# Opposition Brief — Morton v. Wilderness Society

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0251%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1973
- **Citation:** 411 U.S. 917

## Text

RocErs C. B. MoRTon, SECRET, SecmeranY o rue Deron,
ET AL., 3
Petitioners,

bie

THE WILDERNESS SOCIETY, ENVIRONMENTAL DEFENSE
FUND, INC., and FRIENDS OF THE EARTH, ET AL.,
Respondents.

BRIEF IN OPPOSITION TO THE PETITIONS FOR A
WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT

DENNIS M. FLANNERY
JOHN F. DIENELT
THomas B. Stoxx, Jr.
1751 N Street, N.W.
Washington, D.C. 20086
Attorneys for The Wilderness
Of Counsel: Society, Environmental Defense
Victor H. KRAMER Fund, Inc., and Friends of the
600 New Jersey Ave., N.W. Earth
Washington, D.C. Epwakp BERLIN
PHILIP ELMAN 1712 N Street, N.W.
1820 19th Street, N.W. Washington, D.C. 20086
Washington, D.C. Attorney for David Anderson and
JAMES W. MOORMAN
311 California Street
San Francisco, California

SnSHHSDSEREEEELSNSEEEmeeneeeeeee

LEAL
WILSON - EpPzs PRINTING Co.. INC. + RE 7-6002 - WASHINGTON, D. C. 20001

ES
INDEX
Page
TT ESAT aE CES IE TERRE ee : 1
REASONS WHY THE WRIT SHOULD NOT BE 4
GRANTED mn 4
IT IS FOR CONGRESS, NOT THE COURTS, TO DETER-
MINE WHETHER THE MINERAL LEASING ACT SHOULD
BE AMENDED .............. 4
THE NEPA ISSUES ARE NOT IN AN APPROPRIATE POS-
TURE FOR REVIEW BY THIS COURT .... 9
SEER CE ee ee a ee a ee 20
CITATIONS
Constitution:
oe cen oe ce, oe ee. SL... , x
Cases:
Poe v. Ullman, 367 U.S. 497 (1961) -............2....... 10
Rules of Court:
pepe Comt Eats 19 9
Ce ee 10
Statutes:
Alaska Native Claims Settlement Act, 85 Stat.
Si I al i doelanilisun dlls os eaiinanibieilalscicibemtenrnnonte 7
Mineral! Leasing Act of 1920, Section 28, 30 U.S.C.
BREE a A ESS EER SS RL eee passim
National Environmental Policy Act of 1969, 42
NE I i I niente 3, 9, 16, 17
Legislative Material:
H.R. Rep. 92-746, 92d Cong., Ist Sess. (1971) _..... 7
— a _

BS PEE EY CORE SEP 9 RE

II
INDEX—Continued

Page

Hearings, Senate Committee on Interior and In-
sular Affairs, 92d Cong., 1st Sess. (April 29,
1971) 13
Hearings, Senate Committees on Public Works and
Interior and Insular Affairs, 92d Cong., 2d
Sess. (1972) 13
Hearings Before the Senate Interior and Insular
Affairs Committee on Pending Legislation to
Establish a Federal Policy Concerning the
Granting of Rights-of-Way Across Federal
Lands, 93d Cong., Ist Sess. (1973) -...-.......-....-.- 8,18
S. 970, S. 993, S. 1040, S. 1041, S. 1056, S. 1081,
H.R. 4651, H.R. 4707, and H.R. 5750, 93d Cong.,
1st Sess. (1973) . 7-8, 18

IN THE

Suprenve Court of the United States

OCTOBER TERM, 1972
Nos. 72-1227, 1228, 1229

ROGERS C. B. MORTON, SECRETARY OF THE INTERIOR,
ET AL.,
Petitioners,
v.

THE WILDERNESS SOCIETY, ENVIRONMENTAL DEFENSE
FUND, INC., and FRIENDS OF THE EARTH, ET AL.,

Respondents.

BRIEF IN OPPOSITION TO THE PETITIONS FOR A
WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT

STATEMENT

The petitions for certiorari present no issue which
warrants further review by this Court. In urging
this position, respondents’ rely principally upon the

1The principal respondents in the case are three environ-
mental organizations, The Wilderness Society, Environmental
Defense Fund, Inc., and Friends of the Earth, who are the
original plaintiffs in the Alaska Pipeline litigation. The other
respondents are David Anderson and Canadian Wildlife Fed-
eration, who were allowed to intervene in The Wilderness

seeare tt NO a A OTL OLLI T TOIT ciate

careful and comprehensive analysis of the issues con-
tained in the exhaustive opinion of the court of ap-
peals, sitting en banc. Gov. Pet. App. A.

In reaching the unanimous conclusion that Con-
gress must decide whether to amend the Mineral
Leasing Act of 1920, all seven judges who heard the
case were keenly aware of “the obvious magnitude
and current importance of the interests at stake.”
Gov. Pet. App. A 93a. But the petitioners could not
convince even one of the judges that the relief they
seek should be obtained from the courts, rather
than from the Congress. The essence of the decision
below, as the court of appeals noted, “is as settled
as it is simple.” Gov. Pet. App. A 94a.

“Congress, by enacting Section 28, allowed pipe-
line companies to use a certain amount of land
to construct their pipelines. These companies
have now come into court, accompanied by the
executive agency authorized to administer the
statute, and have said, ‘This is not enough land;
give us more.’ We have no more power to grant
their request, of course, than we have the power

Society suit by order dated May 11, 1972, and The Cordova
District Fisheries Union, whose separate suit (filed on April
28, 1971) was consolidated with The Wilderness Society
suit.

All respondents join in this opposition. In the remainder
of this brief, however, the term “respondents” refers, unless
otherwise stated, to The Wilderness Society, Environmental
Defense Fund, Inc., and Friends of the Earth.

ees aes
GRE SRAR REN EN GEM EEN ONTO LTR EAE PIE ee

3

to increase congressional appropriations to needy
recipients.

ae * * *

“We think it plain that the Executive Branch,
when confronted with the legal problems attend-
ant upon the Alaska pipeline, should have taken
note of the limitations that had been prescribed
by Congress, and should have presented to Con-
gress the case for revision of the basic statute.”
Gov. Pet, App. A, 93a-94a, 97a.

Judge Wilkey, concurring in the court’s Mineral Leas-
ing Act decision, stated: “Regrettably, the would-be
builders of the Alaska Pipeline sought from the
courts rather than Congress clearly necessary changes
in the statutory restrictions on the use of public
lands.” Id., at 137a. Judge MacKinnon, in his sep-
arate opinion, agreed: “Alyeska must now go to Con-
gress for an amendment. . . . That is regrettable
.. . but it is Congress that has the legislative power
and not this court.” Jd., at 122a.

Petitioners devote a considerable portion of their
petitions to broad and potentially complex issues, nei-
ther reached nor considered by the court of appeals,
relating to the National Environmental Policy Act
(“NEPA”). Those issues are not in a proper pos-
ture for review by the court at this time and do not
provide an additional basis, apart from the Mineral
Leasing Act issues, for granting review. As noted
by the court of appeals, pending a Congressional re-
solution of the Mineral Leasing Act issues, the present

. = SAS Pl AYR ONECART A th
OI HN LALO AIA Ke WIR IBEL TM NR SIREN TAPAS MEAD IR, BEV 6 . 21 SERN ie . Fea RAN aD I BA ee

4

“analysis of environmental, economic and other costs

. may become outdated, and in its updating the
Department conceivably might introduce changes
mooting anything we might say about its present
adequacy or inadequacy.” Gov. Pet. App. A 90a. As
demonstrated at pages 16-19, infra, legislative and
other developments have already confirmed the cor-
rectness of this conclusion.

REASONS WHY THE WRIT SHOULD NOT BE GRANTED

IT IS FOR CONGRESS, NOT THE COURTS, TO DETERMINE

WHETHER THE MINERAL LEASING ACT SHOULD BE AMENDED

1. The court of appeals considered the Mineral
Leasing Act issues in meticulous detail. Every canon
of statutory interpretation dictates the court’s unani-
mous conclusion that construction of the Alaska Pipe-
line would violate the Mineral Leasing Act. These
include the plain meaning of the statute (Gov. Pet.
App. A 16a-23a), its legislative history (id., at 23a-
39a), its contemporaneous interpretation by the
agency charged with its administration (id., at 21a),
and the settled construction of the administrative reg-
ulations of that agency (id., at 40a-62a).

In their briefs, petitioners essentially ignore the add-
ed fact that an amount of land much wider than that
provided for in the Mineral Leasing Act is perma-
nently necessary for access and maintenance, as well
as construction, of the pipeline. It was on this point
that Judge MacKinnon joined the other six judges
in the conclusion that Congressional approval is nec-

2S OL LPT Ta I OTS LIT NOB AV PNET ARSE nth DV Et AEE A NAG Su PIES a VAR TE

5

essary. The Government’s assertion that all that will
be needed are “temporary permits for access and
maintenance” (Gov. Pet. 23) is simply untrue. See
Gov. Pet. App. A 56a-61a; Gov. Pet. App. A 119a-
1238a.

2. The court of appeals was also correct in con-
cluding that the unambiguous proscription of the
Mineral Leasing Act is not overcome by what peti-
tioners’ counsel now attempt to characterize as “long
standing and consistent administrative interpretation
of the statute” (Gov. Pet. 23-24). No such establish-
ed interpretation exists. As the court of appeals held,
it is to be found nowhere in “a formal rule or
through any other ‘expressly articulated position at
the administrative level.’”’ Gov. Pet. App. A 47a.

The court further noted the irony that the same
parties who now assert the existence of a “settled
and well known administrative practice . . . apparent-
ly did not know about the practice” when the first
application for rights of way was made in 1969.
Gov. Pet. App. A 45a-46a. The result, moreover, of a
subsequent three-year search by petitioners’ counsel
into the files of Interior Department field offices pro-
duced no more than a handful of isolated, vague, and
inconclusive low-level administrative lapses to which
the court of appeals properly gave little weight. Gov.
Pet. App. A 5la.’

2 The three-year search (1969-1972) by petitioners’ counsel
uncovered exactly five documented instances—none occurring
prior to 1960—in which Interior Department field offices were

2

L

——

6

8. The decision of the court of appeals was not pe-
titioners’ first indication that the Mineral Leasing
Act stood as a threshold bar to the Alaska Pipeline.*

requested to issue or did issue construction-related special
land use permits for pipelines. Three of them involved a total
distance of less than 32 miles. The fourth appeared to be
merely an undated application with no permit attached. And
the fifth was issued almost a full year after the district court’s
preliminary injunction in the instant case. (Government’s
Brief to the Court of Appeals, Appendix B). Petitioners’
counsel endeavored to supplement this scanty showing with
affidavits by field-level Interior Department employees and
industry pipeliners. Collectively, these affidavits identified
only four specific instances in which pipeliners were alleged
to have been given even informal access to public lands out-
side the statutory right-of-way. The earliest such instance
identified was alleged to have occurred in 1958. And, no in-
dication was given in the affidavits as to the actual amount of
additional public land affected. (Alyeska Supplemental Docu-
ments I, Tabs 1-9).

—— ee

The court’s conclusion—“that this history [nJeither merits
our deference [n]or leads us to ignore an ascertainable legisla- ]
tive will to restrict construction activities to the statutory |
right-of-way,” Gov. Pet. App. A 5la—is not merely correct.
It is a charitable understatement.

* Indeed, in a cover letter to the Undersecretary of the In-
terior submitting the oil companies’ initial permit application
of June 6, 1969, their attorney Kenneth P. Fountain acknowl-
edged that:

“The 54’ R.O.W. [right of way] width which is allowed
by statute is not adequate for the construction of a 48”
pipeline. The R.O.W. should be 100’ width to accommo-
date the extremely large equipment that is necessary to
handle the 48” pipe, and the large spoil [from] exca-
vated soil... .” (Emphasis added.) Respondents’ “Rule
9(h) Documents,” Tab B.

Co ne a a

7

The Mineral Leasing Act was a principal basis on
which the district court issued its preliminary in-
junction in this case three years ago. Wilderness
Society v. Hickel, 325 F.Supp. 422, 423-24 (D.D.C.,
April 28, 1970) (Findings 2, Conclusions § 5).
See Gov. Pet. App. E 188a-185a. Yet, despite this
unambiguous early warning, petitioners did nothing
to bring the matter to the attention of Congress and
to seek a calm and dispassionate legislative resolu-
tion.*

The matter has now, however, finally been pre-
sented squarely to Congress. Within the past few
weeks bills have been introduced seeking to amend
the Mineral Leasing Act (S. 1040, S. 1056, and H.R.
4651), to update all public land laws dealing with

* The Congressional hearings cited at Gov. Pet. 24 n. 14 and
Ala. Pet. 25 n. 9 were also cited in petitioners’ briefs to the
court of appeals. All of these hearings preceded even the
preliminary injunction in this case. None was addressed to
the underlying legality of the Secretary’s proposed action.

The Government’s citation to the Alaska Native Claims
Settlement Act of 1971, Gov. Pet. 24-25, (which was also
cited in petitioners’ briefs to the court of appeals) defies un-
derstanding. When the Act was passed, the preliminary
injunction in this case was still in effect. The legislative
history of the Act unambiguously states that (a) neither the
conference committee nor the House or Senate Committees
“consider[ed] the proposed pipeline” in their deliberations;
and that (b) if “the Secretary should . . . decide to grant the
necessary permits, nothing . . . should be construed in any
manner to limit, diminish, or condition the Secretary’s ewist-
ing authority to take any action required to implement this
decision.” (Emphasis added.) H.R. Rep. 92-746, 92d Cong.,
Ist Sess. 46 (1971).

, Ayer : ™ > oy) RN LET MCT ORY
RAR IM ey og ane SIDER ees, f vy ah wy .
v

rights-of-way (S. 1041 and S. 1081), to approve the
Alaska Pipeline project (S. 970), to approve an al-
ternative trans-Alaska-Canada project (S. 993, H.R.
4707), and to authorize an independent Congressional
review that would lead to a prompt and final approval
by Congress of either the Alaska Pipeline project or
an alternative trans-Alaska-Canada project (H.R.
5750). Hearings have already commenced on sev-
eral of the bills. Hearings Before the Senate Interior
and Insular Affairs Committee on Pending Legisla-
tion to Establish a Federal Policy Concerning the
Granting of Rights-of-Way Across Federal Lands,
93d Cong., 1st Sess. (March 9 and March 27, 19738).
At long last, therefore, the matter is where it belongs,
not in the courts but before Congress which has the
plenary power “to dispose of and make all needful
Rules and Regulations respecting the Territory or
other Property belonging to the United States.” U.S.
Const. art. IV, $ 3, cl. 2.

4, Finally, the decision below is not only clearly
correct but does not conflict with the decision of any
other circuit and has no impact on any public land
law other than the Minera] Leasing Act. See Gov.
Pet. App. A 48a-5la. The decision may, of course,
lead to a new look by Congress at the need for a
general updating of the current right-of-way laws,
which have been enacted haphazardly over the course
of a hundred years, But that, again, is a project not
for the courts but for the Congress, the branch of
government with plenary power over the public lands.

es es - ~—T

9

There is no justification, under the considerations
governing review on certiorari set forth in Rule 19
| of this Court’s Rules, for further judicial review of
the Mineral Leasing Act issues. The important policy
issues underlying the litigation constitute, we submit,
a compelling reason to deny the writ, not to grant it.
Petitioners should take their case for obtaining use of
the public lands to Congress, where the policy issues
they raise in their briefs may be debated and re-
solved on the merits.

THE NEPA ISSUES ARE NOT IN AN APPROPRIATE POSTURE

FOR REVIEW BY THIS COURT

1. Respondents submit that the threshold Mineral
Leasing Act issues alone should determine the dis-
position of the petitions for certiorari. There has
been no opinion rendered by the court of appeals on
the potential NEPA issues in the case. Nor are there
any useful findings and conclusions by the district
court on those issues. See Gov. Pet. App. D 179a-
182a.

Accordingly, if this Court should grant the peti-
| tions for certiorari, respondents respectfully suggest
that the review be limited to the Mineral Leasing Act
issues. Were the Court to reverse the court of ap-
peals’ unanimous conclusion that the Mineral Leasing
Act is a threshold bar to the Alaska Pipeline, it would
then appear appropriate to remand the case to the
court of appeals for reconsideration of its disposition
of the NEPA issues. For the court of appeals’ deci-
sion not to address those issues rests primarily on the

.
‘= Serene aE

10

court’s conclusion that the NEPA issues are not
ripe for adjudication so long as it is necessary for
Congress to act before the Alaska Pipeline can be ap-
proved.

2. If the court of appeals was correct in its Min-
eral Leasing Act decision (and, as we have already
indicated, it clearly was), its decision not to address
the NEPA issues was a sound exercise of judicial
discretion, amply supported by decisions of this Court.
E.g., Poe v. Ullman, 367 U.S. 497, 503 (1961); id.,
at 528 (Mr. Justice Harlan, dissenting). The court
of appeals correctly reasoned that the need for prior
Congressional approval! renders the NEPA issues *

5’ The NEPA issues specifically raised by respondents below
(and considered by them te be set forth in Question 3 of the
instant petitions er fairly comprised therein, Sup. Ct. Rule
23 1 (c)) are, as set forth in respondents’ brief to the court
of appeals:

“I. Whether the Secretary has complied with the Act’s
requirement that he consider the alternative of oil and
gas pipelines in a common corridor through Canada,
when he: (a) did not systematically analyze the apparent
advantages of this alternative; and (b) devoted nearly
ou his efforts to the study of the proposal of the applicant
oil companies.

“IJ. Whether the Secretary has complied with the Act’s
requirement that he consider the alternative of deferring
éecision, when he did not evaluate the benefits of deferral
in reducing environmental degradation.

“III. Whether his “Final Impact Statement” was a
proper final statement when an adequate draft statement
never was prepared.

“TV. Whether the Secretary’s decision was arbitrary and
capricious because it was based upon speculation regard-

~ o — a - 7 - .

20

CONCLUSION

The sooner this phase of the litigation is termin-
ated, the sooner will the issues be confronted square-
ly by Congress. The public interest, including that
of sound judicial administration, will best be served
by denial of the petitions for a writ of certiorari.

Respectfully submitted,

Of Counsel:

Victor H. KRAMER
600 New Jersey Ave., N.W.
Washington, D.C.

PHILIP ELMAN
1320 19th Street, N.W.
Washington, D.C.

JAMES W. MOORMAN
8311 California Street
San Francisco, California

DENNIS M. FLANNERY

JOHN F. DIENELT

THOMAS B, STOEL, JR.
1751 N Street, N.W.
Washington, D.C. 20036

Attorneys for The Wilderness
Society, Environmental Defense
Fund, Inc., and Friends of the
Earth

EDWARD BERLIN
1712 N Street, N.W.
Washington, D.C. 20036

Attorney for David Anderson and
Canadian Wildlife Federation

THOMAS F. HOGAN
WARREN W. MATTHEWS, JR.
THEODORE R. DUNN
100 South Washington Street
Rockville, Maryland 20850

Attorneys for The Cordova
District Fisheries Union

A-1
APPENDIX OF DEVELOPMENTS

1. The fuel (oil and natural gas) shortages ex-
perienced in the Midwest and East this past winter
would seem to require a reevaluation by Secretary
Morton of his earlier conclusion that the West Coast
(which experienced no such shortages) is the “prefer-
able primary market for North Slope oil.” Gov. Pet.
App. C 1638a. The Midwest and East would be served
by the Canadian alternative; their oil shortages will
not be helped by the Alaska Pipeline.

2. Canadian Arctic Gas Study, Limited, a group of
Canadian and United States-owned companies (in-
cluding several of the companies proposing the Alas-
ka Pipeline) announced on February 27, 1973, that
it will file applications with United States and Cana-
dian Government agencies by late this summer for
permission to build a natural gas pipeline from Prud-
hoe Bay through the Mackenzie Valley. (Press Re-
lease, February 27, 1973).

3. Mackenzie Valley Pipe Line Research, Limited,
made up of several Canadian and United States
owned-companies (including companies owned by
firms active on the North Slope), issued, on January
22, 1973, a report summarizing its studies to date.
The report concluded that a trans-Alaska-Canada oil
pipeline is environmentally and economically feasible
and could be completed in a substantially shorter time
frame and at a substantially lower cost than the esti-
mates previously cited by the Interior Department.
(Press Release, January 22, 1973).

n . RIEL:
sym ORe Das te ScaN Nie AREA ELT NALIN SNL RIN MI IRENE EE nom 4
4
A

A-2

4. In addition to these private initiatives, studies
sponsored by the Canadian Government, referred to
by the court of appeals (Gov. Pet. App. A, 91la-92a),
have continued in the year since Secretary Morton
announced his decision, A comprehensive description
of the studies already completed and the anticipated
publication date of those nearing completion are con-
tained in Minutes of Proceedings and Evidence of the
Standing Committee on Indian Affairs and Northern
Development, Issue No. 4, Canadian House of Com-
mons, 29th Parliament, 1st Sess., March 1, 1973.

5. On March 18, 1973, in an interview on national
television in Canada, Canadian Minister of Energy,
Mines, and Resources, Donald Macdonald, strongly
reasserted his Government’s consistent position ' in fa-
vor of construction of a common corridor for oil and
gas pipelines through the Canadian Arctic: “If the
Americans came back and said to us, look, we’ve had

1 From the earliest days of the Interior Department’s con-
sideration of the Alaska Pipeline proposal, the Canadian
Government has consistently indicated that it favors construc-
tion of oil and gas pipelines through the Canadian Arctic. Ad.
Rec. 4.3.2.1, Vol. IV, Tab I, Exs. 1-16. The reasons it has cited
for this position are (a) its desire to avoid serious environ-
mental and economic damage to the coastal waters of British
Columbia that will be caused by the marine leg of the Alaska
Pipeline proposal; (b) its realization that environmental dis-
turbance will occur in any event from construction of a gas
pipeline across the Canadian Arctic; and (c) its desire to
open up Canada’s own Arctic oil and gas resources. See, e.g.,
letter from Minister Macdonald to Secretary Morton, May 4,
1972 (Plaintiffs’ Ex. 1 to the Deposition of Deputy Under-
secretary Carter).

xumenmne
‘ , oe rs ahr O NNO RI ES BAL AOS KAIS YD 7
— Eo iia — - .
>
, h

A-3

second thoughts on that Trans-Alaska Pipeline, we
would like to take you up on your willingness to
entertain an application about the oil line through
the Mackenzie Route, I think the interests of the
West Coast [of Canada] would dictate that he
Government of Canada should enable that kind of ap-
plication to go ahead.” Transcript of Interview 5.
In the same interview, Minister Macdonald renewed
the offer of the Canadian Government, made earlier
on April 19, 1972 (Ad, Ree, 4.3.2.1, Vol. IV, Tab I,
Ex. 26), to supply additional amounts of secure oil
to the United States for the period pending comple-
tion of the Canadian alternative. Transcript of In-
terview 4-5.

6. A recently released study by the Nationa] Oce-
anic and Atmospheric Administration (NOAA)—
MARMAP Red Flag Report (No. 1), Fish Larvae
Found In Environment Contaminated With Oil and
Plastic, January 18, 1973—indicates that the Gov-
ernment has heretofore grossly understated both the
extent, pervasiveness, and seriousness of oil pollution
in the world’s ocean waters.’ The Interior Depart-
ment’s own experts have concluded that over the life
of the Alaska Pipeline as much as 140,000 barrels of
oil may be spilled in an average year into the ocean

The study was the subject of editorial comment in The
New York Times (February 18, 1973) and The Washington
Evening Star (February 16, 1973) and extensive comment in
The Washington Post (February 13, 1973) and the CBS
Evening News (February 12, 1973).

hE RATE TY aii

A-4

waters of the Northeast Pacific (along the coasts
of the United States and Canada) as a result of cas-
ualties involving tankers carrying North Slope oil.
Final Impact Statement, vol. 4, p. 474. The Canadian
alternative would, of course, require no marine trans-
port of North Slope oil.

a te

Ra eS ER ie bia NTE eS BNE LN ES | AONE eg Bt SER IY TIPE LEA pM Nes height Pind

|
4
:
t
4

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0251%3A2. Public record. Not legal advice.