# Petition for Writ of Certiorari — Morton v. Wilderness Society > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0039%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 410 U.S. 980 ## Text INDEX Page 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, (D 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 AIL ET 2a 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 3a 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 4a 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 5a 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 6a 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 7 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 8a 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.” 9a 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, A. 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 IP 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 RR 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 re . 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. * © © Those lines are most of them of considerable 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. a 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 4 : i . : “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 ET or - ~~ Te Re ONES Pr ™ 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. = yo URNS pr Ne © Dy OH EAPO Le . se 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 wre 5 | 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): “e © © It is the policy of the Secretary of the Inter- 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- voked. For example, they will not «© ed * * * for the de- 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 ** 7 “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 °° © ” requires a strict definition of revocability. 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.) ee ae he old © en -lele - me ete) Ad 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 after pipeline construction an adminis- trator, or for that matter Congress, could revoke the permits and treat all entry into the SLUP land as a trespass is simply to suggest the incredible. By issuing the SLUP the United States is put in a position of suffering continued trespass on its lands or of destroying a multi- billion-dollar investment. Even were continued access not vital to the maintenance * See Project Description at 56. * During oral argument before the District Court on the motion for a permanent injunction, appellants challenged ap- pellees to produce such evidence: “I would hope [the court] would ask [counsel for appellees] when he gets up for the oi] company if this is needed to bury the pipeline how can you get down and unbury the pipeline in case of a rupture without the same equipment. What do they propose to do as they say they are willing to lift this road at any time, that is an impossibility, if this material is necessary for the con- struction of the pipeline why isn’t it also necessary for the maintenance of the pipeline?” Tr. at 254. Appellees never responded to this argument. Sr NO ee oe 2 woe = MBEPO@ te ty sitsaoesrieneninten s and operation of the pipeline, it is obvious that the thick gravel pad to be erected on SLUP property will become a permanent feature of the arctic landscape. We note first some ambiguity as to Alyeska’s intentions with respect to the gravel pad. Interior’s Impact Statement indicates that “Alyeska proposed at one place [in its Project Description] not to remove the gravel work pad * * *, whereas else. where restoration of the construction zone as nearly as feasible to its original condition is proposed * * *,"« Despite the ambiguity, Alyeska obviously has no intention of removing the pad and the Interior Department wil] never require removal. The construction pad, a gravel roadway up to five feet deep, will be built with about 34 million cubic yards of gravel, taken from 234 gravel pits located along the pipeline route. The Department clearly is not going to require Alyeska to bear the great cost of breaking up this improvement and returning the gravel to its source. As explained more fully below, once the pad is constructed, it is environmentally more detrimental to remove it than to keep it in place. We cannot believe, in light of all the effort the Department has expended in developing stipulations to minimize detrimental environ- mental effects, that the Department will ever force Alyeska affirmatively to degrade the environment. Applying the second test is more difficult, for it requires us to consider whether any structures to be erected can in fact be removed and whether the land may be left, after revocation, in suitable condition for Government use. Look- ing first at those areas where hills and mountains are to be graded away, and the other areas where the spoil from such grading will be piled, it would seem that construction of the pipeline involves permanent changes affecting the 7 Jd. at 66-67. * Impact Statement, Vol. IV, at 100. LP EO OF ONY Oe PS 59a land that cannot he reversed upon revocation. There is, of course, no way to rebuild a mountain. Whether the graded land and the land on which the spoil is located can ever be in “suitable condition for Government use” after revoca- tion is difficult to determine on the record we have, since there is no indication as to what, if anything, the Govern- ment use would he, and it might be argued that the land can he used for vacant open space as much after grading as before grading. When we turn to the construction area, and particularly those sections of the construction area over which a gravel work pad will be constructed to insulate the permafrost, however, the second test will be violated because the pad cannot be removed without producing permanent and dele- terious changes in the underlying land. Even were we to accept Alveska’s most recent stipulation to remove the pad if requested, our analysis of Interior's Final Environmental Impact Statement indicates that it would be impossible to remove the pad and return the underlying land to a con- dition suitable for other uses. The Impact Statement first discusses the effects of retaining the gravel pads: the land would remain bare for many years because of compaction by the heavy equipment; the survival of planted trees on graded spoil piles is questionable. Were the pads to he removed, the Impact Statement suggests, there would occur “some of the same effects that would exist if the pad is retained and some additional ones.” These additional effects would include the further hindrance of revegetation due to the increased compaction of the land caused by the removal process and by heavy removal equipment. More importantly, in permafrost areas, where the purpose of the gravel pad is to minimize thaw, “(rlemoval of these pads and attempts to restore the surface and vegetation would create some adverse * Id. at 100-101. rr QDeNIiam Taco Tra Coc AST oe conditions. Destruction of insulating vegetation and peat layers causing thaw of underlying permafrost is well known and readily observable * * *. Removal of the pad would remove the insulation and severe thaw with subsidence and erosion would occur.” ® This factor, of course, supports the proposition that the Bureau of Land Management is never in fact going to request removal of the gravel pads. But more pertinent to the second test, it indicates that given present technology it is impossible to remove the pads without causing serious erosion. Appellees contend that the problems of removing the gravel pad would be no greater than those associated with destruction of such facilities as buildings or railroad lines, uses which frequently have been authorized in the past under revocable land use permits." But their own discussion of the peculiar qualities of permafrost simply indicates otherwise,” and appellees have not shown that 8° Jd. at 101-102. 7 According to Bureau of Land Management statistics, the Bureau has presenily outstanding SLUPs covering some 1,370,000 acres, permitting uses as varied as cemeteries, gos- pel missions, garbage dumps, office buildings, grain elevators, movie towns, and soapbox derby runways. See Brief for Ap- pellee Aleyska Pipeline Service Company Covering Mineral Leasing Act and Terminal Facility Issues at 37-38. The De partment of Agriculture had, in 1965, permits outstanding covering 5,000,000 acres, permitting uses involving improve- ments totalling over $1 billion. Jd. at 39. ™ The Environmental Impact Statement discusses the fol- lowing “[c]hanges in stable terrain caused by construction and maintenance procedures.—In this category, the lessons learned from previous experience in Alaskan engineering are most important because of the rapid, and often unexpected, consequences of conventional construction practices. Most difficulties here arise from natural thawing of stable frozen soils that lose their strength when a natural insulating cover is removed by construction equipment. Solar radiation plus run-off and flowing or ponded thaw-water can cause substan- 6la any projects involving such irreversible changes in perma- frost have ever before been permitted under SLUP authority. We therefore conclude that the SLUP to be issued for pipeline construction violates the Bureau’s own require- ment of revocability, regardless of which interpretation of revocability we apply. Having examined the regulations of the Bureau of Land Management as they pertain to the SLUP to be issued in this ease, we need not resolve any purported conflict be- tween the terms of the statute and the Bureau's historic authority to permit temporary special land use through permits. For the historic authority to issue permits applies only if the uses to be made thereunder are really temporary and revocable. If the use is really not temporary or oceasional, but is permanent (or at least long-lasting), the matter cannot be papered over merely by designating it as “revocable” when it is not intended to be revocable and, in the nature of things, is not in fact revocable. In addition to this inherent limitation on SLUPs, rec- ognized in the Bureau's own regulations and many Attorney General opinions, it is obvious that SLUPs cannot be used as a means of avoiding the provisions of Section 28. Indeed, Alveska concedes in its brief that it could not have avoided the legal dispute by not applying for any perma- nent right-of-way at all under Section 28, and obtaining all necessary land under a SLUP. The same result follows when a person is seeking a SLUP which is revocable in theory only to obtain authority for a use which Congress plainly contemplated would be obtained solely by applica- tion under, and subject to the limitations of, Section 28. tial damage in a very short time. These effects are seen in slope instability, modification of surface drainage, erosion and deposition, lasting scars in tundra mat, and other ter- rain disturbances.” Impact Statement, Vol. IV, at 15. RR eS SR ie HE CRAP ROR ES Re eee ee meee. Vm tee ete 62a These two principles are both operative here. This case involves not only an attempt to avoid the width limitation of Section 28, but an attempt to do so in a manner incon. sistent with the Bureau's own regulations. These two fae. tors are interrelated and reinforcing, and together they serve to invalidate the SLUP proposed to be issued by the Secretary of the Interior for construction of the Alaska pipeline.” Il. PUMPING STATION AND COMMUNICATION FACILITY RIGHTS-OF-WAY A. Pumping Stations. Because oil will not flow through a pipeline under the force of gravity alone, an operable pipeline requires pump- ing stations. The proposed Alyeska pipeline wiil have 12 such stations when its maximum capacity of 2,000,000 barrels per day is reached. Within each of the stations the following necessary facilities will be located: pumps, fuel tanks, valves, oil storage tanks, housing to accommo- date up to 16 men, electrical generating facility, heating and water treatment plant, shop and warehouse buildings, and a helicopter landing site.* As is evident from this description, it is impossible to locate necessary pumping station facilities within 25 feet of either side of the pipe; each station will occupy a site of approximately 50 acres.” 72 We, of course, intimate no views at the present time with respect to the equitable considerations which may govern the propriety of issuing injunctive reiief in cases where it is alleged that a previously issued pipeline SLUP exceeded the authority of the Department of the Interior. 73 Project Description at 30-35. During the initial stage of operations, the pipeline will have only a 600,000-barrel per day capacity, and only 5 pumping stations will be needed. Id. at 30. 4 Id. at 30. nen AS ere . Sse. BO tee Bae tee Nees Alveska has therefore applied for rights-of-way for land on which to locate these pumping stations, authority for such rights-of-way being premised upon 43 C.F.R. § 2881.3 (1972) : “A site for a pumping station or other structures reasonably necessary to the operation of a pipeline on a right-of-way approved under section 28 of the [Mineral Leasing Act of 1920] may be granted under the same sections [sic] * * *.” Appellants charge that the Secretary of the Interior has no power under the Mineral Leasing Act to issue this regulation and that the rights-of-way for pumping stations are illegal under Section 28 of the Act, their argument being identical with that raised with respect to the SLUP for construction purposes, namely, that these rights-of-way violate the proviso “[t]hat 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 conditions of this section.” While the question of a pumping station right-of-way may appear similar to that of construction SLUPS, close examination reveals the similarity to he merely superficial. That pumping stations are part of the pipeline under the Act, and that they are distinguishable from construction SLUPS in this manner, may be determined from the lang- | uage of the statute itself, the legislative history, and the administrative practice. ' Our basie response to appellants’ argument against the | pumping station rights-of-way is that pumping stations are part of the “pipe line” as that term is used in Section 28. The statute, of course, does more than provide a right-of- way for sections of pipe: it provides for a “pipe line,” a facility for the transportation of oil. It is evident that %Cf. United States v. Denver & Rio Grande R. Co., 150 US. 1, 12-13 (1893): CrADYyY ROTINT CTOCEe IN CON TER back in 1920, as well as today, oil could not flow through a pipeline for any significant distance by the force of gravity alone.”* A length of pipe without any pumping Stations never could be an operating “pipe line” as that term is used in the statute. When the statute provides for a right-of. way on land “to the extent of the ground occupied by said pipe line,” it therefore must provide not only for land on which to locate pipe, but also for land on which to locate those other facilities which make pipe a “pipe line.” Simi. larly, when the statute provides for “twenty-five feet on each side” of the pipeline, it must provide not only for 25 feet on each side of the pipe, but also for 25 feet on each side of those facilities which constitute part of the “pipe line.” The legislative history, meager though it is, fully accords with this reading of the statute. During the debates on the bills that eventual [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0039%3A1. Public record. Not legal advice.