 13

STATUTES

Act of May 14, 1947, ch. 83, 61 Stat. 119... seeesesesesssesesenenenenees 3

Alaska Native Claims Settlement Act of 1971, Pub. L. No.

92-203, Section 9(d), 85 Stat. 695, 43 U.S.C. § 1608(d) ...6, 12, 14

Alaska Statehood Act of 1958, Pub. L. No. 85-508, 72 Stat. 339,

43 US.C. note prec. § 21, 0... cssccssesseseeseceneeeseesessessssesenenseneenens 5

Section 6( 1), 72 Stat. 343 ........ccscsecssesseeeeseeesenseeseessesseenseeeneenes 5

Section 28( b), 72 Stat. 351 uu... csscssesseereeneseseseserseeessesseseneenees 5

Federal Land Policy and Management Act of 1976, Section

317( a), 90 Stat. 2770.......ccsccssssesesescssssenenseeneescssesssseseseeeessenenenes 8, 12

General Appropriation Act of 1951, 64 Stat. 595, 693-694.............. 4

Mineral Leasing Act of 1920, ch. 85, Section 35, 41 Stat. 450, 30

RT BF vccssncctecsscsivesnsennnssnenislechintinate 3, 4, 5, 6, 7, 8, 10, 12, 13, 14

Mineral Leasing Act for Acquired Lands of 1947, ch. 513, 61 Stat.

913, 30 U.S.C. 88 351 ef S€q. .......cccssssscescccsrcersersnsersecsccsscsssssesees 4,14

Section 3, 61 Stat. 914, 30 U.S.C. § 352 .......eeeseeteseeeteeeneeneeees 4

Section 6, 61 Stat. 915, 30 U.S.C. § 355 .......ceesesseeeseeseseeeees %2

Public Law No. 85-88, Section 2(g), 71 Stat. 282..........:csccseeeseeneees 3

Public Law No. 88-523, 78 Stat. 701 ...............cscccssessssssensseseseseenees 6

Public Law No. 95-469, Section 1(c), 92 Stat. 1319.........ccceeeeeees 8

Wildlife Refuge Revenue Sharing Act of 1935, ch. 261, Section

401, 49 Stat. 383, 16 U.S.C. § 715s.......4, 5, 6, 7, 8, 9, 10, 11, 13, 14

ALASKA CONSTITUTION PAGE

pS PROPOR RN TE LET ET a ERENT NU LT is fs 7

MISCELLANEOUS AUTHORITIES

Exec. Order No. 8979, 6 Fed. Reg. 6471 (1941) w.occccccececececeees 5

Cong. Opinion B-24 128, 21 Comp. Gen. 873 .......ccccccccccsecescescesees 4

Fe I GID. FEF vnseiscsnisicennnandeiinetaauactinenciieabieeaastcessaleiataatiaeaamuaae 7

H.R. Rep. No. 1753, 88th Cong. 2d Sess. (1964) .o..c.cccceecceeees 10, 11

S. Rep. No. 1096, 88th Cong., 2d Sess. (1964) ....c.ccccccccsscesscecccesees 1]

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

NOS. 78-1890 and A-949

Ceci, D. ANDRUS, SECRETARY OF THE INTERIOR, ET AL., AND

KENAI PENINSULA BOROUGH,

Petitioners,

ST .TE OF ALASKA,

Respondent.

BRIEF IN OPPOSITION TO PETITIONS FOR A

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

The State of Alaska opposes the petitions for a writ of

certiorari directed to the United States Court of Appeals for the

Ninth Circuit filed by petitioners Cecil D. Andrus, Secretary of

the Interior, et al., (hereafter “the Federal Petitioners”), and

the Kenai Peninsula Borough.

OPINIONS BELOW

The opinion of the court of appeals is reported at 611 F.2d

1210 (9th Cir. 1980). The opinion of the district court is

reported at 436 F. Supp. 288 (D. Alaska 1977).

2

JURISDICTION

Respondent State of Alaska accepts the petitioners’ state-

ments of jurisdiction.

QUESTION PRESENTED

Whether revenues from federal oil and gas leases on

reserved public lands in the Kenai National Moose Range

(part of the National Wildlife Refuge System) are to be

distributed according to the formula established by Section 35

of the Mineral Leasing Act of 1920, 30 U.S.C. § 191, which

provides that 90 percent of such revenues are to be paid to the

State of Alaska and 10 percent are to be covered into the

United States Treasury, or pursuant to the formula established

by the Wildlife Refuge Revenue Sharing Act, 16 U.S.C § 715s,

which allocates 25 percent of the revenues it governs to the

counties in which wildlife refuges are located and reserves 75

percent for federal purposes related to the Act.

STATUTES INVOLVED

1. Section 35 of the Mineral Leasing Act of 1920, 30

U.S.C. § 191.

2. The Wildlife Refuge Revenue Sharing Act of 1935, as

amended, 16 U.S.C. § 715s.

3. Sections 3 and 6 of the Mineral Leasing Act for

Acquired Lands, 30 U.S.C. §§ 352 and 355.

4. Sections 6(k) and 28(b) of the Alaska Statehood Act

of 1958, 43 U.S.C. note prec. § 21.

5. Section 9(d) of the Alaska Native Claims Settlement

Act of 1971, 43 U.S.C. § 1608(d).

3

STATEMENT OF THE CASE

In the Mineral Leasing Act of 1920, 30 U.S.C. § § 181 ef

seq., the United States Congress authorized the Secretary of the

Interior to lease certain federally-owned mineral deposits,

including oil and gas deposits. Section 35 of the Act, 30 U.S.C.

§ 191, as originally enacted, provided that the revenue received

from such leases was to be paid into the United States Treasury

for periodic distribution. The State within which the land was

located was to receive 37‘44%, the Federal Reclamation Fund

was to receive 524%, and the Treasury was to receive 10%.

The Territory of Alaska was excluded from this distribution

scheme.

In 1947, Congress passed two laws dealing with the

distribution of revenues derived from mineral leases on

federally-owned lands, distinguishing between public lands and

acquired lands.1 The Act of May 27, 1947, 61 Stat. 119, dealt

with revenues from public lands. It rewrote Section 35 of the

Mineral Leasing Act, 30 U.S.C. § 191, and directed that the

Territory of Alaska, as well as the several States, was to receive

a 37%% share of mineral leasing revenues from public lands

within its borders.2

'“Public lands” are lands of the public domain which have

never been in state or private ownership. They are distinguished from

“acquired lands”, which are lands acquired by the United States from

a state or citizen through purchase or grant. See 611 F.2d at 211, n.2.

2 Section 2(g) of the Act of July 10, 1957, 71 Stat. 282, amended

Section 35 of the Mineral Leasing Act, 30 U.S.C. § 191, to provide

that the Territory of Alaska would receive an additional 524%%% share

of mineral lease revenues from public lands in Alaska, over and above

the 37%% share granted by the 1947 amendment. This was in

recognition of the fact that the Territory of Alaska was not covered by

the Federal Reclamation Fund which received 52%% of revenues

from mineral leases in public lands in the States. As a result of this

amendment, the Territory of Alaska became entitled to 90% of all

revenues derived from mineral leases on public lands in Alaska.

4

The Mineral Leasing Act for Acquired Lands of 1947, 30

U.S.C. §§ 351 et seqg., addressed mineral leases on federally-

owned acquired tands. Section 3 of the Act, 30 U.S.C. § 352,

authorized the leasing of minerals (including oil and gas) on

such lands if the head of the executive department having

jurisdiction over the lands consented to such leasing. Section 6

of the Act, 30 U.S.C. § 355, directed that the resultant revenues

be distributed in the same manner as other revenues from the

leased lands were distributed.

With respect to revenues from lands within wildlife ref-

uges, Section 401 of the Act of June 15, 1935, 49 Stat. 378, 383,

16 U.S.C. § 715s, provided that 25% of non-mineral receipts

from such lands? were to be distributed to the county or

counties in which the refuge was situated, with the remaining

75% deposited in the United States Treasury.‘ Accordingly,

under Section 3 of the Mineral Leasing Act for Acquired Lands,

30 U.S.C. § 355, oil and gas revenues from acquired lands in

wildlife tefuges also were to be distributed 25% to the counties

in which the lands were located and 75% to the federal

government. Oil and gas revenues from public lands in wildlife

refuges, however, remained subject to distribution under the

Mineral Leasing Act, 30 U.S.C. § 191: 37%% to the State within

which the refuge was located, 52%% to the Federal Reclama-

tion Fund, 10% to the federal government. As a result of the

1947 amendment to 30 U.S.C. § 191, the Territory of Alaska

was entitled to 374% of the revenues from public lands within

wildlife refuges in the Territory; the 1957 amendment increased

this share to 90%.

3 The Comptroller General of the United States ruled in 1942

that revenue from oil and gas leases on lands within wildlife refuges

was not subject to distribution under 16 U.S.C. § 715s. Cong. Opinion

B-24 128, 21 Comp. Gen. 873 (R. 982).

4 With the enactment of the General Appropriation Act of 1951,

64 Stat. 595, this 75% share was made available for the management

of refuges.

5

Section 6(k) of the Alaska Statehood Act of 1958, 72 Stat.

343, 43 U.S.C. note prec. § 21, provided that the provisions of

the Statehood Act repealing portions of certain existing statutes

were not to deprive the new State of Alaska of rights to

revenues previously enjoyed by the Territory under the Mineral

Leasing Act. Section 28(b) of the Statehood Act, 72 Stat. 351,

amended Section 35 of the Mineral Leasing Act of 1920, 30

U.S.C. § 191, by changing the term “Territory” to “State” in

the clause that allocated to Alaska the 524% share of mineral

revenues from public lands which otherwise would go to the

Federal Reclamation Fund.

Summarizing, as of the date the State of Alaska was

admitted to the Union, federal oil and gas lease revenues from

lands within wildlife refuges in Alaska were to be distributed in

one of two ways, depending on the nature of the lands from

which the revenues were realized. If they were acquired lands,

the revenues were to be distributed 25% to the county in which

the lands were situated and 75% to the federal government

pursuant to 30 U.S.C. § 355 and its incorporation of the 16

U.S.C. § 715s revenue distribution formula for non-mineral

revenues from lands in wildlife refuges. If they were reserved

public lands‘, the revenues were to be distributed 90% to the

State of Alaska and 10% to the United States Treasury pursuant

to 30 U.S.C. § 191.

The Kenai National Moose Range was established in 1941

when approximately two million acres of “public and nonpublic

land” on the Kenai Peninsula in Alaska were withdrawn and

reserved for use as a refuge and breeding ground for moose by

Exec. Order No. 8979, 6 Fed. Reg. 6471 (1941). Federal oil

and gas leases were first issued on the reserved public lands in

the Range® in 1957 and 1958. R. 223, 930.7

5“Reserved public lands” are public lands which have been set

apart and reserved for a specific purpose. See n.1, supra.

§In Udall v. Tallman, 380 U.S. 1 (1965), this Court held that

Exec. Order No. 8979 did not withdraw public lands in the range from

federal oil and gas leasing.

ies ” refers to the record filed in the court of appeals.

6

The Kenai National Moose Range is the only wildlife

refuge in Alaska generating oil and gas revenues.® Federal

Petitioners’ petition at 6. Oil and gas revenues from reserved

public lands in wildlife refuges in states other than Alaska are

de minimus. Id., n.3, and Affidavit of Lynn A. Greenwalt,

Director of the United States Fish and Wildlife Service (printed

as an appendix to the Federal Petitioners’ brief in the court of

appeals at 41-43).

The seeds of the present dispute were sown in 1964 when

Congress passed Public Law 88-523, 78 Stat. 701, which

amended the Wildlife Refuge Revenue Sharing Act, 16 U.S.C.

§ 715s, in two ways. First, separate distribution schemes were

established for revenues from “reserved public lands” and

those from “areas . . . acquired in fee by the United States [i.e.,

acquired lands].” Second, without discussion in the legislative

history, the word “minerals” was added to the list of revenue

sources subject to distribution under the statute.

Following the 1964 amendment, the Department of the

Interior continued to distribute revenues from the reserved

public lands of the Kenai National Moose Range pursuant to

Section 35 of the Mineral Leasing Act of 1920, 30 U.S.C. § 191.

R. 297. The federal official making the decision to continue

that practice was the Secretary of the Interior. R. 231.

In 1971, in Section 9(d) of the Alaska Native Claims

Settlement Act of 1971, 85 Stat. 695, 43 U.S.C. § 1608(d),

Congress again directed that all mineral revenues from public

8In response to the State of Alaska’s discovery requests, the

Federal Petitioners responded that records of revenue before 1966

were “not readily available.” R. 229. Between 1966 and 1976,

revenues totaled approximately $57,000,000. R. 957. Since 1976,

when the present suits were filed, revenues from those leases have

been placed in an escrow account pending the outcome of this

litigation. R. 230. That account now contains between seventeen and

eighteen million dollars. Federal Petitioners’ petition, pp. 5, 17-18.

7

lands in Alaska were to be distributed as provided in the Alaska

Statehood Act (i.e., pursuant to 30 U.S.C. § 191, 90% to the

State of Alaska and 10% to the United States Treasury ).

In 1975, eleven years after the 1964 amendment to the

Wildlife Refuge Revenue Sharing Act, 16 U.S.C § 715s, the

Director of the Fish and Wildlife Service asked the Solicitor of

the Department of the Interior whether the 1964 amendment to

16 U.S.C. § 715s required that oil and gas revenues from

reserved public lands in wildlife refuges be distributed pursuant

to that statute and not the Mineral Leasing Act of 1920, 30

U.S.C § 191; the Solicitor opined that it did. R. 179. The

Comptroller General of the United States concurred in the

Solicitor’s opinion. 55 Comp. Gen. 117 (R. 185). In response

to a request by the State of Alaska for reconsideration (R. 190),

the Solicitor affirmed his earlier decision. R. 211.

Shortly thereafter, the State of Alaska sued the Secretary of

the Interior, the Comptroller General, and the Secretary of the

Treasury, seeking a declaration that distribution of the oil and

gas revenues from the reserved public lands of the Kenai

National Moose Range was governed by Section 35 of the

Mineral Leasing Act of 1920, 30 U.S.C § 191, and resumption

of the payments of 90% of such revenues to the state which had

been suspended on the basis of Solicitor’s and Comptroller

General’s opinions. R. 1-9. Kenai Peninsula Borough, the

county-type political subdivision® within which the Kenai Na-

tional Moose Range is located, also sued the Secretary of the

Interior seeking a declaration that 16 U.S.C. § 715s controls the

distribution of oil and gas revenues from the reserved public

lands within the Range and for an order requiring the Secretary

to pay the borough 25% of such revenues, to account for past

payments made to the State of Alaska, and to recover such past

payments for the borough’s benefit. R. 14-23.

® Alaska has no political subdivisions known as “counties.” The

Alaska analogue is the “borough.” See Alaska Const., art. X, and R.

854.

8

At-virtually the same time, Congress enacted Section

317(a) of the Federal Land Policy and Management Act of

1976, 90 Stat. 2770, a comprehensive re-enactment of 30 U.S.C.

§ 191 which increased to 50% the share of mineral revenue

from public lands received by other States and re-enacted

Alaska’s 90% share of such revenues.

On August 18, 1977, the district court granted summary

judgment for the State of Alaska, holding that Section 35 of the

Mineral Leasing Act of 1920, 30 U.S.C. § 191, controls the

distribution of oil and gas revenues from the reserved public

lands within the Kenai National Moose Range both before and

after the 1964 amendment to the Wildlife Refuge Revenue

Sharing Act, 16 U.S.C. § 715s, and that the latter statute

controls distribution of mineral revenues derived from acquired

lands in wildlife refuges. 436 F. Supp. 288 (D. Alaska 1977).

On February 5, 1980, the court of appeals affirmed the decision

of the district court. 611 F.2d 1210 (9th Cir. 1980).

The Wildlife Refuge Revenue Sharing Act, 16 U.S.C.

§ 715s, was substantially revised in 1978 when Congress

enacted Section 1(a) of Public Law 95-469, 92 Stat. 1319.

During deliberations on the bili, the House of Representatives

proposed making it applicable to oil and gas revenues from

reserved public lands, as well as acquired lands, in wildlife

refuges. However, the Senate Committee on Environment and

Public Works deleted that proposed amendment on the ground

that it was “inappropriate to legislate on this matter pending a

determination by the court.” S. Rep. No. 95-1174, 95th Cong.

2d Sess., 4, reprinted in [1978] U.S. Code Cong. & Admin.

News, pp. 2979, 2982.

REASONS FOR DENYING THE WRIT

1. The issue in this case is too narrow to warrant review

by this Court on certiorari. As the Federal Petitioners acknowl-

edge, the Kenai National Moose Range is the only wildlife

9

refuge in Alaska currently generating oil and gas revenues, and

oil and gas revenues from reserved public lands in wildlife

refuges in other states are de minimus. Federal Petitioners’

petition,

p. 6 and n.3. Accordingly, the decision in this case will have no

application beyond the Kenai National Moose Range and the

parties to this action. |

Both the Federal Petitioners and petitioner Kenai Penin-

sula Borough speculate that other wildlife refuges in Alaska

may have significant oil and gas revenue potential. Federal

Petitioners’ petition, pp. 6, 18; Kenai Peninsula Borough’s

petition, p. 8. Accordingly, they hypothesize, the decision in

this case may affect distribution of revenues which may be

realized from those lands at some unspecified time in the future.

Id. Because of that doubly speculative possibility, they urge

this Court to exercise its discretion and grant review. However,

such a speculative possibility does not appear to be one of the

“special and important reasons” for granting review or writ of

certiorari contemplated by Supreme Court Rule 19.1.

Moreover, on several occasions this Court has stated that

determinations regarding the administration of public lands

should be made by Congress and not by the courts. See, e.g.,

Alabama v. Texas, 347 U.S. 272, 273-274 (1954), and cases

cited. Had this issue not been in litigation in the courts below, it

is likely that Congress already would have resolved the matter.

The question of the meaning of “minerals” in 16 U.S.C. § 715s

and its application to mineral lease revenues on reserved public

lands in wildlife refuges was before Congress in 1978. How-

ever, because of this litigation, Congress deferred resolution of

the issue. See 612 F.2d at 1214 n.6.

Nor should the Court be persuaded to grant the writ on the

basis that “substantial sums” (Federal Petitioners’ petition,

p. 17) or “significant amounts of revenue” (Kenai Peninsula

Borough’s petition, p. 7) are involved. The total revenue from

federal oil and gas leases on the Kenai National Moose Range

between 1966 and 1976 was $57 million. R. 949. Since 1976,

10

an additional $17-18 million have been escrowed pending this

litigation. Federal Petitioners’ petition, pp. 5, 17-18. These

amounts should be contrasted to the amounts involved in cases

such as United States v. Zazove, 334 U.S. 602, 613-614, (1948)

(“billions of dollars”). While not insubstantial, the amounts

involved in this case do not justify review by this Court.

2. The court of appeals fully considered and correctly

decided the question presented. As the court of appeals noted,

612 F.2d at 1212, the parties agreed that there is an irreconcil-

able conflict between the revenue distribution provisions of the

Wildlife Refuge Revenue Sharing Act, 16 U.S.C. § 715s, and

the Mineral Leasing Act of 1920, 30 U.S.C. § 191.10 To resolve

the conflict, the court of appeals undertook an exhaustive

analysis of the legislative history of the 1964 amendment to 16

U.S.C § 715s in an effort to ascertain the underlying congres-

sional intent, as it was required to do under the cases cited in its

opinion at 612 F.2d at 1213. Following that exhaustive

analysis, the court of appeals concluded that, although the

legislative history of those amendments did not conclusively

resolve the issue, the few items of legislative history which

exist’! indicate that Congress intended no change in the pre-

existing scheme under which mineral revenues from reserved

public lands in wildlife refuges were distributed pursuant to 30

U.S.C. § 191. 612 F.2d at 1214 n.7. Given these facts, its

decision affirming the district court’s decision was correct and

should not be disturbed.

10 Accordingly, the reliance of both the Federal Petitioners’ peti-

tion (p. 14) and petitioner Kenai Peninsula Borough’s petition (pp. 9-

10) on the so-called “plain meeting rule” of statutory construction is

misplaced. Train v. Colorado Public Interest Research Group, Inc.,

426 U.S. 1, 9-10 (1976).

11 Both the House and Senate reports on the bill stated that the

1963 payments to counties from the Kenai National Moose Range

under 16 U.S.C. § 715s totalled $1,768, and would have been

identical had the 1964 amendment been in effect in 1963. H.R. Rep.

(Footnote continued on following page)

3. Review of the decision below necessarily will require an

exhaustive review of the legislative history of the 1964 amend-

ment to 16 U.S.C. § 715s, a fact-finding inquiry already per-

formed by the courts below and found by the court of appeals

to be inconclusive on the issue of congressional intent. 611 F.2d

1214.12 Further review of the legislative history by this Court

is unwarranted.

4. Both the Federal Petitioners and petitioner Kenai

Peninsula Borough argue that this case presents important

questions of statutory construction. Federal Petitioners’ peti-

tion, pp. 15-16; Kenai Peninsula Borough’s petition, pp. 8-10.

However, at bottom, the process of statutory construction

(Footnote continued from preceding page)

No. 1753, 88th Cong., 2d Sess. 3 (1964) (hereafter “House Report”),

R. 590, 592; S. Rep. No. 1096, 88th Cong., 2d Sess. 13 (1964)

(hereafter “Senate Report”), R. 614, 626. Had Congress intended to

make the oil and gas revenues from the Range subject to distrioution

under the amended statute, that figure would have been increased by

almost $1 million, 25% of oil and gas revenues which totalled

$3,813,290 in 1964 (see 45 of Affidavit of Lynn A. Greenwalt,

Director of the United States Fish and Wildlife Service, published as

an appendix to the Federal Petitioners’ brief before the court of

appeals at pp. 41-43. Under the amendment, although some counties

would get more, “the increase [would] only be equitable and there

[would] be no windfall or bonanza.” Senate Report, p.3; R. 616.

Had Congress intended the amendment to affect oil and gas revenues

from the Range, the payments to counties from the Kenai National

Moose Range (i.e., to the Kenai Peninsula Borough) would have

included an additional “windfall or bonanza” of $953,322 over and

above the $1,768 listed in the reports. Furthermore, Congress

expected that the wildlife refuge fund would decrease if the amend-

ment was adopted. House Report, p. 12; R. 601. However, if

Congress had intended the amendment to reach oil and gas revenues

from the Range, the fund would have been increased by almost $3

million (75% of the $3,813,290 in 1964 revenues ).

12 Respondent State of Alaska believes that the legislative history

of the 1964 amendment demonstrates beyond question that Congress

intended no change in the pre-1964 practice.

12

(including the use of the canons of statutory construction urged

by petitioners) is to ascertain the intent of Congress, which is

what both the district court and the court of appeals did here.

Furthermore, canons of statutory construction not cited by

petitioners support the decision reached by the court below.

For example, this Court has stated that “[s]pecific terms

prevail over the general in the same or another statute which

otherwise might be controlling.” Ginsberg & Sons v. Popkin,

285 U.S. 204, 208 (1932). Section 35 of the Mineral Leasing

Act of 1920, 30 U.S.C. § 191, specifically provides that the State

of Alaska is to receive 90% of money received from public lands

in Alaska. This distribution scheme was reaffirmed when

Congress enacted Section 9(d) of the Alaska Native Claims

Settlement Act, 43 U.S.C. § 1608(d), which specifically di-

rected that all mineral revenues from public lands in Alaska

were to be distributed as provided in the Alaska Statehood Act,

which in turn required that they be distributed pursuant to 30

U.S.C. § 191.

In addition, Section 317(a) of the Federal Land Policy

and Management Act of 1976, 90 Stat. 2770, was a com-

prehensive re-enactment of 30 U.S.C. § 191. It increased the

share of mineral revenues from public lands which all states

other than Alaska were to receive from 374% to 50%, and

specifically re-enacted Alaska’s 90% share of “[a]ll money

received from sales, bonuses, royalties, and rentals of the public

lands.” This is “persuasive evidence” that Congress intended

the pre-existing revenue distribution scheme to be continued.

NLRB v. Bell Aerospace Co., 416 U.S. 267, 275 (1974), and

cases cited.

Finally, the doctrine of contemporaneous construction

supports the decisions below.'3 Following the effective date of

13 The Federal Petitioners argued in the court of appeals that the

Department of the Interior’s new interpretation in 1975 is entitled to

the customary deference shown to agency interpretation. However,

the court of appeals properly showed less deference to the new

interpretation than it gave to the contemporaneous 1964 inter-

pretation. See 612 F.2d at 1214-1215 n.8.

13

the 1964 amendment to 16 U.S.C. § 715s, the Secretary of the

Interior determined that the oil and gas revenues from the

Kenai National Moose Range should be governed by 30 U.S.C.

§ 191 and, not by amended 16 U.S.C. § 715s. R. 231. As this

Court stated in Udall v. Tallman, supra, at 16:

When faced with the problem of statutory construction,

this Court shows great deference to the interpretation given

the statute by the officers or agency charged with its

administration. ‘To sustain the Commission’s application

of this statutory term, we need not find that its construction

is the only reasonable one, or even that it is the result we

would have reached had the question arisen in the first

instance in judicial proceedings.’ Particularly is this re-

spect due when the administrative practice at stake ‘in-

volves a contemporaneous construction of a statute by the

men charged with the responsibility of setting its machin-

ery in motion, of making the parts work efficiently and

smoothly while they are yet untried and new.’

(Citations omitted.) The 1964 amendments to 16 USC.

§ 715s charged the Secretary of the Interior with receiving and

distributing the wildlife refuge receipts subject to that statute.

He also was responsible for administering 30 U.S.C. § 191.

Moreover, a contemporaneous administrative construction

“carries most weight when the adminstrators have Participated

in drafting and directly made known their views to Congress in

committee hearings.” Zuber v. Allen, 396 USS. 168, 192

(1969) (citations omitted). Not only did Department of the

Interior officials directly make their views on the proposed

amendment to 16 U.S.C. § 715s known to Congress on several

occasions, see R. 389, 390, 399, 410, 460, 463, 485, 487, 547,

572, 580, 602, 608, 611, 636, 637, 686, 693, 708, 735, 757, 782,

790, 794, 807, 817, and 832, they made frequent suggestions

regarding possible amendments. See R. 390, 399, 410, 460,

487, 572, 580, 602, 637, 782, and 807.

14

Both the district court and the court of appeals have

concluded that the Secretary’s contemporaneous construction

was correct, and it should not be reviewed by this court on a

writ of certiorari.

5. The construction of 16 U.S.C § 715s urged by petition-

ers would be manifestly unfair to Alaska Natives. Under

Section 9(d) of the Alaska Native Claims Settlement Act of

1971, 43 U.S.C § 1608(d), 2% of the gross revenues from

“minerals in public lands in Alaska” are to be paid into the

Alaska Native Fund. Between 1972, the first year payments

were made to the fund, and 1976, gross Mineral Leasing Act

revenues from public lands in Alaska totalled $37,237,933.20,

with the fund receiving $4,332,184.39. R. 230.14 Of those

revenues, $28,369,204.84 (76%) was attributable to federal oil

and gas leases in the Kenai National Moose Range. R. 957. If

those revenues are not to be distributed as provided in the

Alaska Statehood Act (i.e., pursuant to 30 U.S.C. § 191), they

would be taken out of the coverage of Section 9(d) the Alaska

Native Claims Settlement Act as well, and contributions to the

Alaska Native Fund would be reduced accordingly. In addi-

tion, the fund could be required to refund all moneys previously

received which are attributable to Kenai National Moose

Range oil and gas receipts.

6. There is an independent ground on which the decisions

below must be affirmed. The 30 U.S.C § 191 distribution

formula for revenues from public lands in Alaska (which

include reserved public lands in wildlife refuges) is required by

the Alaska Statehood Act, a solemn compact between the

United States and Alaska which formed the basis for Alaska’s

admission to the Union. Any post-statehood deviation from

that scheme (such as the construction of 16 U.S.C § 715s urged

by petitioners here) would impermissibly violate that compact.

14 The figures showing payment to the Alaska Native Fund do not

equal 2% of the gross revenues shown. No explanation of this

discrepancy is given.

15

CONCLUSION

For the foregoing reasons, the petitions for a writ of

certiorari should be denied.

Respectfully submitted this day of July, 1980.

WILSON L. CoNDON

Attorney General

By:

G. THOMAS KOESTER

Assistant Attorney General