# Opposition — Watt v. Alaska

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 259

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2461%3A3. Public record. Not legal advice.