Petition for Writ of Certiorari — Morton v. Wilderness Society

Supreme Court brief1973

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Sci hedaman latacasienncontardieabaelepaatesietaadecahaieaasAbadiial 1

Fiabe tabi css adasesa andinschomaaprcancall ecatnias 2

EEE RIOR TI IT 2

I sada lap cen caceincaleaksate aaa ane osha 3

ita elicad laceie pes Ninian peranaacaracaanlale 5

sa cca prea laomeenaearesateeninacenaie 6

B. Inter-disciplinary study of the proposed

pipeline under the National Environ-

EEA 8

C. The decision of the Secretary of the

alae uae et 11

D. The instant litigation.________:_________ 14

E. The decision of the court of ia eee 16

_ Reasons for granting the writ__________________- 20

CE RTE AR ACER NE RIN IR ET 28

_ Appendix A, opinion of the court of appeals- - - ---- la

‘Appendix B, judgment of the court of appeals - - - - - 139a

Appendix C, statement of reasons for approval by

the Secretary of the Interior_________________- 143a

Appendix D, final order and opinion of the district

Ee oer re rare esheets TOL 179a

Appendix E, findings of fact and conclusions of

: law of the district court in connection with the

issuance of the preliminary injunction _-------_- 183a

CITATIONS

Statutes:

Alaska Native Claims Settlement Act, 85

re inc cies cnsrsnsarenenceniece 13, 15, 24

Mineral Leasing Act of 1920, Section 28, 30

Liconcap-inciiesstananbaniebecaassineamasaScceataatan samen 2,

OE 6S PELE LT RE RTT IT 2 SBP apg

Statutes—Continued

National Enviromental Policy Act of 1969,

Uae See ee...

Section 102, 42 U.S.C. 4332_.....-.________

Section 102(2)(C), 42 U.S.C. 4832(2)(C)_____

Section 102(2)(D), 42 U.S.C. 4332(2)(D)____

ty ic cucbenwddacoanmiuinianucs:

49 USC. 211, et seq.

Miscellaneous:

Co eS ei

<.2.m. See a~..--................

43 C.F.R. 2920.3(a)(1)_...---------------- 19, 20

ee I ok cteniea deuce cenecnociece

i ea

H. Rep. No. 92-746, 92d Cong., Ist Sess_____

Hearings before the House Committee on In-

terior and Insular Affairs on “Alaska Land

Freeze—Trans-Alaska Pipeline System,”

Ie Cs WIE ei i ccemninn

Hearings before the Subcommittee on Fisher-

ies and Wildlife Conservation of the House

Committee on Merchant Marine and Fish-

eries on the Alaska Pipeline, 91st Cong., Ist

Hearing before the Special Subcommittee on

Legislative Oversight of the Senate Com-

mittee on Interior and Insular Affairs on

Oversight of Oil Development Activities in

Alaska, 91st Cong., Ist Sess___-.____-----

Hearings before the Senate Committee on In-

terior and Insular Affairs on the Status of

the Proposed Trans-Alaska Pipeline, 91st

ee ee ene

Jn the Supreme Court of the Dnited States

OcTOBER TERM, 1972

No.

Rogers C. B. Morton, SECRETARY OF THE INTERIOR,

PETITIONER

THE WILDERNESS SOCIETY, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

The Solicitor General, on behalf of the Secretary of

the Interior, petitions for a writ of certiorari to re-

view the judgment of the United States Court of Ap-

peals for the District of Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

pp. la-137a) is not yet reported. The final order and

opinion of the district court (App. D, infra, pp. 179a-

182a) are not reported. The findings of fact and conclu-

sions of law of the district court in connection with its

earlier issuance of a preliminary injunction (App. E,

infra, pp. 183a—185a) are reported at 324 F. Supp. 422.

The statement of reasons by the Secretary of the In-

(1)

RR Ra

OTF AEN TENE ARUN EEL NR Ey MHP ar amet aen

terior for issuing the permits for the proposed trans.

Alaska pipeline (App. C, infra, pp. 143a-177a) is not

reported.

JURISDICTION

The judgment of the court of appeals (App. B, in-

fra, pp. 139a-141a) was entered on February 9, 1973,

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the proviso to 30 U.S.C. 185 that “no

right-of-way shall hereafter be granted over [fed-

eral] lands for the transportation of oil’’ except un-

der and subject to the limitations of that Section—in-

cluding the limitation of a right-of-way for a pipe-

line for the transportation of oil to the width of the

pipeline plus twenty-five feet on each side of the pipe-

line—precludes the Secretary of the Interior from

issuing temporary, revocable special land use permits

for the use of additional space for the construction

of a pipeline.

2. Whether, epart from the width limitation of 30

U.S.C. 185, special land use permits for the construc-

tion of the trans-Alaska pipeline are authorized under

regulations of the Department of the Interior.

3. Whether the final impact statement on the en-

vironmental effects of the trans-Alaska pipeline com-

plied with Section 102(2)(C) of the National En-

vironmental Policy Act of 1969, 42 U.S.C. 4332(2)

(C).

a Sp iN D0 a RIOR GO Bi IOUT LS A NN — aetna :

7 ‘ COWEN RCT CEES hE AMO te

STATUTES INVOLVED

Section 28 of the Mineral Leasing Act of 1920,

99 U.S.C. 185, provides in pertinent part:

Rights-of-way through the public lands, in-

eluding the forest reserves of the United States,

may be granted by the Secretary of the In-

terior for pipeline purposes for the transporta-

tion of oil or natural gas to any applicant pos-

sessing the qualifications provided in section

181 of this title, to the extent of the ground

occupied by the said pipe line and twenty-five

feet on each side of the same under such regu-

lations and conditions as to survey, location,

application, and use as may be prescribed by

the Secretary of the Interior * * *, Provided

further, That no right-of-way shall hereafter

be granted over said lands for the transporta-

tion of oil or natural gas except under and sub-

ject to the provisions, limitations, and condi-

tions of this section. Failure to comply with

the provisions of this section or the regulations

and conditions prescribed by the Secretary of

the Interior shall be ground for forfeiture of

the grant by the United States district court for

the district in which the property, or some part

thereof, is located in an appropriate proceed-

ing.

Section 102 of the National Environmental Policy

Act of 1969, 42 U.S.C. 4332, provides in pertinent

part:

The Congress authorizes and directs that, to

the fullest extent possible: (1) the policies,

regulations, and public laws of the United

;

€

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io as pp Z. - t

SALES. PETE BET IIIT

~ a. Sa ee

States shall be interpreted and administered jn

accordance with the policies set forth in this

chapter, and (2) all agencies of the Federal

Government shall—

- * 7 + *

port on proposals for legislation and other

major Federal actions significantly affecting the

quality of the human environment, a detailed

statement by the responsible official on—

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be im-

plemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-

term uses of man’s environment and the main-

tenance and enhancement of long-term produc-

tivity, and

(v) any irreversible and irretrievable com-

mitments of resources which would be involved

in the proposed action should it be imple-

mented.

Prior to making any detailed statement, the

responsible Federal official shall consult with

and obtain the comments of any Federal

agency which has jurisdiction by law or spe-

cial expertise with respect to any environmen-

tal impact involved. Copies of such state-

ment and the comments and views of the appro-

priate Federal, State, and local agencies, which

are authorized to develop and enforce environ-

mental standards, shall be made available to

the President, the Council on Environmental

_-_ see <2 ART Ph A SORE INE LGB ARIEL MLD ELE LBEL AS PML BLE LEI ELIA LLB ELE AAO

Quality and to the public as provided by sec-

tion 552 of Title 5, and shall accompany the

proposal through the existing agency review

TOCESSES ;

(D) study, develop, and describe appropriate

alternatives to recommended courses of action

in any proposal which involves unresolved con-

flicts concerning alternative uses of available

resources ;

* * * a *

STATEMENT

This case involves efforts of the respondents to en-

join the Secretary of the Interior from issuing the

necessary permits and rights-of-way for the construc-

tion and operation of an oil pipeline across federal

lands in Alaska for the transportation of oil from

Prudhoe Bay on the North Slope of Alaska to the

Port of Valdez. The court of appeals, sitting en bane,

ordered the district court to enjoin the Secretary from

issuing the necessary permits for the construction of

the pipeline on the ground that the proposed permits

would allow the use of federal lands in excess of the

maximum allowable width for a pipeline right-of-way

under Section 28 of the Mineral Leasing Act, 30

US.Cc. 185 (App. A, infra, pp. 13a-62a). The court

of appeals refused to decide the issue whether the envi-

ronmental impact statement prepared by the Depart-

ment of the Interior in connection with the proposed

pipeline satisfied the requirements of Section 102 of the

National Environmental Policy Act of 1969, 42 USC.

4332 (App. A, infra, pp. 86a-93a).

A. BACKGROUND

In 1968, a major oil discovery was made at Pryg.

hoe Bay on the North Slope of Alaska. Following the

discovery, three oil companies developed plans to

transport the oil by a 789-mile pipeline across Alaska

from Prudhoe Bay to the Port of Valdez from which

it would be shipped to ports along the West Coast of

the United States. These companies, along with four

other oil companies, eventually formed the Alyeska

Pipeline Service Company (“Alyeska”’) to construct

and operate the pipeline.* The ultimate capacity of the

pipeline is expected to be 2,000,000 barrels per day

(App. A, infra, pp. 8a—9a).

Because 641 miles of the proposed pipeline would

eross lands owned by the United States, the pipeline

could not be constructed without the approval of the

Secretary of the Interior.* In June 1969, the oil com-

panies filed their initial applications for permission

to construct the pipeline over federal lands. Several

amendments were made to the applications over the

following 20 months. Alyeska ultimately sought (1) a

permanent, 54-foot right-of-way under Section 28 of

the Mineral Leasing Act of 1920, 30 U.S.C. 185, for

a 48-inch pipeline, (2) rights-of-ways for 10 pumping

*The seven owners of Alyeska are: Amerada Hess Corpora-

tion, ARCO Pipeline Company, Humble Pipeline Company,

Mobil Pipeline Company, Phillips Petroleum Company, Sohio

Pipeline Company and Union Oil Company of California

(App. C, infra, p. 1438).

? Within the Department of the Interior, the Bureau of

Land Management is charged with the responsibility of admin-

istering the public lands the proposed pipeline would cross.

stations along the pipeline, also under 30 U.S.C. 185,

(3) rights-of-way under 43 U.S.C. 961 for 26 com-

munications sites for a communications system to fa-

cilitate the operation of the pipeline, and (4) a tem-

porary, revocable special land use permit (hereafter

referred to as a “special permit’’), under 43 U.S.C.

1, 2, 1201, 1861-1364, 1411-1418 and 43 C.F.R. Part

9920, for the use of “such minimum amounts of land

under the jurisdiction of the Secretary of the Interior

as may be reasonably necessary” for the construction

of the pipeline (App. A, infra, pp. 9a—13a, 68a). In its

application for the special permit, Alyeska estimated

the amount of space it would need for construction

purposes and specifically acknowledged that the per-

mit “will remain at all times revocable at will by the

government, without cause or justification, and with-

out giving rise to any claim against the government

arising out of such revocation’’ (id. at 14a).

In addition to the authority sought by Alyeska, the

State of Alaska applied to the Secretary of the In-

terior for a right-of-way under 43 U.S.C. 932 for a

public highway to be constructed along about one-

half of the proposed pipeline route, for leases under

49 U.S.C. 211, et seq., for the construction of three

public airports along the pipeline route, and for a

series of free-use permits under 30 U.S.C. 601 for

gravel, to be used in the construction of the highway

and the airports. Through contracts with the State,

Alyeska has undertaken to construct the highway and

airports (id. at 12a). Of these various applications,

the court of appeals specifically barred the issuance of

ere 6 CUFT TAS UU lU re 6f a? Oe ore ee oe

only the revocable special permit sought by Alyeska

for the construction of the pipeline (App. A, infra,

pp. 13a-62a).

B. INTER-DISCIPLINARY STUDY OF THE PROPOSED PIPELINE UNDER

THE NATIONAL ENVIRONMENTAL POLICY ACT

In 1969, an inter-disciplinary federal task force,

composed of representatives from the Department of

the Interior and numerous other federal agencies, was

established to study the ramifications of the North

Slope oil discovery. Following the submission of the

applications for authority to construct a trans-Alaska

pipeline, the task force and the Department of the In-

terior began investigations into the feasibility of the

pipeline and the task force undertook the development

of stipulations governing the design and construction

of the pipeline to be included as conditions to any per-

mits or rights-of-way granted for the pipeline. In Au-

gust 1969, public hearings were conducted in Fair-

banks, Alaska, on the pipeline proposals (App. A,

infra, pp. 9a-10a; App. C, infra, pp. 143a-144a). Thus,

even before the National Environmental Policy Act of

1969 (“NEPA”’), 42 U.S.C. 4331, et seq., was enacted

on January 1, 1970, the Department of the Interior

was engaged in an interdisciplinary study of the feasi-

bility and environmental impact of the proposed

pipeline.

Section 102(2)(C) of NEPA, 42 U.S.C. 4332(2)

(C), directs each federal agency, after consultations

with other federal agencies, to prepare an environ-

mental impact statement with respect to any major

federal action “significantly affecting the quality of

the human environment.” The statement must describe

the environmental impact of the proposed action, the

ynavoidable adverse environmental effects of the pro-

posal, the alternatives to the proposal, the relation-

ship between the short and long term effects of the

project, and any irreversible and irretrievable com-

mitments of resources involved in the proposal. Sec-

tion 102(2)(D) directs federal agencies to “‘study,

develop, and describe appropriate alternatives to rec-

ommended courses of action in any proposal which

involves unresolved conflicts concerning alternative

uses of available resources.”

Following the enactment of NEPA, the task force

and the Department of the Interior intensified their

studies of the proposed pipeline. In February 1970,

the Secretary of the Interior appointed a Technical

Advisory Board to advise the task force and the Secre-

tary on geological factors, terrain suitability and en-

gineering design criteria. A broader group of technical

and scientific experts obtained and evaluated detailed

information from the oil companies and completed

drafting the technical pipeline design and construc-

tion stipulations referred to above.’

In January 1971, a 200-page draft environmental

impact statement on the proposed trans-Alaska pipe-

line was released to the public by the Department of

*The technical stipulations were included as an attachment

to the draft environmental impact statement which was re-

leased to the public for comment in January 1971. 36 Fed.

Reg. 622.

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the Interior and circulated to appropriate federal]

agencies for review and comment. Public hearings on

the draft statement were held both in Washington,

D.C., and in Alaska; the record of the hearings in.

cludes more than 10,000 pages of written and oral

testimony and exhibits from 2731 interested persons

and organizations (App. C, infra, p. 144a).

Following the public hearings, the oil companies

were requested to submit further detailed technica]

information, and their submissions were comprehen-

sively reviewed. Additional federal task forces, includ-

ing biologists, geologists, economists and other tech-

nical personnel, analyzed the information received at

the public hearings and the comments from other

agencies, obtained additional information, and pre

pared the final environmental impact statement (App.

C, infra, pp. 144a-145a).

The Department of the Interior issued the final en-

vironmental impact statement on March 20, 1972. The

six-volume statement, prepared at an estimated cost

of $9,000,000, contains an exhaustive analysis of all

aspects of the environmental impact of the proposed

trans-Alaska pipeline. Copies of the statement were

made available to the Council on Environmental Qual-

ity and other federal agencies and to the public (App.

A, infra, p. 5a; App. C, infra, p. 146a). One 500-page

volume of the final statement is devoted to a discus-

sion and analysis of the possible alternatives to the

construction of the proposed trans-Alaska pipeline.

Detailed consideration is given to the possibility of

deferring development of the Alaska oil reserves for

the present and to alternative methods of transporting

the oil to the 48 contiguous States. Alternative pipe-

line routes across Canada are considered in detail.

Together with its final impact statement, the De-

partment released a three-volume Department report

on the economie and security aspects of the proposed

trans-Alaska pipeline. In compiling this report, the

Department received and analyzed information from

the State of Alaska, the Canadian government, pri-

vate consultants, Alyeska, and various federal agen-

cies, including the Defense, State, Treasury and Com-

merce Departments, the Council of Economie Advisers

and the Office of Emergency Preparedness (App. C,

infra, pp. 145a—-146a).

Finally, subsequent to the release of the final impact

statement, the Department of the Interior gave fur-

ther consideration to the possibility of transporting

the oil from the North Slope by a pipeline across

Canada. Option papers and memoranda were prepared

for the Secretary emphasizing the Canadian alterna-

tives and the possibility of constructing an oil pipeline

in the same trans-Alaska-Canada corridor that will

eventually contain a natural gas pipeline to transport

the large quantities of natural gas associated with

the North Slope oil (S.J.A. 3-22).‘

C. THE DECISION OF THE SECRETARY OF THE INTERIOR

On May 11, 1972, the Secretary of the Interior an-

nounced his intention to issue the necessary permits

*“J.A.” and “S.J.A.” refer to the joint appendix and the sup-

plemental joint appendix filed in the court of appeals. We are

lodging copies of these appendices with the Clerk of this Court.

fea Zn i Ga, Fe 4s ageem eae ws e686 4 oe «6 cases,

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and rights-of-way for the construction and operation

of the proposed trans-Alaska pipeline, and issued a

detailed statement of his reasons for approving the

permit and right-of-way applications (App. C, infra,

pp. 143a-177a).

With respect to the Nation’s need for oil, the Secre.

tary noted that, without the trans-Alaska pipeline, the

difference between the Nation’s projected demand for

crude oil on the one hand and the projected domestic

production and imports from other Western Heni-

spheric countries on the other hand would increase

from 4.38 million barrels per day in 1975 to 12,03

million barrels per day in 1985. If the trans-Alaska

pipeline were authorized at this time, it would proba-

bly deliver 600,000 barrels per day of oil by 1975 and

1.6 to 2 million barrels per day by 1985 (td. at 158a-

159a).

The Secretary stated that the Secretaries of State

and Defense and the Director of the Office of Emer-

gency Preparedness had urged that there is a clear

national security need for the development of North

Slope oil to help keep the dependence of the United

States on insecure imports of foreign oil within reason-

able limits. The Secretary cited comments from the

Treasury and Commerce Departments with respect to

the need for Alaskan oil to help satisfy the Nation’s

growing energy demands from domestic sources with as

little disruption to the environment as possible, and

the significant effects of non-development of North

Slope oil on the balance of payments and the con-

tinued overall economic security of the country. The

—- eo teeiemnnT ean Oh tetlCUCcrlC RP nlC rr elC lUC COD

Secretary also referred to the substantial royalty and

tax revenues the State of Alaska would derive from

the development of the oil, the interests of Alaskan

Natives in the oil under the Alaska Native Claims

Settlement Act, 85 Stat. 688, 694-695, and the heavy in-

vestments of American industry in North Slope oil

and gas leases (td. at 159a-161a). Based on the fore-

going, the Secretary concluded that the development of

North Slope oil is in the national interest and should

be accomplished ‘‘as rapidly as practicable”’ (td. at

162a).

In approving the proposed trans-Alaska pipeline as

the most desirable of the alternatives for transport-

ing the North Slope oil to appropriate markets, the

Secretary found that the preferable primary market for

the oil is the Pacific Coast States region, and that the

pipeline could be operational within three years (id. at

162a-164a).

The Secretary reviewed the environmental con-

sequences of the proposed pipeline, and discussed in

some detail several alternative pipeline routes through

Canada (id. at 165a-173a). The Secretary considered

the economic and environmental advantages of con-

structing both the oil and natural gas pipelines nec-

essary to market the oil and natural gas from the

North Slope in a common corridor through Canada,

but concluded that the advantages were outweighed

by “both the advantages to the national interest re-

sulting from the construction of a trans-Alaska line

and the disadvantages to the national interest asso-

ciated with the trans-Alaska-Canada route’’ (id. at

I74a). The Secretary noted that, although the Ca-

VESSEL NSTI eee

LEI ELLE Or

nadian government had expressed great interest in a

trans-Alaska-Canada pipeline, the United States had

received nc firm assurances that the Canadian govern-

ment would authorize such a pipeline, and no organi-

zation with access to appropriate financial and tech-

nical resources had indicated any interest in building

an oil pipeline through Canada. The Secretary further

noted that, if an oil pipeline were built through Can-

ada, its capacity would have to be shared with Canada

for the transportation of Canadian oil; he found

that the national interest of the United States re.

quires a pipeline for North Slope oil ‘‘under the total

jurisdiction, and for the exclusive use, of the United

States’’ (id. at 176a). Finally, the Secretary observed

that construction of a pipeline across Canada would

take longer than construction of the trans-Alaska

pipeline, and that it would be at least 3 to 5 years

before construction of the Canadian pipeline could

begin; these delays in themselves would significantly

and adversely affect the national interest of the

United States (td. at 174a-176a).°

D. THE INSTANT LITIGATION

In March 1970, during the course of the Secretary’s

consideration of the permit and right-of-way applica-

tions, The Wilderness Society, Friends of the Earth,

5The Secretary further elaborated on his reasons for reject-

ing the trans-Alaska-Canada common corridor alternative in

testimony before the Joint Economic Committee of Congress

on June 22, 1972 (J.A. 70-86). He there noted that the Cana-

dian government would require 51 percent control of any trans-

Canada pipeline system (J.A. 82).

and the Environmental Defense Fund instituted an

action in the district court to enjoin the Secretary

from issuing the necessary permits and rights-of-way

for the construction and operation of the proposed

trans-Alaska pipeline (App. A, infra, p. lla). On

April 23, 1970, the district court issued a preliminary

injunction on the grounds that it then appeared that

the Secretary had not fully complied with NEPA and

that the applications as then constituted and when

considered together sought a right-of-way in excess

of the maximum permissible width under 30 U.S.C.

185 (App. E, infra, p. 185a). The State of Alaska

and Alyeska were thereafter permitted to intervene as

defendants, and David Anderson and the Canadian

Wildlife Federation were permitted to intervene as

plaintiffs (J.A. 9, 203-207).°

In the summer of 1972, following announcement by

the Secretary of his intention to issue the necessary

permits and rights-of-way for the construction and

operation of the trans-Alaska pipeline, counsel for all

parties agreed to the submission of respondents’ re-

quest for a permanent injunction to the district court

on the basis of a stipulated record. This record included

the voluminous administrative record, various affi-

davits, the transcripts of oral depositions—including

the depositions of the Secretary and other Interior

Department officials—and other proceeds of the exten-

*An independent action seeking to prevent the authorization

of the pipeline and related facilities was initiated by the

Cordova District Fisheries Union in April 1971, and was sub-

sequently consolidated with the action brought by the Wilder-

ness Society, et al. (J.A. 28, 244-252).

496-857 O- 73 - 2

, oo atom nwt an Be tia oe kT. ee ee

TEEN SALE TER SLT

sive discovery conducted by respondents. At the con-

clusion of oral argument before the district court, all

parties agreed that there were no material facts jn

dispute (App. D, infra, p. 180a).

On August 15, 1972, the district court announced

its decision that the final environmental impact state.

ment fully complies with the requirements of NEPA

and that the various permits and rights-of-way sought

by Alyeska and the State of Alaska for the construe.

tion and operation of the pipeline and the construc.

tion of the highway and airports are authorized by

the Mineral Leasing Act and other federal statutes and

regulations (App. D, infra, pp. 180a-182a). Accord-

ingly, the district court dissolved the outstanding pre-

liminary injunction, denied the requests for a perma-

nent injunction and dismissed the complaints (id. at

179a).

E. THE DECISION OF THE COURT OF APPEALS

On an expedited appeal, the court of appeals, sit-

ting en banc, upheld the issuance of rights-of-way and

permits to the State of Alaska for the construction of

the highway and the airports and for the free use of

gravel (App. A, infra, pp. 70a—80a), and to Alyeska for

the pipeline pumping stations and communication fa-

cilities (id. at 62a—70a).” Although the court ruled that

*The court declined to rule on the legality of permits and

rights-of-way for the location of other facilities, including r-

mote control block valves, construction camps, material sites,

permanent and temporary access roads, pipe storage sites, and

temporary airstrips. Although the parties had fully briefed and

argued the validity of these permits and rights-of-way and

these authorizations of permanent uses of land are

not barred by the width limitation contained in Sec-

tion 28 of the Mineral Leasing Act, it nevertheless

held that Section 28 barred the Secretary from issu-

ing to Alyeska the special land use permit for the

temporary use for construction purposes of lands out-

side the 54-foot permanent right-of-way for the pipe-

line itself (td. at 13a-62a).° Finally, the court declined

by a divided vote of 4 to 3 to consider the sufficiency

of the final environmental impact statement under

NEPA (id. at 86a-93a).

With respect to the special permit for the construc-

tion of the pipeline, the court first noted that Section

28 of the Mineral Leasing Act provides for ‘‘rights-

of-way through the public lands * * * for pipeline

purposes for the transportation of oil * * * to the

extent of the ground occupied by the said pipe line and

twenty-five feet on each side of the same * * *.’”? Un-

der a proviso to the Section, “‘no right-of-way shall

hereafter be granted over said lands for the transpor-

tation of oil * * * except under and subject to the

provisions, limitations, and conditions of this section.”

The court rejected the argument that in the context

of the statute “rights-of-way” refers to authority for

although they are obviously necessary for the construction of

the pipeline, the court held that the issue was not “ripe” or

“suitable for judicial determination” since formal applications

for the permits and rights-of-way had not been made (App. A,

infra, p. 7a,n. 1).

*The court noted that the legality of the 54-foot permanent

right-of-way under the Mineral Leasing Act had never been

questioned (App. A, infra, pp. 10a-11a).

I LOND NAMIE ASS A AY NEBR tes

MAM hn) EAH OH) CART NARIE APRN DALIT RD PLU ODM

-18

the permanent use of federal lands and does not ip-

clude revocable special permits for the temporary use

of lands for construction purposes; in the court’s View,

the special construction permit sought by Alyeska js

a “‘right-of-way”’ within the “‘plain meaning” of the

statute (td. at 16a-22a).

Having ascertained the “plain meaning” of Section

28, the court then noted that “[a]ll parties agree that it

is impossible to build large-diameter oil pipelines jf

construction is to be limited to 25 feet on either side

of the pipeline” (td. at 22a). The court stated that in

the absence of specific legislative history, it would

“probably * * * accept” the contention that Congress

must have intended in enacting Section 28 to permit

temporary uses of the land necessary to construct

pipelines since there ‘‘is a presumption against con-

struing a statute so as to render it ineffective”’ (id. at

22a-23a). However, the court concluded from a col-

loquy on the House floor and other fragments of legis-

lative history (relating to an earlier version of the

Mineral Leasing Act introduced several years before

the bill which was ultimately enacted) that Congress

intended all pipeline construction activities to be con-

fined within 25 feet on either side of a pipeline (id. at

23a-39a).°

In concluding that Section 28 bars the issuance of a

special construction permit to Alyeska, the court of

® Judge MacKinnon, in partial dissent, reviewed the same leg-

. islative history and concluded that Congress had intended to

limit only permanent rights-of-way to the statutory width (id.

at 98a-105a).

appeals rejected what it recognized to be the long

standing and consistent administrative construction of

Section 28. The court noted that ever since the Min-

eral Leasing Act was enacted, the Bureau of Land

Management has permitted the use of land outside

statutory rights-of-way for the construction of pipe-

lines, that this practice has been formalized since 1960

through the issuance of special construction permits,

and that special permits have been granted by many

federal agencies for various purposes for 100 years

(id, at 40a). The court concluded that, despite these

administrative practices, it could not “ignore an ascer-

tainable legislative will to restrict construction activi-

ties to the statutory right-of-way”’ (7d. at 51a).

The court of appeals also held that the special

permit sought by Alyeska for constructing the pipe-

line is inconsistent with the regulations of the Bureau

of Land Management governing the issuance of spe-

cial permits. The court first noted that under 43

C.F.R. 2920.0-2(a) special permits are authorized

“for special purposes not specifically provided for by

existing law,’’ and concluded that since Congress had

intended in Section 28 that all construction activities

should take place within the statutory right-of-way,

a special permit for construction could not be issued

under the regulation. The court also stated that the

special permit to be issued to Alyeska would not in

fact be revocable at will as required by 43 C.F.R.

2920.3(a) (1) (id. at 5la—-62a).

The court found it unnecessary to consider the

adequacy of the final environmental impact statement

LTE LRE LEER R TILES EE SOME TS OR BR ENR Ne cs

prepared by the Department of the Interior, since its

ruling on the Mineral Leasing Act issue would make

construction of the pipeline impossible until the Act

is amended—a process which might take “severa]

years” (id. at 90a). By that time, in the court’s view,

the preparation of a revised environmental impact

statement might be necessary, possibly mooting the

controversy over the present statement (tbid.). Three

of the seven judges dissented on this issue on the

grounds that the environmental impact statement was

adequate under NEPA and that the issue should be

considered now (td. at 123a—137a). In a full analysis

of the NEPA issue, Judge MacKinnon found that,

while the trans-Alaska-Canada common corridor al-

ternative to the trans-Atlantic pipeline “is not neatly

analyzed in one place” in the impact statement, it is

“sufficiently treated” in the statement and the Secre-

tary had before him all the environmental facts neces-

sary to make an informed decision (td. at 129a-130a).

This case involves vital national interests of the

United States. The Nation’s demand for crude oil,

already in excess of current supplies in some areas of

the country, is expected to expand rapidly in the im-

mediate future while domestic production of oil, apart

from production from the North Slope, is expected

to remain relatively unchanged. The Secretaries of

State and Defense and the Office of Emergency Pre-

paredness (see p. 12, supra) and other federal of-

2 ee

ficials*® have all urged that there is a national se-

curity need for expeditious development of the North

Slope oil in order to keep the dependence of the United

States on insecure supplies of foreign oil within rea-

sonable bounds. Moreover, the development of the

North Slope oil fields will have a substantial beneficial

effect on the Nation’s balance of payments. Once the

pipeline reaches its full capacity of 2 million barrels

per day, balance of payment deficits would thereby

be reduced by approximately $2 billion per year at

current world oil prices. It is estimated that each

day’s delay in bringing the Alaska oil to market

results in a balance of payments loss to the United

States of about $5 million.” —

*” During the course of our consideration and preparation of

this petition, we have received letters from the Secretary of

Defense, the Under Secretary of State for Economic Affairs,

the Acting Director of the Office of Emergency Preparedness, the

Assistant to the President for Economic Affairs (on behalf of

the Council on International Economic Policy), the Secretary

of Commerce, the Deputy Secretary of the Treasury and the

Acting Secretary of the Interior emphasizing the importance

of this case to the vital interests of the United States and the

need for expeditious resolution of the matter by this Court so

that construction of the trans-Alaska pipeline may begin. The

letters refer to the expanding demand for oil in this country,

the national security need to keep within reasonable bounds

our reliance on foreign oil imports—particularly from the

Middle East—and the expected beneficial effect of rapid devel-

opment of North Slope oil on the balance of payments.

"Letter from the Deputy Secretary of the Treasury (n. 10,

supra). The Deputy Secretary estimates that the cost of foreign

oil imports may rise from $6.1 billion in 1973 to as high as

$15.3 billion in 1980; he further reports that there have been

“some indications that the dollars we have been spending in the

Middle East for oil have contributed significantly to recent

pressure on the dollar.”

CFE ORES ERE A OBOE TORE PRS eS Gere oe

ee at el eG AD OL

The court of appeals incorrectly construed See.

tion 28 of the Mineral Leasing Act to bar the issuanee

of temporary and revocable special land use permits

for the construction of oil and natural gas pipelines

across federal lands. Its holding not only precludes

the present authorization of the trans-Alaska pipeline,

but, as the court recognized (App. A, infra, p. 22a),

makes it impossible to build or maintain any large

diameter pipeline across public lands. The court below

also erred in refusing to consider the sufficiency of the

final environmental impact statement on the pro-

posed trans-Alaska pipeline—an issue which was fully

briefed and argued below. The refusal to rule on this

issue will not, as the court suggested (App. A, infra,

90a), expedite the ultimate disposition of this contro-

versy, but could result in substantial further delay

once the Mineral Leasing Act issue is resolved. Be-

eause of the fundamental importance of the subject

matter of this case and of the legal issues presented,

review by this Court is warranted.

1. Section 28 of the Mineral Leasing Act authorizes

‘rights-of-way * * * for pipeline purposes” under cer-

tain conditions and provides a procedure “for forfei-

ture of the grant” by a federal district court in the

event the conditions are not complied with. Contrary

to the ruling of the court below, it is by no means

clear from the face of the statute that the limitation

on the term “rights-of-way” is applicable both to per-

manent rights-of-way for pipelines, and to temporary,

revocable special permits for pipeline construction. The

OE SiO MEG. EE LE A

fact that the statute provides for a “forfeiture of the

grant” strongly suggests that the “righg-of-way”’ sub-

ject to the width limitation are indeed only permanent

rights-of-way—it makes little sense to provide for the

forfeiture in a district court proceeding of a permit that

js revocable at the will of the Secretary of the In-

terior. If, as we contend, the statute does not bar

temporary, revocable construction permits, pipeline

construction would be possible while at the same time

the amount of land removed from the public domain

by grant would be limited to the statutory width. On

existing pipelines, as on the proposed trans-Alaska

pipeline, permanent rights-of-way for maintenance are

not required outside the rights-of-way granted under

Section 28, if temporary permits for access and main-

tenance can be issued when specific maintenance needs

arise.”

In view of the fact that Section 28 can readily be con-

strued on its face in a manner which would achieve the

underlying intent of Congress to permit the construc-

tion of pipelines, the court below erred in relying

on fragments of the legislative history of an earlier

statute to reach a contrary construction, while refus-

ing to give appropriate weight to the long standing

* Judge MacKinnon’s limited concurrence with the major-

ity’s invalidation of the special permit sought by Alyeska on

the ground that the permit would be used not only for con-

struction purposes but also for maintenance purposes (App. A,

infra, pp. 119a-123a) thus rests on a faulty factual premise.

Pr Fane |

and consistent administrative interpretation of the

statute.”

One of the reasons the court of appeals gave for

rejecting the consistent administrative interpretation

of Section 28 was that, since the administrative prac.

tice had never come to the attention of Congress, there

could be no finding of congressional acquiescence

(App. A, infra, p. 47a). Yet, with respect to the very

pipeline at issue in this case, various congressional

committees have been fully informed of the plan to

use additional space during the construction period.”

Moreover, the legislative history of the Alaska

Native Claims Settlement Act, 85 Stat. 688, discloses

73 As the court below noted (App. A, infra, p. 40a), the

Bureau of Land Management has traditionally permitted the use

of lands outside of statutory rights-of-way for pipeline con-

struction purposes. The issuance of revocable, special permits

for such purposes is now governed by 43 C.F.R. Part 2920.

The practice of issuing permanent rights-of-way for pumping

stations and other structures necessary for pipeline purposes

was approved by the Attorney General in 1931 (36 Op. A. G.

480) and was embodied in a regulation in 1943 (8 Fed. Reg.

7723).

%*See Hearings before the Subcommittee on Fisheries and

Wildlife Conservation of the House Committee on Merchant

Marine and Fisheries on the Alaska Pipeline, 91st Cong., Ist

and 2d Sess., pp. 262-263; Hearings before the Special Subcom-

mittee on Legislative Oversight of the Senate Committee on

Interior and Insular Affairs on Oversight of Oil Development

Activities in Alaska, 91st Cong., Ist Sess.; Hearings before the

Senate Committee on Interior and Insular Affairs on the

Status of the Proposed Trans-Alaska Pipeline, 91st Cong., Ist

Sess.; Hearings before the House Committee on Interior and

Insular Affairs on “Alaska Land Freeze—Trans-Alaska Pipe-

line System,” 91st Cong., 1st Sess.

that Congress fully anticipated that the necessary per-

mits, in addition to the basic right-of-way, for the

egnstruction of the trans-Alaska pipeline could and

would be issued by the Secretary of the Interior. In

commenting on the provision in the Act which pre-

served the Secretary’s authority to grant “leases, per-

mits, rights-of-way, or easements,” the Conference

Report stated (H. Rep. No. 92-746, 92d Cong., Ist

Sess., pp. 45-46) :

A major purpose of * * * these provisions

is, of course, to insure that the Secretary has

the authority to grant any contracts, leases, per-

mits, rights-of-way, or easements which may in

the future be necessary * * *. This language

would also permit the Secretary, if he should

so decide in the future, to grant the necessary

rights-of-way, permits, and other legal author-

ity necessary for the construction of the pro-

posed trans-Alaska oil pipeline. * * * The con-

ference committee does, however, want it clearly

understood that tf the Secretary should, after full

and careful evaluation, and after completion of

the environmental impact statement required by

the National Environmental Policy Act, decide to

grant the necessary permits, nothing in this con-

ference report is intended to, nor should be con-

strued in any manner to limit, diminish, or con-

dition the Secretary’s existing authority to take

any action required to implement this decision.

Finally, the court below erroneously held that the

special permit sought by Alyeska would not in fact

be revocable as required by 43 C.F.R. 2920.3(a) (1).

In so doing, the court misconstrued a 1928 ruling of

PSOE IN RECOM MRM A TIT ct,

- 26

the Attorney General, relied on by many executive

agencies, setting forth the standard of revocability. In

upholding the Secretary of War’s authority to isgue

a revocable license for the construction of a railroad

across lands under his jurisdiction, the Attorney Gen-

eral held (35 Op. A.G. 485, 489) :

The essential thing is to preserve unimpaired

the title of the United States and its right at

any time to occupy and use its property and to

prevent any use by the licensee which would

permanently damage or destroy the property

for governmental use. * * *

The special permit sought by Alyeska would be revo-

cable under this standard.

2. The refusal of the court below to rule on the

adequacy under NEPA of the final environmental

impact statement was also error. The court stated that

its resolution of the Mineral Leasing Act issue made

it unnecessary to rule on the NEPA issues. Yet the

court upheld the prospective issuance of rights-of-way,

leases, and free use gravel permits to the State of

Alaska for the construction of the highway and air-

ports (App. A, infra, pp. 70a-80a), and we are in-

formed by the State that construction of the highway

may begin as soon as it is legally permissible to do so. As

part of the overall plan to construct the pipeline, the

environmental effects of the highway and airports

were also analyzed in the impact statement; accord-

ingly, the court of appeals should have considered the

adequacy of the impact statement in authorizing this

construction. Moreover, in hypothesizing that resolu-

tion of the Mineral Leasing Act issue might take

4geyeral years,’ the court gave inadequate considera-

tio to the possibility that the issue might be ex-

peditiously resolved either by Congress or by this

Court in a matter of months. In any event, the im-

portance of the case required that the NEPA issues

be decided so that further delays in the authorization

of the pipeline might he avoided.

The court’s statement that many of the NEPA

issues “involve still disputed questions of fact’’ (App.

A, infra, p. 91a) stands against the extensive record

stipulated to by the parties and the acknowledgment

by all the parties before the district court, which

decided the NEPA issues, that no material facts were

in dispute (App. D, infra, p. 180a). The NEPA is-

sues were briefed and argued below and were fully

considered by three court of appeals judges in dissent.

In these circumstances, even though four other court

of appeals judges have not ruled on the NEPA issues,

there is an appropriate predicate for consideration by

this Court of the merits of respondents’ NEPA claims,

and they should be decided by this Court because of

the great importance of the case and the national

interest in its expeditious resolution.

As we have noted (pp. 8-11, supra), the final envi-

ronmental impact statement of the Department of the

Interior on the trans-Alaska pipeline was the product

of a massive, inter-disciplinary and inter-departmen-

tal study and analysis of every aspect of the proposed

pipeline. An entire volume of the impact statement

was devoted to discussion of the alternatives to the

proposed pipeline, including the various possible

ser emer sts cronmeatcenamreum crm pe enn agora

Rae a Mea. hie af oe ant oe ae ea?

I EI ELOD PEOLL LEO LL EIEIO RE” DAI ET, 0 call

routes for a trans-Alaska-Canada pipeline, and the

possibility of a common corridor for oil and nat.

ural gas pipelines was considered. Moreover, the

Secretary’s statement of reasons for authorizing the

trans-Alaska pipeline and his subsequent testimony

to Congress make clear that the common corridor

alternative was carefully considered and rejected (see

pp. 13-14, supra). In short, as the district court

and the three court of appeals judges who reached

the issue unanimously held, the Department of the

Interior fully complied with NEPA. The question

for judicial decision is not whether the Secretary

reached the right conclusion, but whether he made

a good faith and substantial effort to consider all en-

vironmental factors as required by NEPA. There can

be no doubt of that issue on this record.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ERWIN N. GRISWOLD,

Solicitor General.

KENT FRIzzELL,

Assistant Attorney General.

SAMUEL HUNTINGTON,

Assistant to the Solicitor General.

EpMUND B. CuarRk,

HERBERT PITTLE,

Attorneys.

Marcx 1973.

APPENDIX A

Notice: This opinion is subject to formal revision before publication in

Rnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 72-1796, 72-1797 & 72-1798

Tae Wiperness Society,

ENVIRONMEN+sAL DeFeNsE F'unp, Inc.,

FRIENDS OF THE EaRTH

AND

Davin ANDERSON,

CanapiaN Witp Lire FEpeERaTIon

AND

Tae Corpova District FisHerres UNION, APPELLANTS

Vv.

Rocers C. B. Morton,

SECRETARY OF THE INTERIOR

Kart L. Butz,

SECRETARY OF AGRICULTURE

AND

(la)

EMPL SPY I HO

> AIL ET

AtyesKa Prreuine Service Company

AND

State or ALASKA

Appeals from the United States District Court

/ for the District of Columbia

Decided February 9, 1973

Edward Berlin, with whom Gladys Kessler was on the

brief, for appellants in No. 72-1796.

Dennis M. Flannery, with whom Saunders C. Hillyer,

John F. Dienelt, Thomas B. Stoel, Jr., Victor H. Kramer,

James W. Moorman and Charles R. Halpern were on the

brief, for appellants in No. 72-1797.

Warren W. Matthews, Jr., of the bar of the Supreme

Court of Alaska, pro hac vice, by special leave of court,

with whom Thomas F. Hogan was on the brief, for appel-

lant in No. 72-1798.

Edmund B. Clark, Attorney, Department of Justice,

with whom Assistant Attorney General Kent Frizzell and

Herbert Pittle, Thomas L. McKevitt, David W. Miller and

William M. Cohen, Attorneys, Department of Justice, were

on the brief, for appellee Morton.

Paul F. Mickey and Robert E. Jordan, III, with whom

Scott R. Schoenfeld and Quinn O’Connell were on the

brief, for appellee Alyeska Pipeline Service Company.

John E. Havelock, Attorney General, State of Alaska,

pro hac vice, by special leave of court, with whom William

fa ak oe TR SRT BM a IRI Cae Mies I BA PRS

H. Allen, Richard D. Copaken, and Jay L. Carlson were

on the brief, for appellee State of Alaska.

Tilford A. Jones and Earle D. Goss filed a brief on be-

half of United Distribution Companies as amicus curiae.

Before Bazeton, Chief Judge, and Wricut, LeveNTHAL,

Rosixsson, MacKinnon, Ross and Wiikey, Circuit Judges,

sitting en banc.*

Opinion for the court by Circuit Judge Wright.

Opinion concurring in part and dissenting in part by

Circuit Judge MacKinnon at p. 97.

Opinion concurring in part and dissenting in part by

Circuit Judge Robb at p. 136.

Opinion concurring in part and dissenting in part by Cir-

cuit Judge Wilkey at p. 137.

Waricut, Circuit Judge: The question before us in these

eases is Whether a permanent injunction should issue har-

ring appellee Secretary of the Interior from carrying out

his stated intention of granting rights-of-way and special

land use permits necessary for construction by appellee

Alyeska Pipeline Service Company (Alvyeska), across lands

owned by the United States, of a 48-inch-wide oil pipeline

which would stretch some 789 miles from Prudhoe Bay on

the North Slope of the State of Alaska to the Port of Val-

dez on the southern Pacific coast of Alaska. We are also

called upon to determine the legality of a special land use

permit issued by the Acting Forest Supervisor of the Chu-

gach National Forest, on behalf of the Department of Agri-

culture, which would permit construction of an oil tank

farm terminal on Chugach National Forest land bordering

Prince William Sound at Valdez. The District Court, on

* Circuit Judge Tamm was a member of the court sitting

en bane at the time this appeal was argued, but withdrew

from participation in its consideration after submission but

before decision.

%-857 0-73 - 3

LL LLL EMI LEL. LENA IICP LILIES TEENIE ALE ERS nat

“nN oe

April 23, 1970, granted a preliminary injunction againg

issuance of the permits and rights-of-way. See Wilderness

Society v. Hickel, D. D.C., 325 F.Supp. 422 (1970). When

the question of a permanent injunction came before the

District Court on August 15, 1972, the court, in a brief yp.

reported opinion, dissolved the preliminary injunction, de.

nied a permanent injunction, and dismissed the complaints,

This expedited appeal followed. We reverse.

While the parties to this action have managed to produce

a record and a set of briefs commensurate with the multi-

billion-dollar project at stake, the basic contentions of the

parties, and our views with respect thereto, may be sum.

marized quite briefly. Appellants contend that issuance of

certain rights-of-way and special land use permits by the

Secretary of the Interior to Alyeska and to the State of

Alaska would violate Section 28 of the Mineral Leasing Act

of 1920, 30 U.S.C. $185 (1970), by exceeding the width

limitation of that section. They argue, too, that the permit

issued by the Forest Supervisor violates 16 U.S.C. §§ 497

and 497a (1970) by exceeding the 80-acre limitation of those

sections. Finally, appellants contend that issuance of any

permits or rights-of-way necessary for construction of the

trans-Alaska pipeline violates the National Environmental

Policy Act of 1969, 42 U.S.C. § 4231 et seg. (1970) (herein-

after NEPA). In general they claim that Interior has not

prepared an adequate environmental impact statement.

More specifically, they charge that the six-volume state _

ment issued by the Department of the Interior fails ade- |

quately to consider either the alternative of a pipeline route

through Canada or the alternative of deferral of a de-

cision until more information on the Canadian alternative

ean be obtained.

Appellees respond that all of the rights-of-way to be is-

sued to the State of Alaska and some of the rights-of-way

to be issued to Alyeska are authorized under statutes other

FE LE END ts sO RON ERNE bee

than Section 28, that the Secretary's authority to issue the

other rights-of-way to Alyeska may be implied under Sec-

tion 28, and that the special land use permits to be issued to

Alyeska are not rights-of-way within the meaning of Sec-

tion 98 and are thus exempt from Section 28’s width limita-

tion. As to the land use permit issued by the Forest Super-

visor, appellees first argue that we should not decide the

issue because it will soon hecome moot by reason of the

imminent transfer of the land concerned to the State of

Alaska under the Alaska Statehood Act, Pub. L. 85-508, 72

Srat. 339, July 7, 1958, as amended. Should we choose to

decide the issue, however, appellees maintain that issuance

of revocable land use permits does not violate the acreage

limitations of Sections 497 and 497a and is independently

authorized under 16 U.S.C. § 551 (1970).

On the question of compliance with NEPA, appellees

contend generally that their intensive efforts at compli-

ance, involving expenditure of over $9,000,000, have pro-

duced a statement that more than meets the requirements

of the Act. Focusing on the Canadian alternative and the

alternative of deferral, they argue that these matters re-

ceived sufficient consideration, both in the impact statement

itself and by the Secretary of the Interior in making his

decision to support the trans-Alaska pipeline, and that

given certain problems with the Canadian alternative,

the lack of information about other aspects of the alterna-

tive, and the high costs of deferral to obtain more informa-

tion, the Secretary's decision to grant the pipeline permits

was not an abuse of discretion.

Before summarizing our holding, we wish to note first

that we have brought to these cases an awareness of the se-

vere impacts our ruling will have. Any decision further

enjoining construction of this project will impose serious

costs on the oil companies who plan to build the pipeline

and who have made substantial investments that cannot

AMET | GE TRAD MME AEN EPO EAU AE SOT

NY TOS EEL FRI

DRE Fi OO

begin to show a return until oil begins to flow from their

wells at Prudhoe Bay. The project means much needed

jobs and income to the people of the State of Alaska, and

development of Prudhoe Bay oil resources will bring forth

badly needed revenues for the Alaska State Treasury. Ree.

ognizing these hardships, however, we nevertheless are cop.

strained to enjoin the Secretary of the Interior from iggy.

ing one of the permits which all parties recognize is neces.

sary for construction of the pipeline. We have determined

that the Secretary of the Interior lacks authority to grant

the special land use permit for construction purposes which

Alyeska has requested, and that the grant of this permit

constitutes a violation of both Section 28 of the Mineral

Leasing Act and applicable Bureau of Land Management

regulations. We base our decision on a literal reading of

the provisions of Section 28, the legislative history of that

section, and the settled construction of the administrative

regulations. In brief, it is our view that the legislative his.

tory clearly indicates that when Congress enacted Section

28 it intended that all construction work take place within

the confines of the width limitation of the section—that

is, within the area covered by the pipe itself (4 feet) and 25

feet on either side. In addition, the relevant regulations

require that all special land use permits be revocable, and

we hold that the permit in this case does not meet that re-

quirement as it has previously been construed. Since all

parties agree that construction of the proposed 48-inch

diameter pipeline is impossible if all construction work

must take place within the width limitation of Section 2,

we must enjoin issuance of this special land use permit

until Congress changes the applicable law, either by amend-

ing Section 28’s width limitation or by exempting this proj-

ect from its provisions.

As to the remaining issues in these cases, our holding is

as follows. The Secretary of the Interior has authority to

issue to the State of Alaska rights-of-way for a state high-

ESL EE EE LEE DIT SES 7

Dee NRE ne 8 NS Ey REIT A! EERE ROE ee OY PE ee ee

7a i

way, for several public airports, and for the free use of

svel for these facilities, even though the facilities will

probably be used primarily for the construction, main-

tenance and operation of the proposed pipeline. We rest

this holding on our conclusion that Section 28 of the Min-

eral Leasing Act does not bar resort to other specific statu-

tory grants of rights-of-way. For the same reason we con-

clude that the Secretary has authority to issue rights-of-

vay to Alyeska for 26 communication sites along the pipe-

line route. Also, the Secretary has authority to issue

rights-of-way for construction of pumping stations along

the pipeline route since our reading of the statute and its

legislative history and our recognition of a settled admin-

istrative practice in this regard lead us to conclude that

pumping stations are part of the “pipeline” within the

meaning of Section 28.

Although the parties have briefed and argued the legality

of permits and rights-of-way covering land on which Aly-

eska proposes to locate a variety of other facilities, includ-

ing remote control block valves, construction camps, ma-

terial sites, permanent and temporary access roads, pipe

storage sites, and temporary airstrips, we have decided not

to rule on these issues cn this appeal, primarily because

formal applications for these rights-of-way and permits

have not yet been made.’ With respect to the grant of a

‘Absent any actual applications, the legality of these per-

mits and rights-of-way is not “ripe” or “suitable for judicial

determination.” See L. JAFFE, JUDICIAL CONTROL OF ADMIN-

ISTRATIVE ACTION 395 (1965). Without specific applications

before us, we lack certain factual information which might be

relevant to the legal issues. Compare our analysis infra of the

Special Land Use Permit (SLUP) for construction purposes,

an analysis which relies, to some extent, on information ob-

tained from the application itself. See Abbott Laboratories v.

Gardner, 387 U.S. 136, 148-149 (1967), in which the Supreme

Court rested its finding of ripeness on its observation that the

Pore 8) ee een er — V6 Sey es 2

COPY BOUND CLOSE IN CENTER

special land use permit by the Forest Supervisor, we fing

that the permit is likely to become moot in the near future

and therefore do not decide that issue.

Finally, as to NEPA, since it is desirable that we expe.

dite our decision, since the project will be enjoined in any

event under our ruling on the Mineral Leasing Act issues,

and since the posture of the NEPA issues may change be.

fore those issues are ripe for adjudication, we decline to

pass on them at this time.

Our opinion infra is divided into five parts. The first dis.

cusses the legality of the Special Land Use Permit for eop.

struction purposes proposed to be issued by Interior to

Alyeska. Part II discusses the other rights-of-way to be

issued to Alyeska—for pumping stations and communica.

tions facilities. The third part concerns the rights-of-way

to be issued to the State of Alaska for a public highway,

for several airports, and for the free use of gravel. Part IV

discusses the issues raised by the Special Land Use Permit

for the tank farm. Finally, Part V explains our reasons

for not deciding the NEPA issues in this case. Before turn-

ing to this analysis, we present a short factual introduction,

relevant primarily to the first three parts of our opinion.

Factual Introduction

Prudhoe Bay, on the North Slope of Alaska, was the site

of a major oil field discovery in 1968. Following that dis-

covery several oil companies, acting through their agent

Trans Alaska Pipeline System (TAPS), predecessor of ap-

issue presented was “a purely legal one.” See also Davis v. |

Ichord, 1423 U.S.App.D.C. 183, 196, 442 F.2d 1207, 1220 —

(1970) (Leventhal, J., concurring), suggesting that the test

of ripeness is whether “the controversy is so sharpened by

a specific factual context as to permit a sure-footed judicial

appraisal of the pertinent factors.”

Alyeska, developed plans to transport the oil from

Prudhoe Bay to markets in the lower 48 states. As final-

ised, the plans involved constructing a 48-inch diameter

ine to extend 789 miles from Prudhoe Bay to the Port

of Valdez on the Pacific Ocean, a route crossing lands

owned by the United States for about 641 miles. The pipe-

line would have an ultimate capacity of carrying 2,000,000

tarrels of crude oil per day. Oil arriving at Valdez would

be loaded on to tankers for shipment to ports such as Se-

attle, San Francisco and Los Angeles.

Because the proposed pipeline would cross lands owned

by the United States, the oil companies had to seek rights-

of-way from the agency entrusted with management of the

lands to be crossed, the Bureau of Land Management of the

Department of the Interior. In June 1969 TAPS submitted

its first application,? requesting a 54-foot primary right-of-

way, an additional 46-foot-wide right-of-way parallel and

sdjacent to the 54-foot right-of-way for construction pur-

poses, and a second additional right-of-way 100 feet in

width for a construction road to run from Prudhoe Bay to

the town of Livengood, a point somewhat less than half

way to Valdez (the pipeline route south from Livengood to

Valdez was already serviced by a state highway). In addi-

tion, the application requested temporary use, for construc-

tion purposes, of 200 to 500 feet on each side of all river

and stream crossings, and for land on which to locate tem-

porary construction camps.

Having had the foresight to anticipate that development

of a project of this magnitude would pose environmental,

technological, social and legal problems, then Secretary of

the Interior Walter Hickel had, on April 18, 1969, estab-

lished within the Interior Department a North Slope Task

ee Documents to Brief of Plaintiffs-Appellants,

10a

Force. At the President’s request, in May 1969 that Task

Force was enlarged into a Government-wide group, span.

ning many Government agencies. On September 15, 1969

the Task Force submitted its Preliminary Report to the

President,’ outlining the problems posed by development

of the pipeline. Among these problems were “Legal and

Procedural Matters” and within this category was a dis.

cussion of the legal problems posed by the then pending

right-of-way application:

“Width of the right-of-way: The application re.

quests a 54-foot wide pipeline right-of-way together

with an additional parallel and adjacent 46-foot right.

of-way. Further, for all sections between Livengood

and the North Slope, the applicants request another

100-foot right-of-way for a construction road, maki

_— requirement of 200 feet in width for that dis.

ce.

“The authorizing statute (30 U.S.C. 185) limits pipe.

line rights-of-way to 25 feet on either side of center

line, or to a total of 54 feet. Discussions are continuing

between the Department and TAPS to determine the

exact method by which TAPS will acquire the addi-

tional 46 feet for the pipeline right-of-way and the fur.

ther addition of a 100-foot right-of-way for a construe-

tion road.” *

Apparently aware of the legal problems posed by its

earlier application, TAPS submitted an amended applica-

tion in December 1969.5 This application purported to

request only a single right-of-way 54 feet in width, the

legality of which has never been questioned under the

8 Id., Tab C.

*Jd., Tab C at 11. It is interesting to note that, although

the Task Force classified the Mineral Leasing Act’s width

limitation as a problem, it did not include it in its list of 5

“major concerns” in its Preliminary Report. See id. at 14.

5 Id., Tab D.

Cet ee ee a ae eS ee ae eS ee See em 2 ee rare “TF

lla :

{Mineral Leasing Act. Concurrently with this amended ap-

plication, however, TAPS submitted two separate appli-

cations for “Special Land Use Permits.” The first Special

land Use Permit (we will hereafter use the unfortunate

gronvm SLUP) application requested “additional access

and construction space extending 11 feet on one side and

% feet on the opposite side” of the oil pipeline right-of-

yay. The second SLUP application requested an area “200

eet in width to contain the pipeline construction surface

and haul road” to run from Prudhoe Bay to Livengood.

On March 26, 1970 plaintiffs-appellants—The Wilderness

Society, Friends of the Earth, and Environmental Defense

Fund, Ine.—filed their complaint for declaratory and in-

junctive relief against appellee Secretary of the Interior.

They alleged that the Secretary intended “within the im-

mediate future to issue right-of-way and/or special use

permits to TAPS for the purposes of the pipeline” and

that this action would violate the width restrictions of Sec-

tion 28 of the Mineral Leasing Act of 1920. On April 3,

1970 Judge McGuire denied plaintiffs’-appellants’ request

fora temporary restraining order. On April 23, 1970, after

oral argument on plaintiffs’-appellants’ motion for a pre-

liminary injunction, Judge Hart issued his findings of fact

and conclusions of law. See Wilderness Society v. Hickel,

supra. Judge Hart found that the 54-foot right-of-way

permit, the 46-foot SLUP for access and construction space,

and the 200-foot SLUP for a construction surface and haul

road constituted, “in effect, a single application for a pipe

line right-of-way” and that when considered together the

applications requested “a pipe line right-of-way in excess

of the width permissible under Section 28 of the Mineral

Leasing Act of 1920, 30 U.S.C. $185.” 325 F.Supp. at 424.

Accordingly, Judge Hart issued a preliminary injunction

against issuance of the permits and rights-of-way.

During the 16-month interval between issuance of the

12a

preliminary injunction and the hearing on the permanent

injunction, there were several significant developments af.

fecting the Mineral Leasing Act issues. In March 197}

Alyeska filed an application for rights-of-way for 26 com.

munications sites.* In June 1971 the State of Alaska, inter.

venor-appellee in these cases, entered into a contract with

Alyeska* whereunder Alyeska agreed to build a public

highway to run from Livengood to Prudhoe Bay, along a

route almost identical with the route of the 200-foot-wide

haul road proposed in TAPS’ SLUP application of Decem.

ber 1971. In this contract Alaska agreed to be responsible

for securing all rights-of-way across federal land n

for the highway, and on July 28, 1971 the State of Alaska

applied to the Bureau of Land Management for a highway

right-of-way across public lands for this road.* Following

this application, on August 18, 1971 Alyeska withdrew its

SLUP application for the 200-foot haul road.*

Alaska has also submitted applications to the Secretary

of the Interior for leases of public lands for construction

of three airports along the pipeline route.” Alyeska has

entered into a contract with Alaska whereby Alyeska will

construct these airports and operate them as public airports

during construction of the pipeline. Also, Alaska has ap-

plied for a series of free-use permits for gravel, the gravel

to be used in construction of the above described highway

and airports.

* Id., Tab H-6.

™Supporting Documents, Alyeska Mineral Leasing Act

Brief, Vol. II, Tab 6.

8 Supplemental Documents, supra note 2, Tab E-2.

* Id., Tab G.

10 Jd., Tab I.

11 Jbid.

12 Supporting Documents, supra note 7, Vol. II, Tab 8.

13a

On February 4, 1972 Alyeska filed an amendment to its

December 1971 application for a SLUP for construction

3 The amendment, in contrast to the December

SLUP application, did not specify the amount of land to

he covered by the SLUP but rather requested “the tem-

rv use of such minimum amounts of land under the

jurisdiction of the Secretary of the Interior as may he

reasonably necessary for construction of a proposed 48”

diameter oil pipeline * * *.”"™ Also on February 4, 1972

Alyeska filed an amended application requesting rights-of-

way for 10 pumping stations.”

On May 11, 1972, through a News Release,'* the Secretary

of the Interior announced his decision to grant the neces-

sary permits for the proposed pipeline. It is the lawfulness

of this decision which is at issue in these cases. On August

15, 1972 Judge Hart dissolved the preliminary injunction,

denied the application for a permanent injunction, and dis-

missed appellants’ complaints.

I. THE SPECIAL LAND USE PERMIT

A. Introduction.

The pending application by appellee Alyeska to the

Bureau of Land Management requests, as indicated above,

“the temporary use of such minimum amounts of land under

the jurisdiction of the Secretary of the Interior as may be

reasonably necessary for construction of a proposed 48”

diameter oil pipeline * * *.”?* The application states that

8 Jd., Tab 3.

“ Id., Tab 3, Response to Question 2a at 2.

% Supplemental Documents, supra note 2, Tab H-5.

* Appendices to Briefs of Plaintiffs-Appellants, Tab A.

"Supporting Documents, supra note 7, Vol. II, Tab 3, Re-

sponse to Question 2a at 2.

CODY RVIIBTD CIT OaGeEe IN CCA Tee

PINE DY PRM ORME GS

a i

l4a

“{a]fter construction has been completed, no continuin

interest in this additional space is or will be claimed by

Alyeska. * * * Alyeska recognizes that any authorization to

use the space * * * will remain at all times revocable at wil]

by the government, without cause or justification, and with.

out giving rise to any claim against the government arising

out of such revocation.” ™

While the application states that “[t]he precise amount

of land required for construction purposes may only be

approximated at this time,”’® it also provides what all

parties agree are fair estimates of the amount of space to

be used outside and in addition to the basic 54-foot right-

of-way, the legality of which is not challenged under the

Mineral Leasing Act. The application states:

«# * * [A])pproximately 85 per cent of the right-of-

way (approximately 662 miles) will require the tem-

porary use of widths ranging from 46 to 146 feet.

Approximately two-thirds of this distance (about 456

miles) will require temporary widths of 96 feet or less.

Along the remainder of the route, instances will occur

where greater widths will be necessary, such as at

river crossings, road crossings, and in mountainous

terrain. Temporary widths exceeding 246 feet are

expected to comprise only about 28 miles of the 789-

mile pipeline route, occurring primarily at river cross-

ings and in particularly difficult terrain.” *

(Footnote omitted.)

In order to understand what the SLUP will be used for,

why it is needed, and whether it is legal, it is necessary to

consider some of the mechanics of pipeline construction.

Most of the proposed pipeline will be buried underground,

the remainder being placed on a gravel berm or on raised

18 Td. at 4.

19 Td. at 2.

20 Td. at 3.

15a

pilings. We will only describe construction under the burial

mode since construction under the other modes differs only

slightly with respect to the amount of land used. Construc-

tion proceeds step-by-step through a number of distinct

operations. First, prior to construction a centerline is sur-

veyed and marked. A construction zone is cleared and

graded, and the ditch for the pipe is dug. The pipe, valves,

fittings and coating materials are then transported to the

job site and the pipe is strung along the open ditch. Fre-

quently it is necessary to bend the pipe by machine at the

site to fit the alignment and contour of the ditch. Strings

of pipe are then aligned, clamped, and welded together.

Joined sections of pipe are lowered into the ditch by heavy

sideboom tractors. These sections are then joined to the

pipe already in place and the pipe receives its final coatings.

The ditch is then backfilled and compacted.

A minimum work area of about 55 feet on one side of the

pipe is necessary along the entire length of the pipe. The

modern method of pipeline construction requires use of

bulky and heavy equipment designed to operate from one

side of the pipe only. It is essential to provide adequate

vehicle passing space along the entire length of the pro-

posed route since pipe sections must constantly be trucked

to the head of the construction area, and sideboom tractors

which have finished lifting and lowering sections of pipe

must pass ahead of others still engaged in such operations

to take up new positions as construction of the line ad-

vances. Space is needed for the transport of men and

equipment, and safety margins must be provided to avoid

collisions.

The land in most areas along the proposed route is

permafrost—that is, land which absent human interference

remains frozen throughout the year. To prevent thawing

and other disturbance of the permafrost during construc-

tion in these areas, and to prevent the sinking of heavy

OS SE EI SE EI INT LF LILLIE, FM OER IO CLES IP SA FO

° ee |

16a

equipment, a gravel work pad must be constructed over the

working area. The pad is basically a gravel road with

gravel compacted to a depth of from 18 inches to five feet

Of the total 9600 acres of land estimated to be covered by

the SLUP, about 3600 acres represent land to be used for

this construction area and work pad.

The remaining 6000 acres will be used in other, con.

struction-related ways. First, whenever the pipeline passes

through hilly or mountainous areas, or where it crosses a

river or road, it is often necessary to modify the grade in

areas adjacent to the actual construction area to assure

slope stability and to provide for a level construction area.

Grading these adjacent areas produces large amounts of

rock, dirt and gravel, known as cut spoil, which must be

piled up on the side of the pipeline opposite the construe.

tion side. In addition, the material removed from the

ground when the ditch is dug and displaced by the pipeline

when it is placed in the ditch—known as ditch spoil—must

also be piled up opposite the construction side of the pipe-

line. In laymen’s terms, then, the other 6000 acres will be

used to grade away mountains and hills in some areas, and

to pile their remains, along with ditch spoil, in others.

B. Section 28 of the Mineral Leasing Act.

Section 28 of the Mineral Leasing Act of 1920, 30 U.S.C.

§ 185, provides in pertinent part:

“Rights-of-way through the public lands, including

the forest reserves of the United States, may be

21 See U.S. DEPT. OF INTERIOR, FINAL ENVIRONMENTAL IM-

PACT STATEMENT: PROPOSED TRANS-ALASKA PIPELINE, Vol.

IV, at 67 (1972) (hereinafter cited as Impact Statement).

Cf. ALEYESKA PIPELINE SERVICE Co., SUMMARY: PROJECT DE-

SCRIPTION OF THE TRANS ALASKA PIPELINE SYSTEM 50 (Aug.

1971) (hereinafter cited as Project Description), estimating

the thickness to be from 6 inches to 3 feet.

17a

granted by the Secretary of the Interior for pipe-line

purposes for the transportation of oil or natural gas to

any applicant possessing the qualifications provided in

section 181 of this title, to the extent of the ground

occupied by the said pipe line and twenty-five feet on

each side of the same under such regulations and con-

ditions as to survey, location, application, and use as

may be prescribed by the Secretary of the Interior and

upon the express condition that such pipe lines shall

be constructed, operated, and maintained as common

earriers and shall accept, convey, transport, or pur-

chase without discrimination, oil or natural gas pro-

duced from Government lands in the vicinity of the

pipe line in such proportionate amounts as the Secre-

tary of the Interior may, after a full hearing with due

notice thereof to the interested parties and a proper

finding of facts, determine to be reasonable: * * *

Provided further, That no right-of-way shall hereafter

he granted over said lands for the transportation of

oil or natural gas except under and subject to the pro-

visions, limitations, and conditions of this section.

Failure to comply with the provisions of this section

or the regulations and conditions prescribed by the

Secretary of the Interior shall be ground for for-

feiture of the grant by the United States district court

for the district in which the property, or some part

thereof, is located in an appropriate proceeding.”

Appellants contend that the SLUP for the construction

zone violates that portion of Section 28 which provides

“That no right-of-way shall hereafter be granted over said

lands for the transportation of oil or natural gas except

under and subject to the provisions, limitations, and eondi-

tions of this section.” That is, appellants claim that the

SLUP is a “right-of-way” “for the transportation of oil”

which violates one of the “provisions, limitations, and con-

ditions” of Section 28 in that it exceeds the statutory width

limitation “to the extent of the ground occupied by the said

pipe line and twenty-five feet on each side of the same * * *.”

Appellees’ response also focuses on a literal reading of

Ste er —- EEE ee — oe

rf goa Se Se EN Ta Rea BE LS eae a a ye es

‘

eT OT |

18a

the statutory language. Interior argues that a temporary

revocable permit is not a right-of-way. In its view, a right.

of-way is an easement, a permanent interest in land, A

_ revocable permit, on the other hand, is like a license which

is not an interest in land. A permit, by this reasoning, cap.

not be a right-of-way. Alyeska adopts a similar approach,

In its view “[fJailure to make a distinction between acts

which convey an interest in land and those which merely

allow its use is the fundamental flaw in Wilderness Society’s

arguments.” “The term [right-of-way] implies conveyance

of an interest in the land, rather than a mere license to use

the land.” In support of their position, appellees cite sey-

eral cases in which a statutory grant of a right-of-way was

construed to grant a permanent easement. See, e.g., Great

Northern Ry Co. v. United States, 315 U.S. 262, 271 (1942):

Panhandle ®astern Pipe Line Co. v. State Highway

Comm’n, 294 U.S. 613, 618 (1935) ; United States v. Welch,

217 U.S. 333, 339 (1910).

Although we base out statutory interpretation not merely

on a literal reading of the statute but on other indicia of

legislative intent, we conclude that a literal reading indi-

cates a result favorable to appellants. To begin with, it

seems clear that a revocable permit to use land is a right-

of-way. Most statutory grants of rights-of-way, it is true,

are construed as grants of permanent easements, but rights-

of-way are occasionally construed as revocable licenses,”

and, more importantly, there is nothing in the accepted

definition of the phrase “right-of-way” which restricts its

application to permanent interests in land. A right-of-way

22 See Guerra v. Packard, 236 Cal.App.2d 272, ——, 46 Cal.

Rptr 25, 33 (1965) (construing the grant of a “right of way

for the purpose of constructing and maintaining a Motorway

and Firebreak” as a revocable license); cf. Seltenreich v.

Town of Fairbanks, D. Alaska, 103 F.Supp. 319, 325-336

(1952), affirmed, 9 Cir., 211 F.2d 83, cert. denied, 348 US.

887 (1954).

19a

js most typically defined as the right of passage over an-

other person’s land.** It has been said that “[a] right of

way is nothing more than a special and limited right of

use,” ** a definition that sounds remarkably similar to the

special land use permit issued in this case. There is no

temporal element in these definitions. Both a revocable

license and a permanent easement fall within their lan-

guage. The regulations of the Bureau of Land Management

recognize this when they define the term “right-of-way” as

follows: “ ‘Right-of-way’ includes license, permit, or ease-

ment, as the case may be * * *.” 43 C.F.R. § 2800.0-5(1i)

(1972).28

Appellees also argue that a revocable permit cannot be a

right-of-way because the latter term refers to an interest

in land, and licenses are not interests in land. An examina-

tion of relevant authority, however, indicates that licenses

are indeed interests in land. They may not be the kind of

interests in land that must be created in writing or recorded

to be enforced,”* or the kind of interests in land for which

% See generally 77 C.J.S. Right 393 (1952) and cases there

cited

* West v. Maryland Gas Transmission Corp., 162 Md. 298,

—, 159 A. 758, 763 (1932).

% Until 1968, another of the Bureau’s SLUP regulations

specifically provided that SLUPs will not be issued “for the

securing of rights-of-way obtainable under existing laws,”

thus implicitly recognizing that the permission granted by a

SLUP could constitute a “right-of-way.” See, e.g., 43 C.F.R.

§258.2(a) (1949). See also 43 U.S.C. § 959 (1970), which

authorizes the Secretary of the Interior to “permit the use

of rights of way through the public lands” but then further

provides that “any permission given by the Secretary * * *

may be revoked by him * * * in his discretion, and shall not

be held to confer any right, or easement, or interest in * * *

public land,” thus expressly creating a revocable right-of-way.

** See 3 R. POWELL, REAL PROPERTY {| 428 at 526.64 (1970) ;

496-857 O- 73-4

PTET er |

Sh A

Perot iad ae]

20a

compensation must be paid following condemnation for

public use,” but they are nevertheless interests in land

See 3 R. Power, Reat Property § 428 at 526.63 (1970); 2

A. Casner (ed.), American Law or Property § 8.110 at 317

(1952). The Restatement provides: “All ‘licenses,’ as the

term is used in this Chapter, are ‘interests in land’ as that

phrase is used in the Restatement of Property.” Restarts.

MENT OF Property § 512, Comment ec, at 3116 (1944). In

fact, the affidavit of an individual knowledgeable about

customary practices in the oil pipeline industry, introduced

into the record by appellees, supports the view that a grant

of permission to use land for construction purposes is a

grant of an interest in land. Thus where construction of a

pipeline takes place over privately owned property, ac-

cording to this affidavit, space necessary for construction

is “purchased or condemned * * * for the time necessary

for construction of the pipeline.” *

Appellees also make the argument that the land covered

by the SLUP will not be used for “pipe-line purposes” or

for “the transportation of oil” within the meaning of See-

tion 28. Interior argues that “[t]he temporary revocable

permits do not pertain to land to be used for the transpor-

tation of oil or natural gas.” Alyeska argues that “[i]f

one applies normal rules of construction, Congress must

have intended something by the use of the phrase ‘pipe

line purposes’ that was not synonymous with construction

and maintenance.” But we would have to stretch the statu-

2 A. CASNER (ed.), AMERICAN LAW OF PROPERTY § 8.118

(1952).

2? See 2 NICHOLS, EMINENT DOMAIN § 5.23[7] (Rohan re-

compilation 1970); 3 R. POWELL, supra note 26, at 526.64:

Sinclair Pipe Line Co. v. United States, Ct.Cl., 287 F.2d 175

(1961).

** Affidavit of Dean F. Smalley, Supporting Documents,

supra note 7, Vol. I, Tab 1 at 2.

2la

tory language totally beyond its natural meaning to con-

dude that the SLUP in this case is not being issued for

~pipe-line purposes.” As the United States Supreme Court

had occasion to note, “This Court naturally does not re-

view congressional enactments as a panel of grammarians ;

jut neither do we regard ordinary principles of English

as irrelevant to a construction of those enactments.”

Flora v. United States, 362 U.S. 145, 150 (1960). It simply

makes no sense to insist on the one hand, as all parties do,

that use of this land is absolutely necessary if the pipeline

is to be built and oil to he transported, and to claim on

the other hand that the land will not be used for pipeline

or for the transportation of oil. One of the fune-

tions of statutory rights-of-way is to allow room for con-

struction activities.” Indeed, the Bureau's own contempo-

raneous interpretation of Section 28 stated that the purpose

of the right-of-way was for “construction, maintenance,

and operation of the pipe line.” 47 Int. Dept. Dee. re Pub.

Lands 437, 461 (March 11, 1920).*

It is also argued that the statutory requirement of com-

pliance with “the provisions, limitations, and conditions”

of Section 28 is concerned solely with the condition that

pipelines be common carriers. While it is clear that the

* See, e.g., United States v. Great Northern Ry Co., D.

Mont., 32 F.Supp. 651, 654 (1940), affirmed, 9 Cir., 119 F.2d

821 (1941), modified on other grounds, 315 U.S. 262 (1942):

“Many definitions have been given * * * of the term ‘right of

way’ but the consensus of opinion seems to be that it means

exactly what the words imply, that is to say, the right to use

the grant of right of way for the purpose of constructing,

maintaining, and operating a railroad thereon.” (Emphasis

added.)

® The legislative history indicates that the phrase “for the

transportation of oi! or natural gas” was added to the statute

solely to ensure that the statute did not govern pipelines for

water and artificial gas. See 51 Conc. Rec. (Part 15) 15419

(1914).

oo EE soe er ree Sn

Pet SIT OPENS IT

Sat ha

common carrier provision was one of Congress’ chief con-

cerns, nevertheless the statutory language plainly bars

pipeline right-of-way which does not comply with all “pro.

visions, limitations, and conditions,” including limitation

of the right-of-way to 25 feet.

In conclusion, under a literal reading of Section 28 the

proposed SLUP is a “right-of-way” “for the transportation

of oil” which is not “subject to” one of “the provisions,

limitations, and conditions” of Section 28. Of course, we

cannot end our inquiry with this simplistie and literal ap-

proach.” On occasion we have paid lip service to the rule

that where the language of a statute is clear and unam.

biguous on its face it cannot be controverted by seeking

to show inconsistent legislative intent, see Sea-Land Serp-

ice, Inc. v. F.M.C., 131 U.S.App.D.C. 246, 250, 404 Fda

824, 828 (1968), but we have also faced up to the reality

that “the ‘plain meaning’ doctrine has always been sub-

servient to a truly discernible legislative purpose however

discerned,” District of Columbia v. Orleans, 132 U.S.App.

D.C.139, 141, 406 F.2d 957, 959 (1968). Regardless of how

plainly we might feel the SLUP is barred by the literal

terms of Section 28, we must respond to what seems to us

to be the crucial contention in the Mineral Leasing Aet

aspects of this case. All parties agree that it is impossible

to build large-diameter oil pipelines if construction is to be

limited to 25 feet on either side of the pipeline. Appellees

then argue that Congress must have intended Section 28

to include all those uses of land necessary to secure the cen-

tral objective of allowing pipeline construction. Absent

any other indication of what Congress in fact intended,

*! See Malat v. Riddell, 383 U.S. 569, 571-572 (1966) ; CLR.

v. Brown, 380 U.S. 563, 571 (1965) ; Lynch v. Overholser, 369

U.S. 705, 710 (1962) ; Salt River Project Agr. Impr. & Power

District v. F.P.C., 129 U.S.App.D.C. 117, 121, 391 F.2d 470,

474, cert. denied, 393 U.S. 857 (1968).

ae RE OTL Ne an

€

23a f

gttled maxims of statutory construction would probably

ad us to accept this inference about congressional in-

tent. Cf. United States v. State of Maryland for Use of

Meyer, 121 U.S.App.D.C. 258, 260, 349 F.2d 693, 695 (1965).

There is a presumption against construing a statute so as

~o render it ineffective. Bird v. United States, 187 U.S. 118,

194 (1902) ; United States v. Blasius, 2 Cir., 397 F.2d 203,

ot n.9 (1968), cert. dismissed, 393 U.S. 1008 (1969);

Cnited States v. Milk Distributors .Assn, Inc., D. Md., 200

FSupp. 792, 799 (1961); Zn re White, N.D. N.Y., 266 F.

Supp. 863, 866 (1967). But conjecture and inference about

the central purposes of Section 28 and what Congress “must

have intended” are not necessary in this case, for we have

frmer evidence of what Congress did in fact intend when

it enacted the width limitation of Section 28, and it is to

this legislative history that we now turn.

(. Legislative History of Section 28.

The Mineral Leasing Act of 1920, of which Section 28

is but a small and relatively minor part, was not the prod-

ut of a single Congress. Other versions of the Act, sub-

stantially similar to the one finally adopted and containing

provisions virtually identical with what is now Section

®, were introduced, reported out of Committee, and de-

hated on the floor of Congress as early as 1914. See H.R.

16136, 63rd Cong. (various prints) (1914); H.R. 406, 64th

Cong. (various prints) (1915-16); H.R. 3232, 65th Cong.

(various prints) (1917); S. 2812, 65th Cong. (various

prints) (1918). The legislative history of the bill that was

fnally enacted into law as the Mineral Leasing Act of

19%, S. 2775, 66th Cong., 2d Sess. (1920), contains no

discussion of the width limitation, in either the reports,

the hearings, or the floor debates. The legislative history

of similar bills in prior Congresses, however, is very re

vealing. Cf. United States v. Plesha, 352 U.S. 202, 205

COPY BOUND CLOSE IN CENTER

(1957) ; United States v. Blasius, supra, 397 F.2d at 205-

206.

As originally drafted Section 28 provided, not for 5

feet on either side of the pipeline, but for only 10 feet

See H.R. 16136, 63rd Cong., 2d Sess., § 17 (April 29, 1914).

The bill was referred to the House Committee on Public |

ands and was reported therefrom with an amendment |

that would substitute “twenty” for “ten.” See ILR. 16136,

63rd Cong., 3d Sess., § 11 (February 2, 1915). When next

introduced into Congress, the section again provided for

only 10 feet. See H.R. 406, 64th Cong., Ist Sess., § 18 (De-

cember 6, 1915). When this bill was reported from the

House Committee on Publie Lands, however, the width lim.

itation provision was amended to change “ten” to “twenty-

five.” See H.R. 406, 64th Cong., Ist Sess., § 13 (January

4, 1916). The bill was sent back to Committee again, and

when reported the width limitation had been changed once

more, this time from “twenty-five” to “twenty.” See HLR.

406, 64th Cong., Ist Sess., §11 (March 30, 1916). When

introduced in subsequent Congresses, however, and when

reported from Committee and debated thereafter, the width

limitation remained at 25 feet. See H.R. 3232, 65th Cong,

§ 13 (various prints) (1917); S. 2812, 65th Cong., 2d Sess.,

$13 (May 14, 1918); S. 2775, 66th Cong., Ist Sess., § 27

(August 15, 1919) ; S. 2775, 66th Cong., Ist Sess., § 28 (Oc.

tober 21, 1919). This legislative history indicates that

Congress placed some significance on the exact figure

chosen. The number “twenty-five” was not pulled out of

thin air, but was resolved upon after apparently careful

deliberation. In view of the significance Congress seemed

to place on the exact figure chosen, it seems unreasonable

to conclude that Congress intended the interpretation put

forth by appellees in these cases, for under that interpre-

tation it is irrelevant whether the statute permits 10, 20

or 25 feet. If the statute allows one to use any land reason-

ably necessary to build a pipeline, what purpose is there

Pe TEI TEER DPOLEI IG

npnanerlCUrre . hlC Or Ane ere ee ae ee. ee

25a

in choosing 25 feet rather than 10? Cf. United States v.

Blasius, supra, 397 F.2d at 207.

It is a well known maxim of statutory construction that

ll words and provisions of statutes are intended to have

meaning and are to be given effect, and words of a statute

gre not to be construed as surplusage. See McDonald v.

Thompson, 305 U.S. 263, 266 (1938) ; D. Ginsberg & Sons,

Inc. v. Popkin, 285 U.S. 204, 208 (1932) ; K lein v. Republic

Steel Corp., 3 Cir, 435 F.2d 762, 765-766 (1970) ; Consoli-

dated Flower Shipments, Inc.—Bay Area v. C.A.B., 9 Cir.,

95 F.2d 449, 450 (1953). We should be particularly mind-

ful of this maxim in cases such as these where there is

specific evidence that Congress placed significance on the

statutory language in dispute.

More than the bills themselves, the debates in the House

of Representatives * indicate that Congress intended all

construction work to take place within the width limita-

tion of the statute. As noted earlier, the first predecessor

of Section 28 provided for only 10 feet. When this pro-

vision was first. put before the House, Mr. Mondell, a Rep-

resentative from Wyoming who continued to play an

active role in the debates throughout the history of Section

98, proposed an amendment to be added to the provision:

“Provided, That nothing herein contained shall be

held to repeal the provisions of the act approved May

91, 1896, entitled ‘An Act to grant right of way over

the public domain for pipe line in the States of Colo-

rado or Wyoming,’ but all pipe lines built under the

provisions of that act shall be common carriers.” *

The act referred to in the proposed amendment is still

codified at 43 U.S.C. § 962 (1970), although the legislative

The debate on the floor of the Senate never discussed

the width limitation.

%51 Conc. Rec. (Part 15) 15418 (1914).

COPY BOUND CLOSE IN CENTER

26a

history of Section 28 makes it questionable whether it js

still in force.“ It provides: :

“The right of way through the public lands of the

United States situate in the State of Colorado and in

the State of Wyoming * ° ° is granted to any pipe.

line company or corporation formed for the purpose

of transporting oils * * * to the extent of the

occupied by said pipe line and twenty-five feet on each

side of the center line of the same; also the right to

take from the public lands adjacent to the line of said

pipe line, material, earth, and stone necessary for

the construction of said pipe line.”

Mr. Mondell supported his amendment as follows:

“The pipe lines that are really important, so far as

the question of right of way is concerned, are the great

carrying lines. There have already been two, over 60

miles long each, constructed in my State under the act

that I have referred to. I think one of them cost $600,

000. I do not know how much the other cost. Such

lines are large. They are very expensive. * * * The

provisions of this section are not sufficiently liberal

to allow the construction of one of these great lines.”*

Congressman Mondell was asked whether a total space of

% Mr. Ferris, the man who introduced H.R. 16136 (and

many of the later versions of the Mineral Leasing Act) into

Congress, had asked the Department of the Interior to com-

ment on whether the bill would repeal the Act of May 21,

1896. The Department said that it would, if enacted, “pre

clude the department from in future allowing any pipe-line

right-of-way applications under the provisions of the said

act of May 21, 1896, supra, because it provides an exclusive

method for the granting of rights of way for pipe lines over

the public lands of the United States, and further stipulates

that no right of way shall be hereafter granted over the pub-

lic lands for the transportation of oil or gas except under the

provisions, limitations, and conditions of the section.” Id.

at 15418-15419. See also 56 Conc. REc. (Part 7) 7097 (1918).

3551 ConG Rec. (Part 15) at 15418.

27a

0 feet was not sufficient room in which to construct a pipe-

line. He responded:

“No; it is not wide enough to construct one of these

great lines over a rough country. The width is not

great enough, and there is no opportunity to get the

necessary material from the adjacent lands. * * *” *¢

Representative Taylor of Colorado said he believed the

amendment offered by Mondell was a good one for, in his

words,

«e © © T regret to see this law, which is applicable

to the States of Colorado and Wyoming alone, thus

wiped off the statute hooks, because it has heen a good

law and nobody has ever complained of it. It is a bet-

ter law than this one. * * *” *

put he said he would not support the amendment because

he did not believe in special legislation for one or two

states. He concluded: “I feel that if this proposed law

works all right we can operate under it in our State, and

if it does not, then we hope to come hack here some time

and amend it.”** During later debate on the provision,

Taylor specifically referred to the views of the House

Committee on Public Lands on this matter:

«* © * T think that law [Section 962] ought to be in-

serted in this bill in lieu of section 17, but at the same

time the committee has taken a different view, and T

am not disposed to quarrel with the committee about

the matter. * * * I think the provisions of this section

in the bill, the same as some other sections, should he

more liberal. But T have expressed myself on this bill

at great length in my minority report and in my speech

on the hill, and T will therefore not offer any special

opposition to this section at this time.” *

*Id. at 15420.

* Ibid.

% Ibid.

* Id. at 15421.

LU RYE OES, sell

PPR yt oP

—-.

28a

A vote was then taken on the proposed amendment and it

was defeated.

Realizing that to some extent the opposition to his pro.

posal was based on a desire not to have special legislation

for any states, Representative Mondell immediately intro.

duced another amendment, the effect of which would be to

change the width limitation to read “to the extent of the

ground occupied by said pipe line and 25 feet on each side

of the center of line of the same; also the right to take

from the public lands adjacent to the line of said pipe line

material, earth, and stone necessary for the construction

of said pipe line.” *° Again Mondell justified his proposed

amendment:

«* © © First, the provisions of this section [as orig-

inally drafted] are not liberal enough to enable peo-

ple desiring to do so to construct the great carrying

pipe lines which we are attempting to provide for.

length. The two that have been constructed in my

State so far are each some sixty-odd miles in length.

A line is now under contemplation which will be much

longer than either of those lines. Eventually, we will

have to cross the State, and probably cross a large

portion of the State of Colorado with a main pipe

line. At least 50 feet right of way is needed, and op-

portunity to use material on either side is needed to

make the construction of these pipe lines practicable.

ee#

«“* ® © The section as it stands will not do at all.

That is clear in the first place, and it does not give the

intending builder of pipe lines the space that he needs

and the material that he needs. * * *” *

A vote was then taken on Mondell’s second proposal and it

was defeated.

4° Ibid.

“1 Td. at 15421-15422.

29a

As noted earlier, when next introduced into Congress as

of H.R. 406, the width limitation again provided for

only 10 feet. Mr. Mondell expressed his apprehensions

and summarized the views of Congress once more:

«“* * * The provisions of this section are very il-

liberal. They are not sufficient to give fair opportunity

for the building of large pipe lines such as are essen-

tial to a large oil business. IT wish it were possible to

amend it * * *. That is evidently impossible from the

present attitude of the committee, and I realize that

no amendment would be favorably received liber-

alizing this section, therefore I offer none.” *

As later versions of H.R. 406 indicate, however, Repre-

sentative Mondell was eventually successful in getting one

of the amendments he wanted. When the section came

out of Committee, “ten” was changed to “twenty-five”

where it remained, with one exception already noted,

throughout the period until enactment of the Mineral Leas-

ing Act in 1920. Although the Committee did finally agree

to enlarge the width allowance, Mondell was apparently

unsuccessful in obtaining any amendment that would, in

the manner of 43 U.S.C. § 962, allow one to go outside the

right-of-way to obtain materials necessary for pipeline

construction.

This legislative history indicates first that Congress

agreed with Representative Mondell’s position that the

width limitation restricted all construction activities. By

recognizing that a change from 10 feet to 25 feet was nec-

essary, Congress was implicitly accepting the view that

Mondell put forth. Secondly, Congress was offered an

amendment that would modify the width limitation so as

to expressly provide that one could go outside the statu-

tory right-of-way where necessary for construction pur-

poses and, as noted earlier,** it had heen told by the hill’s

53 Conc. Rec. (Part 2) 1095 (1916).

* See note 34 supra.

30a

sponsor that enactment of the bill would repeal a pre-exist.

ing statute that contained such an express provision. Con.

gress voted down the amendment, however, clearly indj-

cating its desire to restrict construction to the statutory

right-of-way.“ Finally, the history indicates that Congress

had been warned that the future was going to bring larger

and larger pipelines, and that the statutory right-of-way

was going to prove insufficient to allow construction of

these lines. But rather than exercise what we might now

call reasonable foresight, foresight which the Congress did

exercise on other similar occasions,* the Congress did not

44 We have, in the past, recognized that it is hazardous to

draw conclusions from congressional inaction. See National

Automatic Laundry & Cleaning Council v. Shultz, 143 US.

App.D.C. 274, 291, 443 F.2d 689, 706 (1971). In that case,

however, we noted a distinction between the mere silence that

accompanies “proposals languishing without any Congressional

action” and “positive action by Congress rejecting the * * *

amendments.” Jbid. In the present case we can confidently

place some significance on congressional rejection of the pro-

posed amendment that would allow going outside the statutory

right-of-way where necessary for construction purposes. The

Supreme Court has said that the reason for not drawing in-

ferences from congressional failure to adopt an amendment is

that “[llogically, several equally tenable inferences could be

drawn from the failure of the Congress to adopt an amendment

* * * including the inference that the existing legislation al-

ready incorporated the offered change.” United States v.

Wise, 370 U.S. 405, 411 (1962). But in the present case

we cannot draw the inference that the existing legislation

already incorporated the proposed change; Congress’ at-

tention had been drawn to a prior act containing the pro-

posed change, and Congress was told that the bill, as drafted,

would repeal the provisions of that prior act.

“Compare Alaska Right of Way Act of May 14, 1898,

30 StaT. 409, 43 U.S.C. § 942-1 (1970) (granting 100-foot

rights-of-way for railroads in Alaska, but also providing for

the “right to take from the lands of the United States adjacent

to the line of said road, material, earth, stone, and timber

necessary for the construction of said railroad” and providing

AS RE LTE AE AT cn EN an

3la

attempt to provide for the future by giving the Secretary ;

‘| ofthe Interior express authority to allow use of any amount F

of land reasonably necessary for construction. The ap-

parent attitude of Congress was best exemplified by Rep-

resentative Taylor of Colorado who, because of the state he

represented, was very concerned with the effect of the pro-

| posed statute on pipeline construction. As quoted earlier,

' Jaylor’s position was that if the new law was not adequate,

“then we hope to come back here some time and amend it.”

' Thus though Congress seemed to be aware that the width

limitation might be, or might in the future prove to be,

insufficient, the remedy suggested was not to plan for the

future but rather to tell the industry to come back to Con-

gress if these fears were borne out by actual practice under

the Act.

The final chapter in the legislative history of Section 28

was the dehates on H.R. 3232, 65th Cong. Despite the ap-

parent acquiescence of Congress in Mondell’s amendment

to 25 feet, Representative Chandler of Oklahoma attempted

toamend the limitation back to 10 feet.

for the “right to use such additional ground as may in the

opinion of the Secretary of the Interior be necessary where

there are heavy cuts or fills * * *”); Act of March 2, 1899,

30 StaT. 990, as amended, 25 U.S.C. § 313 (1970) (pro-

viding a 50-foot right-of-way for railway, telegraph and tele-

phone lines through Indian reservations, but allowing use of

100 feet “where there are heavy cuts and fills * * *”); Act

of March 11, 1904, 33 StaT. 65, as amended, 25 U.S.C. § 321

(1970) (providing for rights-of-way through Indian reserva-

tions for oil and gas pipelines, and expressly granting the Sec-

retary of the Interior authority to “grant temporary permits

revocable in his discretion for the construction of such lines

***"); Act of Aug. 1, 1946, 68 STAT. 921, as amended, 42

US.C. § 2201 (1970) (authorizing the Atomic Energy Com-

mission to grant rights-of-ways across lands under its control

for railroad, pipeline and other purposes, limited to that

amount of “land [that] is reasonably necessary for the purpose

for which granted”).

COPY BOUND CLOSE IN CENTER

Me 2 FE ge

32a

“Mr. CHANDLER of Oklahoma. Mr. Chairman, I

see no reason for granting a right of way for a pipe.

line company of this magnitude. There is no reason

in the world why a pipe line should have any more

right of way than a railroad company, and most of

the railroads in this country only have 50 feet right

of way. This bill provides that the pipe lines shal]

have a grant of the land occupied by the pipe line

a then an additional 25 feet on each side of the pipe

ine.

“Now, this is entirely too much ground to give to

any pipe-line company. As everybody knows, most

of the railroads of the United States have only 50 feet

of right of way—they have to make grades, and so

forth—but a pipe line only takes up 12 or 16 inches,

making no grade, simply digs ditches, goes over the

hills and down again, and the Government ought not

to give a pipe-line company this amount of land.

* *. * €

“Mr. TAYLOR of Colorado. Mr. Chairman, I infer

that my good friend from Oklahoma has never lived

in a mountainous country. In a mountainous or

rough and broken or hilly country pipe lines are

sometimes buried on side hills or gulches, sometimes

on high tresties, and on all kinds of ground, and

people have to go up and down the lines to mend

breaks in and repair the pipe line, and for various

reasons, and you can not drive teams or haul material

on a 10-foot strip of ground through that kind of

country. The use of it is merely an easement, subject

to such rules and regulations as may be prescribed

by the Secretary of the Interior. These regulations

will not prevent the ground from being used, if the

ground is such that it ever can be used for anything;

that is, if a pipe line runs over any land that anybody

ever wants. It is only public land that has been here-

tofore deemed worthless. If the lands over which a

pipe line will run were any good they would be in

private ownership long ago. It is only the rough, arid

land that nobody wants which is now open for settle-

ment. If merely an easement over a right of way is

given, and only temporarily, for the occupation by a

pipe line, subject to such rules and regulations as the

Secretary of the Interior will prescribe, the Govern-

ment is not going to be hurt any by allowing the

owner to use for that purpose only a strip of ground

25 feet wide on each side of the center of the pipe

line, and I hope the gentleman’s amendment will be

defeated.

“e * * Mr. Chairman, owing to the very great

shortage of oil, the very great consumption in excess

of production, I assume that every Member of this

House is very much in favor of oil development.

With a shortage of 60,000,000 barrels this year, every

patriotic citizen should be in favor of any fair law

that will encourage oil development, and if this House

is in favor of oil development there is certainly no

reason for handicapping it by any more restrictions

than are already in this bill. I may say that there is

not a western Member of this House, certainly none

from the States to which this legislation will apply,

who is satisfied with this bill. It is much more drastic

than we feel it ought to be. It will not bring about the

development that the country needs and would get

under a more liberal bill. At the same time we have

agreed to accept this bill as the best we can get, and

for that reason have not filed a minority report.

“Mr. RAKER. * * * Here is an act granting the

right to establish pipe lines in Colorado, giving a right

of way of 25 feet on each side. That is the law now.

“Mr. TAYLOR of Colorado. Yes; that is the Colo-

rado and Wyoming act, and expressly grants 25

feet on each side. People can neither build or [sic]

maintain a pipe line on less than that width in that

country. There is no use of requiring impossibilities or

restricting development by utterly impracticable re-

strictions and limitations that neither do the Govern-

ment or [sic] anyone else any good.

“* * * My dear sir, to build and maintain a pipe

line you have got to have more than just the actual

ee |

™

Se ERS we EY

34a

land that the pipe rests on. You have got to have a

wagon road to transport the material, you have

often got to take earth and rocks from the side of the

right of way, and so on. A trestle supporting a pipe

line may be 50 feet wide at the foundation. re is

no earthly use of preventing construction or

ling people to come back to Congress again to get a

sensible law.

“When the Secretary of the Interior is given the

complete control of this right of way, that is sufficient;

and I hope the amendment will not be adopted, because

it is entirely inadvisable, absolutely impracticable, and

utterly unnecessary. It can not be made to work out.

Pipe-line owners would be compelled to go out and

buy land adjoining every right of way or obtain from

the Government an additional grant. This provision

ought to be more liberal than it is. * * *

“Mr. NORTON. * * * [DJoes not the gentleman

know, as a matter of fact, that the width of the right

of way granted to the railroads has been found by

— experience to be altogether too great in the

estern States?

“Mr. TAYLOR of Colorado. The 400-foot right of

way granted to the Union Pacific was more than was

necessary, especially on level ground for nearly a

thousand miles; but in no place where there is rough

ground has the 100-foot right of way been too wide or

been curtailed

“Mr. NORTON. I am sure it is the consensus of

opinion of the people in the Central West that the right

of way of 100 feet on each side granted to the Northern

Pacific and the Great Northern Railway through

Minnesota, North Dakota, and Montana is altogether

too wide.

“Mr. TAYLOR of Colorado. On level farm land I

think that is true. I think those railroads got a large

amount of good land that they did not need and had no

right to; but we are not asking for any good land or

any land that we do not need.

eed

Sule SS OS et ee ote Se a nm naaia

“Mr. MONDELL. Mr. Chairman, there is now on

the statute books an oil pipe-line law, applying to

Wyoming and Colorado, which grants an easement

of 25 feet on each side of the pipe line.

“Mr. RAKER. Will the gentleman yield to me for

a question right there?

“Mr. MONDELL. This section will repeal that law,

which is in many respects much more liberal than this

provision is, so we are putting in this law a provision

much less liberal than the present law.

“Mr. RAKER. Will the gentleman yield for a ques-

tion? The provision of law which the gentleman refers

to is more extensive than this one, and reads as

follows—

“Mr. MONDELL. I introduced that bill. I know

something about it. If we secure the development of oil

on the public lands, which we hope for under this bill,

long pipe lines will have to be built, and they will have

to be built over a rough country. In many cases they

will have to be carried on trestles and at elevations

that will require a great spread of the trestle at the

base. In many cases they will have to he built along

sloping hillsides and mountain sides, and the width of

50 feet is none too great. The land that these pipe

lines will run over in the main are [sic] of but little

value, and all that is granted is an easement for the

use of the pipe lines. No one in the operation of one

of these pipe lines cares to have any more land than is

absolutely essential for the maintenance of the pipe

lines, but unless you grant enough so that the building

of the pipe line can proceed and material can be ob-

tained for the building of the pipe line, you hamper

this very great development.

7 . > >.

“Mr. RAKER. Since looking through this Colorado

and Wyoming act T find this provision in it that is not

in this bill—

“Mr. MONDELL. It authorizes the taking of mate-

rial.

“Mr. RAKER. Yes.

>... EE EE Or OO MEE PSPS 3 |

36a

“Mr. MONDELL. Which this bill does not, ang

which on two different occasions I have endeavored

to have the committee adopt, but having promised the |

chairman not to offer amendments I did not offer jt

on this occasion, though that provision ought to be in

the bill. ;

“Mr. RAKER. Let me read it to the gentleman:

Also the right to take from the public lands

adjacent to the line of said pipe line material,

earth, and stone necessary for the construction of

said pipe line.

“Mr. MONDELL. I hope the gentleman will offer

that amendment to this section.

“Mr. CHAIRMAN. All time has expired. The ques-

tion is on the amendment offered by the gentleman

from Oklahoma.

“The amendment was rejected.” “

The debate indicates that the participants assumed that

all construction had to take place within the width limita.

tion of the statute. As noted earlier, any dispute between

10 feet and 25 feet becomes meaningful only if construction

is limjted to the statutory right-of-way. Opponents of the

10-foot limitation clearly state that were that amendment

adopted it would be impossible to construct or maintain

large pipelines, a result which would net obtain were we to

adopt appellees’ position in this case. Proponents of oil

pipeline development again admitted that even as amended

—that is, even with a 25-foot width allowance—the bill was

not as liberal as it should be because it lacked the provision

allowing one to go outside the statutory right-of-way where

necessary for construction. But, as Representative Taylor

stated, “[W ]e have agreed to accept this bill as the best we

can get * * *.” More importantly, the debate provides

answers to some of appellees’ key arguments. They con-

tend that to interpret the statute to restrict construction to

** 56 Conc. Rec. (Part 7) 7096-7098 (1918).

37a

ihe statutory right-of-way is to frustrate the purpose of the

Yineral Leasing Act, to presume that the legislature

intended to have done a futile thing, and to reach a result

that is unreasonable, absurd and ridiculous. But the legis-

itive history indicates that at the time the Mineral Leasing

4et was passed Congress thought it was possible to build

the then largest pipelines—which, according to Represen-

tative Chandler, were 12 to 16 inches wide—within the

- statutory right-of-way.’ Finally, the debates indicate the

rason Why Congress was so strict with the right-of-way.

“ Appellees also suggest that Congress’ belief that the sta-

tutory right-of-way was sufficient for construction of pipe-

ines was mistaken even in 1920—.e., that in 1920 it was im-

possible to construct the then largest oil pipelines within the

gatutory right-of-way. Even were this the case, however,

it would be a matter for Congress, not this court, to correct.

Congress was told that it might be hindering oil pipeline de-

velopment, and it chose to do nothing about it except say that

if that were the case the oil companies should come back and

try to get a more liberal law. Moreover, there is insufficient

proof in this case that Congress was wrong in assuming that

% feet on either side of the pipeline was sufficient. As in-

- dicated-in- Representative Chandler’s remark, Congress as-

sumed it was providing for pipelines of up to about 12 to

16 inches. All the available extrinsic evidence indicates that

this was in fact the largest size technologically feasible back

ip 19320. Even as late as 1940, pipelines were normally from

2to 12 inches in diameter. See Finney, Oil Pipe-Line Trans-

portation, in E. DEGOLYER (ed.), ELEMENTS OF THE PETRO-

tguM INDUSTRY 310 (1940). The revolutionary “Big Inch”

and “Little Big Inch” pipelines constructed for wartime in-

dustrial purposes during World War II were 24 inches and

20 inches respectively in diameter. See G. WOLBERT, AMER-

IcAN PIPE LINES 10 n.40 (1951). Congress was thus apparent-

ly correct in its assumptions about the then largest size of

pipelines. And there is simply no evidence in this case proving

that Congress was incorrect in its other assumption that 25

feet on either side was sufficient for these small pipelines,

given pipeline construction methods then in use. =

RT RIN 208 oneny

PI TESTES SAS PRS EA oo Ae a |

38a

Congress felt that in the past, when granting rights-of.

way to railroads, it had been much too generous in givi

away valuable public lands, and it did not want this to be

repeated.

Of course, attempting to place too much emphasis op

bits and shreds of legislative history is often a hazardous

process. See United States v. O’Brien, 391 U.S. 367, 383.

384 (1968). We note that in this instance we deal with a

debate that engaged but a few members of one house of

Congress, a Congress that was not even the one that even.

tually passed the Mineral Leasing Act of 1920.*° But there

appears to be no reason for not accepting this history for

its obvious import. This is not a case where legislative

history is being used to contradict the natural or literal

reading of an act. Compare St. Marys Sewer Pipe Co. v.

Director of U.S. Bureau of Mines, 3 Cir., 262 F.2d 378

(1959). Instead, it is being used to support the literal

reading. This is not a case where opponents and propon-

ents characterized the provisions of the act differently.

They disagreed as to what was a proper width limitation,

but they all agreed that the width limitation applied to the

construction area. See First Nat. Bank of Logan v. Walker

Bank & Trust Co., 385 U.S. 252, 261 (1966); United States

v. City € County of San Francisco, 310 U.S. 16, 22 (1940).

Nor is this a case where we must confront mere attempts

to amend the statute, without discussion about the signif-

cance of such amendments. Cf. National Automatic Laun-

dry & Cleaning Council v. Shultz, 143 U.S.App.D.C. 274,

291, 443 F.2d 689, 706 (1971). The function of the width

limitation is readily apparent from the debates.

48 Cf. Foti v. Immigration & Naturalization Service, 375

U.S. 217, 225 n.11 (1963); D.C.. Federation of Civic Assns,

Inc. v. Volpe, 140 U.S.App.D.C. 162, 171, 434 F.2d 436, 445

(1970) ; United States v. Matthews, 136 U.S.App.D.C. 196,

201 n.9, 419 F.2d 1177, 1182 n.9 (1969).

39a

The main lesson of this legislative history is that the

presumptions upon which our maxims of statutory inter-

pretation are built are not always borne out. These pre-

sumptions, like most others in the law, are rebuttable. And

vhile our maxims of statutory construction might have led

ys to conclude that Congress “must have intended” that

those building pipelines could make use of land outside the

statutory right-of-way for construction purposes, the legis-

lative history simply indicates otherwise. One might have

expected the Congress of the United States to exercise

_ foresight in a situation in which it was expressly warned

that the statute it was enacting was then, or might in the

future become, ineffective. But such foresight was notably

lacking. Foresight no doubt would have been the wisest

choice in this instance, since after the passage of the

Mineral Leasing Act pipeline technology developed to

permit construction of larger pipelines needing greater

amounts of construction space. It might fairly be said that

Congress overeacted to the prior excesses of railroad

rights-of-way. But it is not our function, when we pass on

either the constitutionality of statutes or their interpreta-

tion, to substitute our opinion as to what is wise for that

of Congress. Cf. Tidewater Oil Co. v. United States,

Ts. —, . 41 U.S. L. Week 4053, 4059 (December 6,

1972); Dandridge v. Williams, 397 U.S. 471, 487 (1970).

Congress chose not to be foresightful; it chose to retain

control of the width of pipeline rights-of-way over public

land itself, and that decision and its consequences must

stand until Congress chooses otherwise.

* A bill recently introduced into the United States Senate,

with the support of the Department of the Interior, would,

inter alia, amend § 28 so as to do away with the width limita-

tion and allow use of any land reasonably necessary as deter-

mined by the Secretary of the Interior. See Mineral Leasing

Bill of 1971, S. 2726, 92nd Cong., 1st Sess. (Oct. 20, 1971).

See also 117 Conc. REC. S16611 (daily ed. Oct. 20, 1971).

TEN 8 NN RC COR REET MR NS |S fo Se INU RN

ED DR «a eg

40a

D. Administrative Construction of Section 28.

Appellees have placed their primary reliance on the

administrative practice with respect to SLUPs. While we

find it unnecessary to review the administrative history in

great detail, looking at that history in the light most fay.

orable to appellees it indicates (1) that ever since the

Mineral Leasing Act was passed the informal policy of the

Bureau of Land Management has been to permit those

constructing pipelines to use land for construction Purposes

outside the statutory right-of-way; (2) that since 1960 this

informal practice has begun to become formalized through

the procedure of granting SLUPs for construction space to

supplement the statutory right-of-way; and (3) that the

Department of the Interior and other agencies have granted

SLUPs for a multitude of purposes other than pipeline pur.

poses for the last 100 years, oftentimes in situations where

the SLUP “supplemented” a limited statutory right-of-way.

Appellees argue that this administrative practice should be

accorded great weight and deference in the interpretation

of the effect of Section 28 on SLUPs for construction pur-

poses, and should lead us to conclude that Section 28 does

not affect the Secretary's authority to issue SLUPs.

Before discussing the administrative history of SLUPs

any further, it would be best to state at the outset our

general approach to the area of executive interpretation

of statutes. We do not question the settled principle that

administrative interpretations of statutes are entitled to

great weight. See Zuber v. Allen, 396 U.S. 168, 192-193

(1969) ; Volkswagenwerk Aktiengesellschaft v. F.M.C., 3%

U.S. 261, 272 (1968); Udall v. Tallman, 380 US. 1, 16

(1965). But it is our firm belief that a line must be

5° See also Red Lion Broadcasting Co. v. F.C.C., 395 US.

367, 381 (1969); Zemel v. Rusk, 381 U.S. 1, 11 (1965); Power

Reactor Development Co. v. Int. U. of Elec., Radio & Mach.

Wkrs, 367 U.S. 396, 408 (1961); Trans World Airlines, Ine.

4la

drawn between according administrative interpretations

deference and the proposition that administrative agencies

gre entitled to violate the law if they do it often enough.

Not to draw this line is to make a mockery of the judicial

function. “(T]he courts are the final authorities on issues

of statutory construction * * * and ‘are not obliged to

stand aside and rubber-stamp their affirmance of adminis-

trative decisions that they deem inconsistent with a statu-

tory mandate or that frustrate the congressional policy

underlying a statute.’ * * * ‘The deference owed to an

expert tribunal cannot be allowed to slip into a judicial

inertia. . . .” Volkswagenwerk <Aktiengesellschaft v.

FMC., supra, 390 U.S. at 272. Administrative construc-

tion of a statute “is only one input in the interpretational

equation.” Zuber v. Allen, supra, 396 U.S. at 192. A court

should not “abdicate its ultimate responsibility to construe

the language employed by Congress,” id. at 193, but rather

should defer to an administrative construction only if there

are no “compelling indications that it is wrong.” Red

Lion Broadcasting Co. v. F.C.C., supra, 395 U.S. at 381.

It has a duty to ignore that construction should it deter-

mine that it is “in conflict with the plain intent of the legis-

lature.” Brhd of Railroad Trainmen v. Akron & Barberton

Belt R. Co., 128 U.S.App.D.C. 59, 90, 385 F.2d 581, 612

(1967), cert. denied, 390 U.S. 923 (1968).** “Administrative

v. CAB., 128 U.S.App.D.C. 126, 138, 385 F.2d 648, 660

(1967), cert. denied, 390 U.S. 944 (1968) ; Johnson v. Britton,

110 U.S.App.D.C. 164, 168, 290 F.2d 355, 359, cert. denied,

368 U.S. 859 (1961) ; Savoid v. District of Columbia, 110 U.S.

App.D.C. 39, 40 n.5, 288 F.2d 851, 852 n.5 (1961); Born v.

Allen, 110 U.S.App.D.C. 217, 223 n.11, 291 F.2d 345, 351 n.11

(1960); Anderson v. McKay, 94 U.S.App.D.C. 11, 19, 211

F.2d 798, 806, cert. denied, 348 U.S. 836-837 (1954).

5%! See also United States v. City & County of San Francisco,

310 U.S. 16, 31-32 (1940) ; United States v. Finnell, 185 U.S.

236, 244 (1902); R. V. McGinnis Theatres & Pay T.V., Inc.

i. a ae o> ET

or - ~~ Te Re ONES Pr <r te SE ee ee =

42a

interpretations are not absolute rules of law which must

necessarily be followed in every instance, but are only help.

ful guides to aid courts in their task of statutory construe.

tion.” Sims v. United States, 4 Cir., 252 F.2d 434, 438

(1958), affirmed, 359 U.S. 108 (1959). Judge Hand sum-

marized the principle very succinctly when he said, “(In

the end, after whatever reserve, upon the courts rests the

ultimate responsibility of declaring what a statute means

°° *." Fishgold v. Sullivan Drydock & Repair Corp., 2

Cir., 154 F.2d 785, 790, affirmed, 328 U.S. 275 (1946). An

administrative practice which is plainly contrary to the leg.

islative will may be overturned no matter how well settled

and how long standing. See, e.g., Baltimore & Ohio R. Co. v.

Jackson, 353 U.S. 325 (1957) (overruling administrative

practice of 60 years’ duration); United States vy. E. 1.

duPont de Nemours & Co., 353 U.S. 586 (1957) (overruling

administrative practice of 40 years’ duration).

Balancing the maxim of deference to administrative in.

terpretations with the principle that the courts remain the

final arbiter of the meaning of the law is unquestionably a

difficult process. It would seem, however, that a sensible

way of meeting this task would be to analyze the rationales

behind the doctrine of deference and to ask if they apply

in this case. For if they do not, the maxim of deference

must inevitably bow before the principle of judicial sv-

premacy in matters of statutory construction. Application

of that methodology to the instant case leads us to conclude

that “[t]hose props that serve to support a disputable

administrative construction are absent here.” Zuber y.

Allen, supra, 396 U.S. at 193.

Perhaps the primary rationale behind the doctrine of

v. Video Independent Theatres, Inc., 10 Cir., 386 F.2d 592

(1967), cert. denied, 390 U.S. 1014 (1968); Trans World

Airlines, Inc. v. C.A.B., supra note 50, 128 U.S.App.D.C. at

138, 385 F.2d at 660.

43a

deference is the idea of administrative expertise. Thus it

has been said that special deference is due when the admin-

jstrators were involved in the drafting and passage of the

statutory language. See ibid. “Administrative construction

is less potent than it otherwise would be where it does

not rest upon matters peculiarly within the administrator's

feld of expertise.” Thompson v. Clifford, 132 U.S.App.D.C.

951, 364, 408 F.2d 154, 167 (1968). See also Social Security

Board v. Nierotko, 327 U.S. 358, 369 (1946); Skidmore v.

swift & Co., 323 U.S. 134, 139 (1944): L.C.C. v. Service

Trucking Co., 3 Cir., 186 F.2d 400, 402 (1951).

There can be no doubt that there is no need for admin-

istrative expertise in resolving the question of the meaning

of Section 28. Expertise might be needed to decide what is

areasonable pipeline construction area, but it is not needed

to decide whether Section 28 precludes construction out-

side the statutory right-of-way.

to the meaning of the statutory term, the controversy

must ultimately be resolved, not on the basis of matters

within the special competence of the Secretary, but by

judicial application of canons of statutory construc-

tion. * * * ‘The role of the courts should, in particular,

be viewed hospitably where . . . the question sought to

be reviewed does not significantly engage the agency's

expertise. “[W ]here the only or principal dispute

relates to the meaning of the statutory term”... [the

controversy] presents issues on which courts, and not

[administrators], are relatively more an, *>™

Barlow v. Collins, 397 U.S. 159, 166 (1970), quoting Hardin

v. Kentucky Utilities Co., 390 U.S. 1,14 (1968) (Mr. Justice

Harlan, dissenting).

The second basic rationale for the doctrine of deference

is the concept of congressional acquiescence in the admin-

istrative interpretation. “Under some cireumstances, Con-

gress’ failure to repeal or revise [a statute] in the face of

such administrative interpretation has been held to consti-

2 pees

EPO IES TL Pe IE RAS SPORT

Po}

+87 WN ORES ft NEE IETS TOT Ae eae

tute persuasive evidence that that interpretation is the one

intended by Congress.” Zemel v. Rusk, 381 U.S. 1, ll

(1965).°* Thus in actual cases courts have to analyze

whether there is any reason to believe that the particular

administrative interpretation in question came to the atten.

tion of Congress so that it might reasonably be said that

Congress, by failing to take any action with respect thereto,

approved the interpretation. As we have had occasion to

note, “Legislative silence cannot mean ratification unless,

as a minimum, the existence of the administrative practice

is brought home to the legislature.” Thompson vy. Clifford,

supra, 132 U.S.App.D.C. at 361, 408 F.2d at 164.

Applying the rationale to the present case, there is ab.

solutely no indication that the practice of granting SLUPs

for pipeline construction purposes has ever been brought

to the attention of Congress, either through testimony at a

congressional hearing or by any other means.™ Nor is the

%2See also Red Lion Broadcasting Co. v. F.C.C., supra

note 50, 395 U.S. at 381-382; Canada Packers, Ltd. v. Atchison,

Topeka & Santa Fe R. Co., 385 U.S. 182, 184 (1966).

53 See Zuber Vv. Allen, 396 U.S. 168, 193 (1969); Red Lion

Broadcasting Co. v. F.C.C., supra note 50, 395 U.S. at 381;

Power Reactor Development Co. v. Int. U. of Elec., Radio &

Mach. Wkrs, supra note 50, 367 U.S. at 408-409; Sims vy.

United States, 4 Cir., 252 F.2d 434, 439 (1958), affirmed,

359 U.S. 108 (1959).

5 Compare Power Reactor Development Co. v. Int. U. of

Elec., Radio & Mach. Wkrs, supra note 50, 367 U.S. at 408,

where the Court found that the administrative interpretation

had “time and again been brought to the attention” of the

responsible congressional committee.

Not only do appellees argue that Congress has acquiesced

in the practice of granting SLUPs for pipeline purposes.

They also claim that Congress has specifically authorized the

Secretary of the Interior to issue SLUPs for any and all

purposes in his discretion. But an examination of the relevant

[=e ts

45a

practice of granting SLUPs for pipeline construction

purposes of such public knowledge that it is reasonable to

assume that congressmen, as members of the general public,

inew of the practice. Tndeed, it is ironic that the very oil

companies which now claim that it was settled and well

known administrative practice to grant pipeline construc-

tin SLUPs apparently did not know about the practice

—

statutes Shows no such authorization. The 3 statutes cited

by appellees are 43 U.S.C. §§ 2, 1201 & 1457 (1970). Section

2 provides that the Secretary of the Interior “shall perform

all executive duties * * * in anywise respecting {the public

ands of the United States] * * *.” Section 1201 authorizes

him “to enforce and carry into execution, by appropriate reg-

ylations, every part of the provisions of [Title gis?

Section 1457 charges the Secretary “with the supervision

of public business relating to the following subjects and

agencies: * * * 12. Petroleum conservation. 13. Public lands,

including mines.” We cannot find an authorization to issue

SLUPs in these statutes. There is no question, of course,

that the Secretary of the Interior, as the executive in charge

of federal lands, has some power to authorize entry upon

federal lands; otherwise every entry on such lands would be

atrespass absent specific statutory authority. And we recog-

nize that technically a special land use permit is nothing but

a formal document permitting what would otherwise be a

trespass. But to reason from the fact that the Secretary has

some authority under these broad statutes to permit entry

upon federal land to the conclusion that any and all special

land use permits are congressionally authorized, no matter

how permanent the intended use, no matter how inconsistent

with other more specific legislation, requires a leap of faith

we cannot make. This is an instance where a difference in

degree constitutes a difference in kind, and although we might

imagine cases in which it would be difficult to draw the line

between uses which may be authorized under the Secretary’s

broad executive authority and those that must rest on specific

statutory authority, given the express proviso in the Mineral

Leasing Act and the Act’s legislative history we are confident

that the SLUP in this case is not authorized under these broad

and vague delegations of administrative responsibility.

0 META OE RI TGS

46a

when they first made application for rights-of-way for the

trans-Alaska pipeline. The first application, as noted in

the factual introduction, requested an additional permanent

right-of-way for construction purposes. Likewise, we note

that in its Preliminary Report to the President in 1969 the

North Slope Task Force organized by the Department of

the Interior had not yet figured out how the additional

space was to be acquired. In fact, the Interior Depart.

ment’s own version of the development of the practice of

granting pipeline construction SLUPs makes it highly

unlikely that any but a small handful of prior recipients

would know of the practice. The agency admits that until

1960 the practice was completely informal. That is, those

building pipelines did not request use of additional space;

they merely used what space they needed while project

supervisors from the Bureau of Land Management silently

looked on. It was not until 1960 that SLUPs were granted,

and even then the main purpose of the SLUPs was not to

authorize formally what otherwise would be a trespass on

federal lands. Rather, the Bureau’s desire to issue SLUPs

stemmed from the Bureau’s view that some builders of

pipelines were using more construction space than was in

fact reasonably necessary, or were refusing to attempt to

return the construction space to its original condition. It

was therefore felt that in those cases where there was a

risk of such behavior a SLUP would be desirable either

as a means of limiting, but not eliminating, encroachments

55 See text accompanying note 2 supra.

5¢ See text accompanying note 4 supra. Cf. Leary v. United

States, 395 U.S. 6, 25-26 (1969), in which the Court placed

significance on the fact that at the very time the case was being

litigated “the alleged administrative construction was un-

known even to those charged with representing the United

States in this Court. In these circumstances, the alleged

administrative construction can furnish no additional sup-

port for the Government’s argument.”

47a

on property outside the statutory right-of-way or as a

means of providing a vehicle in which stipulations about

returning the land to satisfactory condition could be placed.

For all that appears from the administrative record before

us, SLUPs are still not granted in every case of pipeline

construction, but only in those cases where the Bureau's

rationales are applicable. Even today the Bureau's policy

isnot publicized through a formal rule or through any other

“expressly articulated position at the administrative

level." ** See Investment Co. Institute v. Camp, 401 U.S.

617, 627 (1971). We are constrained to conclude, therefore,

that the practice of granting pipeline construction SLUPs

has never come to the attention of Congress, and that there

can be no finding of congressional aequiescence.*

st Indeed, the Bureau’s own regulations would seem to the

average reader to preclude granting a SLUP (or pipeline

construction. See 43 C.F.R. § 2920.0-2(a) (1972). See also

pp. 51-53 infra & note 59 infra.

8 Qne aspect of the administrative history merits further

attention. In 1931 the Secretary of the Interior asked then

Attorney General William D. Mitchell whether the Secretary

had authority, under § 28, to grant a right-of-way for con-

struction of a pumping station outside the 50-foot strip in

which the pipeline is located. After determining that “pump-

ing stations are absolutely necessary to operate pipe lines”

‘ecause “oil cannot be transported through pipe lines by

gravity for any considerable distance,” the Attorney Gen-

eral held that wherever the establishment of a pumping sta-

tion “is reasonably necessary for the operation of the pipe

line,” the Secretary “has authority to authorize the grantee

to construct such a pumping station and provide the site

reasonably necessary for that purpose.” He based his con-

clusion on the following reasoning: “Any other construction

of the Act would render the grant of a right of way for pipe

line purposes entirely useless. Congress must have intended

that the rights of way granted should be of practical use and

that pipe lines when laid would be useful instrumentalities

for the transportation of oil and gas. It is not reasonable to

suppose Congress intended to enact legislation which could

either tain eee ea oe he a eee get

48a

Interior points to the fact that Congress has been made

aware of the issuance of SLUPs in other situations, par-

ticularly in situations where the Secretary of Agriculture

not effect the purpose for which it was intended and which

would require supplemental legislation in order to make it

effective.” Establishment of Pumping Stations, 36 Op. AG.

480, 481-482 (1931). He also noted: “It appears that for

more than eight years past the Secretary of the Interior has

made in accordance with that construction of the statute It

is well settled that the practical construction given to a statute

by the officer charged with the duty of enforcing and admin.

istering it i entitled to great weight. It is fair to assume

history, at least so far as it pertains to a construction area,

indicates precisely the opposite. Congress intended to restrict

construction to the statutory right-of-way and it expected that

if the right-of-way proved too narrow remedial legislation

would be necessary.

The second argument made on the basis of the Attorney

General's opinion is that, regardless of whether its reasoning

was right or wrong back in 1931, the fact that this reason-

ing has been made public ever since 1931 through an Attor-

ney General’s opinion requires us to conclude that Congress

has acquiesced in the reasoning—i.e., that Congress now

has issued SLUPs to supplement statutory rights-of-way.

See, ¢.g., Sierra Club v. Hickel, 9 Cir., 433 F.2d 24 (1970),

afirmed only on the ground of lack of standing to sue, 405

cept this approach. First, the right to build isolated pumping

gations on land outside the 50-foot strip and the right to use

land outside the strip for construction along the entire length

of the pipeline differ dramatically with respect to the extent

of incursion into land outside the 50-foot strip. For example,

the trans-Alaska pipeline would eventually require 12 pump-

ing stations, each of which will occupy an area of approxi-

mately 50 acres. See Project Description at 30. Thus a total

of 600 acres will be used for pumping stations. In contrast,

the amount of land covered by the SLUP is estimated to be

an area 16 times as large, and, we might add,

the area covered by the statutory right-of-way

which in this case is estimated to be 5160 acres. See Impact

Statement, Vol. IV, at 257 (Table 3). We hesitate, therefore,

treat congressional acquiescence in one type of minor in-

cursion as congressional acquiescence in incursions of a dif-

ferent order of magnitude.

terms of the statute and the legislative history. See pp. 62-68

infra. Therefore, we cannot conclude from this Attorney

General’s opinion that Congress has acquiesced in the practice

of issuing construction SLUPs in direct violation of the intent

—_—e TD OIE EAL LG OL LET

pee Ld

AIOE ITN MINE Yee. Ome

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et Ne tn ane Me ae

50a

U.S. 727 (1972). We need not voice our views with

to the Ninth Circuit's opinion in Sierra Club, noting only

that the opinion seemed to find congressional acquiescence

in Agriculture Department SLUP practices. For, even

assuming arguendo we agree with the Ninth Circuit with

respect to Agriculture Department SLUPs, we do not see

how this affects the legality oi SLUPs issued by the De.

partment of the Interior for pipeline purposes. The ques-

tion raised in Sierra Club involved interpretation of a

different statute controlling a different agency. In addi.

tion, the statute involved in that case, 16 U.S.C. § 497

(1970), has no provision comparable to that in Section 28

of the Mineral Leasing Act expressly stating that no rights-

of-way for the uses in question shall be granted except

under the provisions, conditions and limitations of the

statute. Appellees’ reliance on such administrative practice

simply ignores the fact that the issue before this court is

not the legality of any and all SLUPs, issued by any-and

all agencies, for any and all purposes. The question is far

more precise, and pertains solely to the issuance of SLUPs

as “rights-of-way” “for the transportation of oil” in viola-

tion of express statutory language that no rights-of-way for

this purpose shall be granted except under the limitations

of Section 28 of the Mineral Leasing Act. This is the only

question we decide. Administrative practice with respect to

of those who enacted the Mineral Leasing Act. As the Su-

preme Court held in Toucey v. New York Life Insurance Co.,

314 U.S. 118, 139-141 (1941):

“* * * Loose language and a sporadic, ill-considered de-

cision cannot be held to have imbedded in our law a doc-

trine which so patently violates the expressed prohibi-

tion of Congress. * * *

“* * * There is no occasion here to regard the silence

of Congress as more commanding than its own plainly

and unmistakably spoken words. * * *”

TOR IE Ay PR tt

praerlUcrre ee ., =F eee Pee eee ee an oe a nt

5la

other statutes and other agencies is not sufficiently relevant

to that question to force us, in this litigation, to review the

legality of those other practices.

We therefore place no reliance on the administrative

iees involving SLUPs for purposes other than oil or

gas pipeline construction. And looking at the history of

the administrative practice of granting pipeline construe-

tion SLUPs, we do not feel, for the reasons diseussed above,

that this history either merits our deference or leads us to

ignore an ascertainable legislative will to restrict construe-

tion activities to the statutory right-of-way.

E. Regulations of the Bureau of Land Management.

We need not rest our decision holding the SLUP here to

be illegal on Section 28 alone, for appellants have also

demonstrated that this SLUP violates the agency's own

regulations governing the granting of special land use

permits.

Appellees have based their request for a SLUP on 43

CF.R. § 2920.0-2(a) (1972):

ior, in the administration of the lands under the juris-

dietion of the Bureau of Land Management, to permit

the heneficial use thereof, where practical, for special

purposes not specifically provided for by existing law.

Permits for such special use will not be issued, how-

ever, in any case where the provisions of any law may

be invoked. Permits will not be issued where such is-

suance would be inconsistent with the objectives of the

regulations in this chapter or would be in conflict with

any Federal or State laws.”

In addition, 43 C.F.R. § 2920.3(a)(1) (1972) provides: “A

special land-use permit will he revocable in the diseretion of

the authorized officer at any time, upon notice, if in his

judgment the lands should be devoted to another use, or the

conditions of the permit have been breached.” Appellants

COPY BOUND CLOSE IN CENTER

52a

contend, first, that the SLUP in this case violates Section

2929.0-2(a), which only permits special land use permits

for “purposes not specifically provided for by existing law,”

and the similar proviso in the same section that “(permits

for such special use will not be issued, however, in any case

where the provisions of any law may be invoked.” Also, it

is argued that the SLUP violates Section 2920.3(a)(1) be.

cause it is not “revocable in the discretion of the authorized

officer at any time” as that phrase has been construed in

prior cases.

Turning to the first argument, there are no judicial cases

interpreting the requirement that a SLUP be for “pur.

poses not specifically provided for by existing law.” The

only administrative interpretation of the provision indi-

cates that the question whether there is a violation of the

regulation is identical with the question whether there is a

violation of Section 28. In a Solicitor’s opinion of October

22, 1946, Leases & Licenses, Ore. & Calif. Lands, 59 LD.

313 (1946), the following issue was posed. A statute gave

the Bureau of Land Management the power to lease certain

land for recreational purposes to “States, counties, or mu-

nicipalities.” The question presented was whether, in light

of that statute, the Bureau had the authority to issue

leases and/or special land use permits for the same

land for recreational purposes to private individuals.

The Solicitor concluded that leases to individuals were

impermissible, but that special land use permits were

valid. He reasoned that the regulation barring permits in

situations where the provisions of existing public land

laws may be invoked did not mean that the Bureau could

only issue permits in “situations where there is no statute

at all governing the particular type of use.” ZJd. at 316.

While this language would tend to support appellees, the

next sentence makes it clear that, under the regulation,

SLUPs could be issued only “[i]n the absence of a congres-

sional intent to preclude the issuance of any special land-

PRISE GE PSII OE SE

53a

yse permits with respect to a particular kind of use.” Ibid.

The analysis of whether the regulation is violated is thus

identical with our previous analysis of whether Section 28

was violated. Congressional intent to confine construction

activities to the pipeline right-of-way authorized in the

statute represents a congressional intent to preclude con-

struction SLUPs for land outside the statutory right-of-

vay" Thus the SLUP constitutes a violation of the

reguietion in this regard.

Turning then to the regulation’s requirement that the

SLUP be revocable, past administrative interpretation

of the revocability requirement has produced two very dif-

ferent tests. The first is hest epitomized by the Attorney

General's opinion in Erection of Catholic Chapel at West

Point, 21 Op. A.G. 537 (1897). In that case a cleric had

petitioned the Superintendent of the United States Military

Academy at West Point for permission to erect a Roman

Catholic chapel there. The Secretary of War then issued

a “revocable license” to erect the chapel, an act that the

Attorney General concluded was illegal. The Attorney

General was unpersuaded by the fact that the license ex-

pressly provided that it was revocable and that the licensee

would remove, at his own expense, and within 60 days of

notice of revocation, any structures erected on the land,

and would leave the land “in as good condition for use

by the United States as it is at this date.” He reasoned:

“e * * The licenses provide for no term, and really

Indeed, in the above discussed opinion the Solicitor rec-

ognized that development of minerals was one area where

Congress had precluded issuance of SLUPs. See 59 I.D. at

316 n.3. See also 43 C.F.R. § 258.2 (1949): “Permits for

** * special use will not be issued * * * in any case where

the provisions of the existing pub’* 'and laws may be in-

velopment of minerals, or for the . .ing of rights-of-way

obtainable under existing laws * * *.”

54a

commit the Government to a practical perpetuity. 1t

would be idle to deny this—idle to deny that you do

not expect to exercise, nor is it expected that you wil]

exercise, the power of revocation except in an emer.

gency. *° * * At any rate the Government would fing

itself emparrassed either to endure a perpetuity of

right in the license or exercise an individious power.”

Id. at 541. This test, then, focuses on the likelihood of

revocation as opposed to the mere legal right to revoke®

Under this approach, the licensee’s plans to invest sizable

amounts of capital in improvements on the licensed

erty indicated that there is no real intent ever to exercige

the right to revoke, for to do so would require destruetigg

of the investment.

The second test, a far more liberal one, is best repre.

sented by the Attorney General's opinion in Benicia Ar.

senal Military Reservation, 35 Op. A.G. 485 (1928). In that

ease the question was whether the Secretary of War had

authority to grant a revocable permit to Southern Pacifie

Railroad to construct a railroad of two or more tracks

across the Benicia Arsenal Military Reservation in Cali-

fornia. The Attorney General expressly rejected the posi-

tion taken in the West Point Chapel case." The test he pro-

* See also Revocable Licenses, 22 Op. A.G. 240, 246 (1898):

“[A revocable permit] can not be used as a basis for granting,

under the guise of a temporary license, a substantially per-

manent right to maintain a railroad.” Cf. Government-Owned

Site at Aqueduct Bridge, 30 Op. A.G. 470, 483 (1915) (revo-

cable licenses cannot be used “where the use granted from

its very nature would not be revocable, practically speaking,

whatever it might be in form”).

*: He contended that “[i]n cases where it appears that the

permittee intends to make substantial improvements the re-

moval of which would cause him a great loss in case of revo-

cation of the permit, it is [merely] a matter of departmental

policy whether a situation should be created by the issue of

a permit which may afterwards embarrass the head of the

55a ;

posed instead is as follows **

“The essential thing is to preserve unimpaired the é

title of the United States and its right at any time to :

oceupy and use its property and to prevent any use E

by the licensee which would permanently damage or .

destroy the property for governmental use. If the :

permit is revocable at will by its terms, and if the °

in the exercise of the power of revocation.” 35

Op. A.G. at 489-490. In addition, he attempted to distinguish

the West Point Chapel case on the ground that the applica-

tion for permission to erect the chapel contained a condition

that after its completion the property would be taken over by

the United States and permanently maintained. He argued

that therefore West Point Chapel “did not involve a revocable

license.” See id. at 488. It seems clear from the West Point

Chapel isi however, that this distinction is without

i opinion specifically speaks in terms of a revocable

the proposal to turn the chapel over to the United

States Government through the Secretary of War is declared

legal on a separate ground, namely that “the Secretary of

War has no power to accept a donation of property for the

Government * * *.” 21 Op. A.G. at 540.

Elsewhere in Benicia Arsenal Military Reservation, the

Attorney General seems to establish a different set of tests:

“If an effort were made to evolve from the prior opinions

of the Attorneys General a rule which may be reconciled

with all of them, it would be that the Secretary of War has

power to grant revocable permits for occupancy of parts of

military reservations for railway purposes provided (1) the

permits are made expressly revocable at will, (2) the struc-

tures which the licensee proposes to erect are capable of be-

ing removed in case of revocation, and the use to which the

licensee proposes to put the land will not permanently damage

or destroy it for Government use, (3) the granting of the

permit and the use of the property under it will be of direct

benefit to the United States.” 35 Op. A.G. at 489. (Emphasis

added.) It is unnecessary for us to comment upon the “di-

rect benefit” test in this case since we find that the SLUP

for construction purposes is not revocable under either the

liberal or the strict test of revocability.

— Ei. — |

B®

structures which the licensee proposes to erect are

capable of being removed in case of revocation, and if

upon revocation the land may be left in suitable con.

dition for Government use, the fact that the licensee

expects that the United States may not soon find it to

its interest to revoke the license has no real bearing

on the legal situation.”

Id. at 489.

Though the parties to this case have debated which of

these tests is proper, we find it unnecessary to approve one

or the other, for we find that the SLUP to be issued in the

present case fails both tests. For the same reason, we

expressly fail to consider and do not rely upon the argu-

ment, advanced by appellants, that Article IV, Section 3,

Clause 2 of the United States Constitution, which provides

that “[t]he Congress shall have Power to dispose of and

make all needful Rules and Regulations respecting the Ter-

ritory or other Property belonging to the United States

It is obvious that the SLUP in this case fails the first

test. Were the SLUP to be revoked at any time during

the several-year construction period, construction of the

remainder of the pipeline could not continue and the

the entire investment in already completed segments of the

pipeline would be lost. Looking at the period after com-

*3 Indeed, the SLUP application in this case is notably am-

biguous as to whether any enforceable interest is created

during the construction period. At one point the application

states that “Alyeska recognizes that any authorization to use

the space requested by this application will remain at all

times revocable at will by the government,” but on the same

page states that “[a]fter construction has been completed, no

continuing interest in this additional space is or will be

claimed by Alyeska,” thereby implying that before construe-

tion is completed some enforceable interest is claimed. See

Supporting Documents, supra note 7, Vol. II, Tab 3, Response

to Question 2a at 4. (Emphasis added.)

57a

tion of the pipeline, appellees themselves have made it

clear that the pipeline will need maintenance and servicing,

and that this servicing will at times involve building tem-

porary bypasses and removing sections of pipe and re-

ing them.* If a certain construction space will be

needed to ‘nstall the pipe in the first place, it seems likely

that the same amount of space will be necessary to remove

the old pipe and put another section in its place. At least

there is no evidence in the record in this case which would

indicate the contrary.™ It is clear, then, that the entire

pipeline investment rests on continuing availability of the

SLUP area to appellee Alyeska, and therefore, despite the

fact that the application states that the SLUP is revocable

and temporary, it is for all real purposes irrevocable and

as permanent as the basic pipeline right-of-way. To sug-

gest that during or aft

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