Legal Issues Related to Proposed Drilling for Oil and Gas in the Arctic National Wildlife Refuge (ANWR)

Congressional research reportMay 4, 2005

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Order Code RL31115

CRS Report for Congress

Received through the CRS Web

Legal Issues Related to Proposed

Drilling for Oil and Gas in the

Arctic National Wildlife Refuge (ANWR)

Updated May 4, 2005

(name redacted)

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

Legal Issues Related to Proposed Drilling for Oil and

Gas in the Arctic National Wildlife Refuge (ANWR)

Summary

Congress is again considering whether to permit drilling for oil and gas in the

coastal plain of the Arctic National Wildlife Refuge (ANWR), Alaska, to designate

the area as wilderness, or to retain the status quo of maintaining the area as a Refuge

without drilling. This area is rich in wildlife and wilderness values, but may also

contain significant oil and gas deposits. H.R. 567 and S. 261 have been introduced

in the 109th Congress to designate the coastal plain of ANWR a wilderness, but H.R.

6 has passed the House. Title XXII of the bill would authorize oil and gas leasing in

ANWR. Both the House and Senate have approved H.Con.Res. 95, a budget

resolution that may necessitate revenues from oil and gas development in the Refuge

to meet the budget reconciliation targets, and allow enactment of such legislation

without filibuster. This report provides background on the legal issues surrounding

ANWR development proposals, and will be updated as circumstances warrant. For

an updated summary of current actions on bills, see CRS Issue Brief IB10136, Arctic

National Wildlife Refuge (ANWR): Controversies for the 109th Congress.

H.R. 6 would authorize leasing in ANWR and contains a 2,000 acre limitation

on the “footprint” of leasing development in the Coastal Plain. However, if the

current statutory prohibition against production of oil and gas anywhere in the Refuge

is repealed, then oil and gas development and related activities could occur not only

on the federal lands, but also on Native lands within the Refuge. Absent express

language on the point, an acreage limitation would not apply to some, and possibly

not to any, of the Native lands, in which case some or all of the more than 100,000

acres of such lands in the Refuge (inside and outside the officially designated Coastal

Plain) could be developed. A 1983 Agreement with the Arctic Slope Regional

Corporation (ASRC), a Native Regional Corporation, would govern oil exploration

on ASRC subsurface and associated surface rights in the Refuge, unless these

provisions are superseded by statute or regulations, and some assert that the

environmental terms of the agreement are lenient. ASRC agreed to comply with

statutes and regulations to protect wildlife, habitat, and the environment of the

Coastal Plain. It is unclear whether some or all of ASRC’s lands are subject to the

2,000 acre limit, and how that acreage might be allocated among ASRC and federal

lessees.

H.R. 6 gives primary responsibility for leasing to the Secretary of the Interior

acting through the Director of the Bureau of Land Management rather than the Fish

And Wildlife Service, the agency that implemented the oil exploration program for

the Coastal Plain. The environmental standard in H.R. 6 — “no significant adverse

effect” — has been used in the past, but could allow a range of adverse effects

compared to other standards that have also been used. H.R. 6 also would limit the

NEPA process applicable to leasing in ANWR, and limit and expedite judicial

review. The bill states that leasing is to be under the Mineral Leasing Act (MLA),

yet would establish a 50/50 revenue sharing formula different from the 90/10 formula

in the MLA, a fact that might raise issues related to the Alaska Statehood Act.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. Environmental Constraints. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

(A). Administration of Leasing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

(B). Compatibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

(C). Environmental Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

(D). Technology Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

(E). Specific Environmental Protections . . . . . . . . . . . . . . . . . . . . . . . . 9

(F). Possible Effects on International Polar Bear Agreement . . . . . . . 12

(G). Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

II. Native Lands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

(A). The Nature and History of Native Rights in ANWR . . . . . . . . . . 14

(B). Current Bill Provisions and Issues . . . . . . . . . . . . . . . . . . . . . . . . 22

III. Access, Rights of Way, and Exports. . . . . . . . . . . . . . . . . . . . . . . . . . . 29

IV. Compliance with NEPA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

V. Judicial Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

VI. Disposition of Leasing Revenues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Legal Issues Related to Proposed

Drilling for Oil and Gas in the

Arctic National Wildlife Refuge (ANWR)

Introduction

Congress is currently considering whether to permit drilling for oil and gas in

the coastal plain of the Arctic National Wildlife Refuge (ANWR), to designate the

area as wilderness, or to retain the status quo of maintaining the Refuge without

drilling.1 Current law prohibits the production of oil and gas in the Refuge, but high

prices for oil and natural gas have renewed debate over whether to open the Refuge

to development. On April 21, 2005, the House passed H.R. 6, a comprehensive

energy bill that includes Title XXII, Arctic Coastal Plain Domestic Energy, opening

the Refuge to oil and gas development. On April 28, 2005, both the House and

Senate agreed to H.Con.Res. 95, a budget resolution that may necessitate oil and gas

drilling in the Refuge to meet the budget reconciliation targets, and could permit

legislation on such drilling to be enacted on a simple majority vote, without the

possibility of a filibuster.2

The land ownerships and laws relevant to possible development in the Refuge

are complex, and the policy choices controversial.3 The environmental protections

provided in H.R. 6, and the effects on the Refuge and its wildlife that might result

from oil and gas development are central to the debate on whether to open the Refuge

to drilling. Attention has focused on § 2207(a)(3) of H.R. 6, that would impose a

2,000 acre limit on the surface of the Coastal Plain that can be covered with support

structures associated with oil and gas development. However, this limit may not

apply to some or all of the more than 100,000 acres of Native lands in the Refuge.

Legal issues that relate to possible development of the Refuge and the recent

proposals regarding possible leasing in ANWR are discussed in this report. This

report will be updated as circumstances warrant.

See CRS Report RL31278, Arctic National Wildlife Refuge: Background and Issues, (n

ame redacted), coordinator.

If legislation opening ANWR were to be a part of a reconciliation measure, under the

Congressional Budget Act of 1974, debate would be limited in the Senate to 20 hours.

Amendments could still be offered, however. Section 310(e), P.L. 93-344, 88 Stat. 315, 2

U.S.C. §641.

See CRS Issue Brief IB10136, Arctic National Wildlife Refuge (ANWR): Controversies for

the 109th Congress, by (name redacted), (name redacted), and (name redacted).

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Background

The Arctic National Wildlife Refuge is managed by the United States Fish and

Wildlife Service (FWS) and consists of approximately 19 million acres located at the

Northeast corner of Alaska directly adjacent to Canada. The coastal plain of the

Refuge on the Beaufort Sea is approximately 1.5 million acres and is the part of the

Refuge that is richest in wildlife and migratory birds, including the Porcupine caribou

herd, polar bears, musk oxen, eagles, snow geese, and many others. The coastal plain

is directly east of Prudhoe Bay, a state-owned oil field that has provided a large

volume of oil, and many experts believe that significant deposits of oil and natural

gas may exist under the Refuge as well. The presence of biological and wilderness

values together with the potential for large hydrocarbon deposits results in the current

controversy over whether to allow oil drilling in the Refuge.

All lands on the North Slope were withdrawn January 22, 1943, by PLO 82.4

In November 1957, an application for the withdrawal of lands to create an Arctic

Wildlife Range was filed to protect the area’s wealth of wildlife and migratory birds.

Under the regulations in effect at that time, this application “segregated” the lands

in question, removing them from disposal. This fact was important because on July

7, 1958, the Alaska Statehood Act was passed and on January 3, 1959, Alaska was

formally admitted to the Union. On December 6, 1960 (after statehood), the

Secretary of the Interior issued Public Land Order 2214, reserving the area as the

Arctic National Wildlife Range.5

The Supreme Court has held that the initial segregation of lands before

statehood was sufficient to prevent the passage of ownership of certain submerged

lands within the Refuge to the State of Alaska at statehood.6 If this ruling had been

in favor of Alaska, certain lands beneath the rivers in the coastal plain might have

belonged to the state, which could have developed the resources in them, including

the oil, gas, gravel, and water.

In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA)7

to resolve Native claims against the United States. This act provided the opportunity

for the selection and conveyance of lands to Native groups — usually either the

surface estate of lands to Native Village Corporations, or the subsurface estate to

Native Regional Corporations, associated with the Village Corporations within each

Region. Usually, the Regional Corporations could receive the lands beneath the

Village Corporations in their area, but subsurface lands beneath pre-1971refuges

were not available, and in-lieu lands were substituted for them. Under § 22(g) of

ANCSA, surface lands conveyed in such refuges were subject to the regulations

applicable to the particular refuge of which they were a part.

8 Fed. Reg. 1,599 (February 4, 1943).

25 Fed. Reg. 12,598 (December 6, 1960). Other actions have changed the boundaries of

the Refuge, but are not relevant to this analysis of leasing on the coastal plain.

United States v. Alaska, 521 U.S. 1 (1997).

P.L. 92-203, 85 Stat. 688, 43 U.S.C. §§ 1601 et seq.

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In 1980 Congress enacted the Alaska National Interest Lands Conservation Act

(ANILCA),8 which, among other things, renamed the Range9 to be the Arctic

National Wildlife Refuge, and expanded the Refuge to include an additional 9.2

million acres, mostly to the south.10 Section 702(3) of ANILCA designated much of

the original Range as a wilderness area, but did not include the coastal plain. Instead,

Congress postponed decisions on the development or further protection of the coastal

plain. Section 1002 of ANILCA directed that all of the resources of the coastal plain

of the Refuge be studied. (As a result, the coastal plain is sometimes referred to as

the “1002 area.”) The 1002 area was administratively articulated as excluding the

three townships of land belonging to the Kaktovik Inupiat Corporation (KIC), a

Village Corporation. However, these lands geographically are on the coast of

ANWR, and are very important to the wildlife and scenic resources of the area.

Pursuant to § 1431(g) of ANILCA, KIC was entitled to receive approximately 19,588

additional acres within the Coastal Plain, making a total of more than 92,000 acres

of KIC lands in the Refuge. Section 1003 of ANILCA prohibited oil and gas

development in the Refuge as a whole, and “leasing or other development leading to

production of oil and gas from the range” unless authorized by an act of Congress.11

In 1983 the United States and the Arctic Slope Regional Corporation (ASRC),

a Native Regional Corporation, executed an agreement (“the 1983 Agreement”)

embodying an exchange of lands under which ASRC would receive title to the

subsurface estate beneath the KIC surface lands in the Refuge. Normally, ASRC

could not have received these lands because they were in a refuge. By the terms of

the 1983 Agreement, the ASRC lands in ANWR cannot be developed unless

Congress opens ANWR, the ASRC lands, or both to oil development. Conversely,

if Congress opens ANWR, then the more than 92,000 acres of Native lands (KIC

surface/ASRC subsurface) in the four townships within the Refuge could be

developed. These extensive Native holdings would be affected by the authorization

of oil and gas development on the coastal plain, and, in turn, could also affect the

Refuge and its resources. In addition, there are individually owned Native allotments

within the Refuge that might be developed if oil and gas drilling is allowed. All

types of Native lands within the Refuge total more than 100,000 acres. The separate

environmental constraints of the 1983 Agreement on ASRC’s exploratory activities

apply unless they are superseded by statute or regulations, and ASRC also agreed to

be bound by regulations on federal leases that are designed to protect the

environment of the coastal plain. Whether particular limitations, such as the 2,000

acre limit, would apply is not clear at this time.

P.L. 96-487, 94 Stat. 2374, 16 U.S.C. §§ 3101 et seq.

President Carter by Proclamation 4729 of February 29, 1980 had renamed the Range “The

William O. Douglas Arctic Wildlife Range.” ANILCA did not address this proclamation,

but renamed the lands comprising the original Range and the added lands as the Arctic

National Wildlife Refuge.

Section 303(2).

It is not clear whether this language was intentional, but it may have been intended to

allow preliminary activities in the additional lands that were added to the Refuge.

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As interest in the possible leasing of the coastal plain has increased, review of

several legal aspects of possible drilling in the Refuge appears timely.

Issues

I. Environmental Constraints.

One of the most controversial aspects of any consideration of possible leasing

in the Refuge is what the environmental effects of leasing are likely to be. There

have been vigorous assertions on both sides — either that the bills that have been

considered are highly protective of the environment, or that they are not. Hence the

environmental aspects of any bills are of particular interest. Some of the most critical

elements in an analysis of environmental provisions of any bills are: 1) the agency

that would administer the leasing program; 2) the compatibility of leasing with the

purposes of the Refuge; 3) the standard for environmental protection and how might

it function in practice; 4) the level of industrial technology required; 5) the

protections that would be statutorily provided with respect to the wildlife resources

of the Refuge; 6) compliance with the National Environmental Policy Act; 7) the

2,000 acre “footprint” limitation; and 8) the extent to which administrative decisions

and actions implementing a leasing program would be judicially reviewable. This

last item will primarily be discussed later in this report under the heading “Judicial

Review.” This section discusses only the environmental constraints applicable to the

federal lands. For a discussion of possible environmental constraints on Native

lands, see “Native Lands” below.

(A). Administration of Leasing. Under the National Wildlife Refuge

System Administration Act (Refuge Administration Act) on the management of the

National Wildlife Refuge System, it is the Secretary of the Interior acting — “through

the United States Fish and Wildlife Service” — who is to administer Refuge lands.12

This language was added by Congress in 1976 to clarify that management of refuges

could not be administratively assigned to other agencies.13 Several provisions in the

Refuge Administration Act address the management of refuges in Alaska. For

example, planning for the management of refuge lands in Alaska is to be governed

by the refuge planning provisions of ANILCA,14 and § 304(g) of ANILCA provides

planning procedures for refuges in Alaska and other provisions on refuge

management.

Under current law applicable to non-Alaskan refuges, when evaluating whether

to approve an activity in a refuge, the Director of the FWS (or an FWS officer to

whom the duties are delegated) may approve an activity only if it is compatible with

the major purposes for which the System and the particular unit were created.

Longer-term uses must be compatible with all the purposes, major or otherwise, of

both the System and the particular unit. (16 U.S.C. § 668dd(d)). Under § 304 of

16 U.S.C. § 668dd(a)(1).

P.L. 94-223, 90 Stat. 199.

Section 7(a) of P.L. 105-57; 16 U.S.C. § 668dd(e)(1)(A).

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ANILCA, the Secretary is authorized to enter into cooperative management

agreements with Native Corporations, the state, or political subdivisions of the state

with respect to lands within, adjacent to or near any national wildlife refuge, which

agreements shall provide that the land subject to the agreement shall be managed by

the owner or occupant in a manner compatible with the major purposes of the refuge.

Section 304 of ANILCA also generally withdraws all public lands including whatever

submerged lands, if any, were retained in federal ownership at the time of statehood,

but does not withdraw them from the operation of mineral leasing laws. Similarly,

the Refuge Administration Act does not withdraw non-Alaskan refuges from possible

oil and gas leasing, but many individual units are so withdrawn and leasing is

allowed on very few.

Also with respect to refuges in Alaska, the Refuge Administration Act expressly

subjects resource management by any other agency of the federal government under

cooperative agreements to direct supervision by the FWS:

With respect to refuge lands in the State of Alaska, those programs relating to the

management of resources for which any other agency of the Federal Government

exercises administrative responsibility through cooperative agreement shall

remain in effect, subject to the direct supervision of the United States Fish and

Wildlife Service, as long as such agency agrees to exercise such responsibility.15

Although the Bureau of Land Management (BLM), another agency also in the

Department of the Interior, is currently the general mineral development manager for

the United States,16 the Mineral Leasing Act does not specify that the Secretary of the

Interior is to administer leasing through that agency. Current mineral leasing

regulations recognize the authority of FWS over the wildlife resources on refuge

lands and reserve considerable authority to the Director of FWS with respect to oil

and gas leasing in Refuges:

(a)... Sole and complete jurisdiction over such lands for wildlife conservation

purposes is vested in the Fish and Wildlife Service even though such lands may

be subject to prior rights for other public purposes or, by the terms of the

withdrawal order, may be subject to mineral leasing.

(b)... [t]here is to be no drilling or prospecting under any mineral lease heretofore

or hereafter issued on lands within a wildlife refuge except with the consent and

approval of the Secretary with the concurrence of the Fish and Wildlife Service

as to the time, place and nature of such operations in order to give complete

protection to wildlife populations and wildlife habitat on the areas leased, and all

such operations shall be conducted in accordance with the stipulations of the

Bureau on a form approved by the Director [of the National Wildlife Refuge

System].17

This protective posture is repeated in another regulation that provides:

16 U.S.C. § 668dd(a)(1).

See Secretarial Order 3087, December 2, 1982, as amended February 7, 1983 (48 Fed.

Reg. 8983).

43 C.F.R. § 3101.5-1.

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Leases shall be issued subject to stipulations prescribed by the Fish and Wildlife

Service as to the time, place, nature and condition of such operations in order to

minimize impacts to fish and wildlife populations and habitat and other refuge

resources on the areas leased. The specific conduct of lease activities on any

refuge lands shall be subject to site-specific stipulations prescribed by the Fish

and Wildlife Service.18

Under current regulations, refuges in Alaska that are open to leasing are not to

be available until the FWS has first completed compatibility determinations.19 A new

compatibility policy and new regulations were published on October 18, 2000, and

became effective November 17, 2000.20 “Compatible use” is defined as a “proposed

or existing wildlife-dependent recreational use or any other use of a national wildlife

refuge that, based on sound professional judgment, will not materially interfere with

or detract from the fulfillment of the National Wildlife Refuge System mission or the

purpose(s) of the national wildlife refuge.”21 As will be discussed, Native lands in

Alaskan refuges that are subject to certain restrictions under § 22(g) of ANCSA are

expressly subject to the special regulations on compatibility in 50 C.F.R. 25 and 26.22

PLO 2214, which withdrew lands to create the original Arctic National Wildlife

Range, withdrew the lands from operation of the mining laws, but not from the

mineral leasing laws. Congress in § 1003 of ANILCA reserved to itself the decision

of whether to lease the coastal plain area.23 The current bills would authorize oil and

gas leasing and address both management and compatibility.

H.R. 6 states in § 2203(a) that leasing is to be under the Mineral Leasing Act

(MLA)24 and administered by the Secretary of the Interior acting through the Director

of the Bureau of Land Management (BLM). As noted above, generally leasing under

the MLA is conducted by the BLM, with the concurrence of and under stipulations

provided by the Director of FWS when the leasing is in a refuge. Because there is

no reference to the usual powers of the Director of FWS, and because, under § 2203

of H.R. 6 the Secretary is to impose environmental constraints through new leasing

regulations and other measures, the role of the FWS is not yet clear.

In 1981, a court found the administrative assignment of responsibility for

studying the coastal plain area under § 1002 of ANILCA to the United States

Geological Survey rather than to FWS to be unlawful because the Refuge

Administration Act requires that the Refuge System be administered by the Secretary

of Interior through FWS, absent a clearly expressed legislative intent to the

43 C.F.R. § 3101.5-4.

43 C.F.R. § 3101.5-3.

65 Fed. Reg. 62484 and 65 Fed. Reg. 62458, respectively.

50 C.F.R. § 25.12(a) and see 16 U.S.C. § 668ee, which is nearly identical.

50 C.F.R. § 25.21(b).

16 U.S.C. § 3143.

This language also raises issues in connection with the revenue-sharing provisions. See

“Revenues” below.

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contrary.25 H.R. 6 expressly assigns leasing responsibilities to the BLM “in

consultation with the Director of [FWS].” Arguably, placing BLM in charge of the

leasing program for ANWR and evidently reducing the otherwise applicable role of

FWS could divorce the mineral development aspects from the biological/wildlife

purposes and the expertise of FWS personnel, and may result in the coastal plain of

ANWR receiving less protection than lands in other refuges do under current law and

regulations. However, the bill does not expressly modify the usual authority of FWS

to manage and protect the Refuge resources and to condition mineral leases.

Therefore, an argument can be made that FWS retains that authority, and would

develop the environmental constraints on surface disturbance in the leasing

regulations. However, the intent of Congress in this regard is not clear. As the

legislation evolves, the respective jurisdictions of BLM and FWS in this context may

be clarified.

Both the 1983 Agreement and many past bills in Congress continued

responsibility for ANWR leasing with the FWS, subject to congressionally enacted

direction. Pursuant to §1002 of ANILCA, the FWS adopted regulations (see 50

C.F.R. Part 37) governing the exploratory activities that took place in the Refuge.

(B). Compatibility. Section 2203(c)(1) of H.R. 6 states that for purposes of

the National Wildlife Refuge Administration Act, the oil and gas leasing program

and activities authorized in that section are deemed to be compatible with the

purposes for which the Arctic National Wildlife Refuge was established, and that no

further findings or decisions are required to implement this determination.

(Emphasis added.) This provision both answers the compatibility question and

appears to eliminate the usual compatibility determination processes for purposes of

refuge management. It does not, however, resolve all ambiguities as to what extent

and by whom impacts resulting from activities occurring on federal and Native lands

may be regulated. (See Native Lands section below.) Also, the general statement

that leasing “activities” are compatible arguably may encompass a great many actions

such as construction and operation of port facilities, staging areas, personnel centers,

etc.

(C). Environmental Standard. H.R. 6 uses “no significant adverse effect”

on fish and wildlife, their habitat, subsistence resources, and the environment as the

standard to guide leasing. This phrase is not defined, but has been used in the past.

It was used in § 1002 of ANILCA as the standard for the limited exploration of the

coastal plain allowed under that section, it is used throughout the 1983 Agreement,

in past bills that would have authorized leasing in ANWR and it is used with respect

to leasing in the NPRA.26 Arguably, it could be seen as analogous to the standard

Trustees for Alaska v. Watt, 524 F. Supp. 1303 (D. Ak. 1981), aff’d 690 F. 2d 1279, 1307

(9th Cir. 1982).

See H.R. 4 and S. 388 in the 107th Congress, and H.R. 1320 and S. 1220, 102d Congress.

H.R. 1320 defined the term as follows: “The term ‘significant adverse effects’ means those

effects on habitat quality or availability which, despite the reasonable application of

mitigation measures involving appropriate technology, engineering, and environmental

control measures, including siting and timing restrictions, are likely to result in widespread

(continued...)

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used in the National Environmental Policy Act (NEPA), which is “significant effect

on the quality of the human environment.” (In practice this has been interpreted as

addressing only significant adverse effects.) Although the contexts are different,

judicial interpretation of NEPA may provide guidance in applying the standard.

The standard of significant adverse effects might allow considerable

environmental harm before the threshold is crossed. Although the standard has been

used before, Congress has also chosen other, more protective, language at times. For

example, the language Congress used with respect to exploration in environmentally

sensitive areas of the National Petroleum Reserve - Alaska was to “assure the

maximum protection of such surface values consistent with the requirements of this

act for the exploration of the reserve.”27 Another example of other language

Congress has used is the Wilderness Act of 1964, which requires that mineral leases

in wilderness areas “shall contain such reasonable stipulations as may be prescribed

by the Secretary of Agriculture for the protection of the wilderness character of the

land consistent with the use of the land for the purposes for which they are leased,

permitted, or licensed.28 A statute that addresses already existing mining rights in

national parks requires that mining rights be “subject to such regulations prescribed

by the Secretary of the Interior as he deems necessary or desirable for the

preservation and management of those areas.29 In ANWR, Congress would be

authorizing new leasing in a special statute, and hence would have greater latitude

to impose a protective standard without infringing upon existing rights.

(D). Technology Standard. Section 2203(a) of H.R. 6 would require the

use of the “best commercially available technology for oil and gas exploration,

development, and production” and § 2207(a)(2) would require that standard for all

new exploration, development, and production operations. A computer search

indicates that the phrase “best commercially available technology” is not currently

used in the U.S. Code, and does not have any available judicial interpretation.30

Because it refers to technology that already is more widely available, it may be a

more lenient standard than “best available technology economically achievable,” or

“best practicable control technology” — both of which standards are used in the

Clean Water Act.31 Section 2203(a)(2) goes on to direct that the best commercially

available technology standard be applied “in a manner that ensures the receipt of fair

(...continued)

long-term reductions in the natural abundance or distribution of a species of fish or wildlife

on the coastal plain.” See also, 42 U.S.C. § 6508 re APRA.

42 U.S.C. § 6504(b).

Act of September 3, 1964, 78 Stat. 890, 893, 16 U.S.C. § 1133(d).

P.L. 94-429, 90 Stat. 1342, 16 U.S.C. § 1902.

Several provisions in current law use the phrase “commercially available technology” and

at least two provisions call for technological improvements above that standard. See 42

U.S.C. § 5906(b)(1) re non-nuclear energy research; 42 U.S.C. §§ 13331 and 13351 re clean

coal technology.

33 U.S.C. § 1311.

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market value for the public for the mineral resources to be leased.” It is not clear

how this additional requirement might affect the application of the standard.

(E). Specific Environmental Protections. H.R. 6 would provide some

specific environmental protections, but would leave much to the discretion of the

Secretary. The evaluations of environment effects made by the Secretary, and the

particular actions taken by the Secretary in the exercise of the Secretary’s discretion

would be insulated under § 2208 by the stringent provisions on judicial review. (See

“Judicial Review” below.) This fact — that the Secretary’s environmental choices

could be difficult to overturn — is relevant to many of the provisions discussed in

this part.

2,000 Acre Limitation. Section 2207(a)(3) of H.R. 6 contains an acreage

limitation on surface area that can be covered by production and support facilities.

The language provides that the maximum amount of surface acreage covered by

production and support facilities, including airstrips and any areas covered by gravel

berms or piers for support of pipelines, not exceed 2,000 acres on the Coastal Plain.

The reference to surface acreage “covered by” production and support facilities

appears to exclude the parts of structures and facilities that don’t touch the ground,

e.g. the pipes in elevated pipelines. Two thousand acres is a small amount relative

to the 1.5 million acre plain. However, given that the Secretary would be required

to lease not less than 200,000 acres in the first lease sale, a greater footprint might

prove necessary, and this limitation would be changed. Also, it is likely that oil

development facilities would not be in a single, consolidated footprint, but would be

scattered over a much larger area and be connected by pipelines and possibly roads

that would impact a much larger area.32 Equally important, if oil and gas were

discovered in commercial quantities, it appears that support and development

facilities could be constructed on some or all of the more than 100,000 acres of

Native lands in the Refuge, free of the 2,000 acre limitation. See “Native Lands”

below.

Special Areas. Section 2203(e) of H.R. 6 provides that the Secretary, “after

consultation with the State of Alaska, City of Kaktovik, and the North Slope

Borough,” is authorized to designate up to a total of 45,000 acres of the Coastal Plain

as “Special Areas” and to close such areas to leasing if the Secretary determines that

they are of “such unique character and interest so as to require special management

and regulatory protection.” However, closure is discretionary and designated areas

could be leased if the Secretary prohibits surface occupancy by lessees.33 This

provision does not expressly require consultation with the FWS, and the Secretary

could implement the advice of state and local entities as to designation, special

protection, and possible closure of unique and special areas.

For additional discussion of issues related to technology and the “footprint” of

development, see CRS Report RL32108, North Slope Infrastructure and the ANWR Debate,

by (name redacted).

Section 30403(e) of H.R. 6 also contained a paragraph (4) entitled “Directional Drilling,”

which permits “horizontal drilling” under Special Areas. Although the two terms are similar

in common usage, directional drilling may be the broader term and the same term should be

used in both the caption and substance of the section.

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This section would also impose an acreage limit of 45,000 acres (out of the 1.5

million coastal plain acres) that could be designated as Special Areas for optional

special protection or closure. The Secretary is directed to designate the Sadlerochit

Spring area (approximately 4,000 acres), as a Special Area, and to manage the

Special Areas “to protect and preserve the area’s unique and diverse character

including its fish, wildlife, and subsistence resource values.” The closure authority

in the bill is stated as being the sole source of closure authority. This might

eliminate any separate authority under the Refuge Administration Act to close areas,

and also raises the question of whether closure is an available option if it is

determined to be necessary to avoid jeopardizing a species under the Endangered

Species Act. Possibly ESA-necessitated closures could exhaust the acreage available

for closure, making that tool unavailable where closure is merely desirable to avoid

harm, rather than being crucial to survival of a species.

Seasonal Closures. Section 2206(a)(2) provides that the Secretary may use

lease terms to close, on a seasonal basis, portions of the Coastal Plain to exploratory

drilling activities as necessary to protect caribou calving areas and other species of

fish and wildlife, and § 2207(d)(2) authorizes “[s]easonal limitations on exploration,

development, and related activities, where necessary, to avoid significant adverse

effects during periods of concentrated fish and wildlife breeding, denning, nesting,

spawning, and migration,” language that did not expressly include the word

“production.” It is not clear what would have needed to be shown to demonstrate the

necessity of seasonal closures, or to demonstrate effects sufficiently significant and

adverse to justify closure. It also is not clear whether seasonal closure areas would

have counted toward the acreage limitation on closures, but probably they would not.

Environmental Regulations. Under §2203 of H.R. 6, the Secretary is to

develop regulations to govern the leasing of the coastal plain within 15 months of

enactment, and under § 2204(e)(1), the first lease sale is to be held within 22 months

after enactment. See the heading “NEPA Compliance” below for a discussion of the

fact that other bill provisions would eliminate comprehensive new environmental

studies in order to achieve this accelerated leasing schedule.

The leasing regulations required under the House bill are required to include

regulations that relate to the protection of the fish and wildlife, their habitat,

subsistence resources, and the environment of the Coastal Plain. In addition, the

Secretary is directed to impose terms and conditions on leases to address

environmental concerns. The environmental provisions would undoubtedly provide

some protections, but the net import of some of the provisions is unclear.

Under § 2206(a)(6), environmental conditions could be a part of a lease “as

required” pursuant to § 2203(a)(2). (Emphasis added.) This language might mean

only as required to avoid “significant adverse effects.”

Reclamation. The reclamation standard in §2206(a)(5) requires reclamation

to a condition capable of supporting the uses which the lands were capable of

supporting prior to exploration or development or “upon application by the lessee,

to a higher or better use as approved by the Secretary.” Under general zoning law,

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“higher or better” uses are those that “bring the greatest economic return.”34 Uses

that are ‘higher and better’ than undeveloped wildlife habitat could include many

conditions.

Compliance with Other Laws. Section 2207(d) of H.R. 6 requires that the

proposed regulations and lease conditions comply with all applicable provisions of

Federal and State environmental law, which would include a broad range of

requirements. However, the applicable laws governing management of refuges might

be modified by the legislation, as indicated. Section 2207(d)(1) requires protective

standards “at least as effective as the safety and environmental mitigation measures

set forth in items 1 through 29 at pages 167-169 of the “Final Legislative

Environmental Impact Statement” (April 1987) on the Coastal Plain.” These

measures include many beneficial items, but some of the measures, by regulating

certain activities may basically condone those activities — e.g. the provisions that

address roads and other permanent infrastructure facilities, incinerators, marine

facilities, docks, causeways, etc. Although the H.R. 6 language requires the new

ANWR leasing standards to be “at least as effective as” the 1987 measures and

therefore allows more stringent measures, additional statutory requirements and

guidance might provide clarity regarding some of those important infrastructure

topics and to guide development on both the federal and the Native Lands in the

Refuge.

Site-Specific Analyses. Section 2207(b) of H.R. 6 directs the Secretary to

require a site-specific analysis of the probable effects, if any, that drilling or related

activities will have on fish and wildlife, their habitat, and the environment. (See the

discussion of NEPA Compliance below.) Section 2207(b)(2) requires that a plan be

implemented “to avoid, minimize, and mitigate (in that order and to the extent

practicable)” any significant adverse effect identified under paragraph (1). This

preference for avoiding adverse effects is clearly a protective posture. However,

under § 2207(b)(3) this plan is to be developed “after consultation with” the agency

or agencies having jurisdiction over matters mitigated by the plan. Apparently, this

last reference is to the FWS, which agency under current law has the authority to

develop and approve of such plans and activities, rather than merely to consult

regarding them.

Exploration. Section 2207(d)(3) requires that exploration activities be limited

to the winter and be “supported” by ice roads etc., but then also provides that the

Secretary may allow other exploration if the Secretary finds such exploration would

have no significant adverse effect on the fish and wildlife, their habitat, and the

environment of the Coastal Plain. There is no similar requirement applicable to

production activities.

Roads. Similarly, § 2207(d)(4),(5),(7), and (12) relate to potential controls of

roads, transportation, and air traffic disturbance, but no specific controls are

specified. Here too, the regulations depend on the Secretary’s interpretation and

wording of any prohibitions. This is also true with respect to the requirements for

“appropriate” controls on explosives, sand and gravel extraction, etc.

Black’s Law Dictionary (6th ed. 1990).

CRS-12

Penalties. It may also be asked what penalties would be available to enforce

the environmental protections and other lease requirements. H.R. 6 does not

specifically address penalties for violation of lease terms by a lessee. However, the

bill states that leasing in the Refuge would be under the MLA and that act provides

for cancellation of leases for infractions,35 and also provides civil and criminal

penalties for leasing violations, including failure to comply with lease terms.36

Because of the ambiguity about the role of FWS regarding leasing activities, it was

not clear whether the penalties usually available for infractions on refuge lands would

continue to apply. If so, these include fines and imprisonment.37 Penalties for a

specific violation of another law, such as the Clean Air Act, arguably would still be

available under that law.

(F). Possible Effects on International Polar Bear Agreement.

Beginning in the sixties, concern grew regarding the protection of marine mammals,

including the polar bear. In 1972, the Marine Mammal Protection Act (MMPA) was

enacted. In 1973, the United States, Canada, Denmark, Norway and the former

Union of Soviet Socialist Republics developed an international agreement on polar

bear conservation.38 This Agreement was ratified by the United States in 1976.

The Agreement prohibits the “take” of polar bears, which term is defined as

“hunting, killing and capturing.”39 Article III sets out five exceptions to the taking

prohibition, which a party to the Agreement may allow. These exceptions include

several relating to traditional take by a party’s nationals; take for scientific purposes,

for conservation purposes, or to prevent serious disturbance of the management of

other living resources.

Article II of the Agreement requires certain actions to protect habitat of the

bears. Parties are to:

1) take “appropriate action to protect the ecosystem of which polar bears are a

part;”

2) give “special attention to habitat components such as denning and feeding

sites and migration patterns;” and

3) manage polar bear populations in accordance with “sound conservation

practices” based on the best available scientific data.

Recently, some critics have asserted that oil and gas development in the Arctic

may be inconsistent with or violate the Agreement in that such development could

result in the death of polar bears. A draft report to Congress raised questions in this

30 U.S.C. § 188.

43 C.F.R. Subpart 3163.

16 U.S.C. 668dd(f) and (g).

Agreement on the Conservation of Polar Bears, T.I.A.S. No. 8409, 27 U.S.T. 3918 (Nov.

15, 1973) (hereafter cited as Polar Bear Agreement).

Id., art.I(2).

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regard.40 One of the principal issues raised is that the MMPA permits the

unintentional taking of polar bears incidental to other lawful activities. The draft

report asserts that such take would be inconsistent with the Agreement because there

is no exception for such take in Article I or III and “if a lethal take were to occur

during activities conducted under incidental take authority, the United States

arguably could be considered to not be in compliance with the Agreement.”41

However, the argument can be made that all references to killing or taking polar

bears in the Agreement, whether in the prohibition or the exceptions sections, are to

intentional take. Given this fact, the argument could continue, it is not inconsistent

with the Agreement for an implementing law to permit but regulate incidental take.

That this could be an appropriate interpretation is bolstered by the wording of the

discussion accompanying the recommendation to ratify the Agreement, which also

discusses only intentional takes — whether through hunting, or for other specified

reasons.42 Furthermore, the State Department, in presenting the Agreement to the

President for transmission to the Senate for its advice and consent, took the position

that the MMPA provided adequate domestic legislation to implement the terms and

provisions set forth in the Agreement.

However, a more generalized argument could be made that the opening of

ANWR to leasing, with concomitant development of the Native coastal lands, either

per se or as such development progressed in actuality, could violate the pledge by the

United States to protect the ecosystem upon which the bears depend.43 In such an

eventuality recourse would be available to the other parties to the Agreement, but the

argument exists as a policy argument against such leasing activities, and at least one

commentator asserts that such leasing might result in an inconsistency with the

Agreement, such that either the Agreement or the MMPA should be amended.

The Polar Bear Agreement does not authorize incidental take within the polar

bear protection zone. Such takes are authorized under section 101(a)(5) of the

MMPA. Because the Agreement does not now prohibit harassment, an

inconsistency exists only to the extent such takes would be lethal, involve the

capture of bears, or be a product of habitat degradation or destruction. Because

there is potential for polar bears to be lethally taken incidental to activities such

as oil and gas operations, it is necessary to either amend the Agreement or to

amend the MMPA to prohibit such takes if consistency with the Agreement is the

goal. Takes by harassment could still be allowed under the MMPA, consistent

with the Agreement.44

Draft Report to Congress on Status of United States Implementation of the 1973

International Agreement on the Conservation of Polar Bears, Prepared by U.S. Fish and

Wildlife Service, Alaska Region, October, 1997. (No final report yet available.)

Id., at 9.

Executive Rep. No. 94-34 (1976).

It is possible that if climatic warming continues to reduce ice in the Arctic Ocean, that onshore denning might become increasingly important to the polar bears, thereby making

development more significant.

Donald C. Baur, Reconciling Polar Bear Protection under United States Laws and the

(continued...)

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(G). Discussion. There are no specific requirements in H.R. 6 that address

particular items of environmental concern, such as port and support facilities,

airstrips, disposal of wastes, gravel mining, water sources, etc. Many details of the

environmental constraints are left to the leasing regulations that are to be developed

by the Secretary with very little advance study and little statutory guidance other than

the avoidance of significant adverse effects. The role of the FWS is ambiguous, but

would be less than under its current authority. Many decisions relating to the

protection of the fish and wildlife resources of the Refuge and the protection of the

environment in general would be committed to the discretion of the Secretary, acting

through the Director of BLM, whose choices would be difficult to challenge under

the strict standards for judicial review. H.R. 6 would apparently rely principally on

the penalties available under the MLA. It is unclear whether the separate penalties

for violations in refuges would be available. Arguably, at the end of the potentially

lengthy period of mineral leasing activity, restoration of lands to current wildlife uses

would not necessarily be required.

II. Native Lands.

Section 2203(b) of H.R. 6 would repeal § 1003 of ANILCA, thereby permitting

oil and gas development on both the federal Refuge lands and on the Native lands

within the Refuge. Although geographically within the coastal plain of the Refuge,

most of the Native lands were administratively excluded from the “Coastal Plain” as

a defined term. Native lands in the Refuge total over 100,000 acres, and although

some of the most important elements in assessing the possible impacts of opening

ANWR to leasing involve the property interests of Native-Americans in the Refuge,

this aspect of leasing in the Refuge has been little discussed. Under a 1983

Agreement, separate environmental controls would apply to Native oil exploration

activities, unless the terms of the Agreement are superseded by statute or regulations.

Statutory and regulatory leasing requirements designed to protect wildlife and the

coastal plain would apply to development and production of ASRC oil, but it is not

clear to what extent specific provisions, such as the 2,000 acre limitation on the use

of the surface within the Coastal Plain, would apply. Both Native individuals and

Native Village and Regional Corporations have various interests relevant to the issue

of oil drilling in ANWR.

(A). The Nature and History of Native Rights in ANWR.

ANCSA. In 1971, Congress enacted the Alaska Native Claims Settlement Act

(ANCSA) to resolve Native aboriginal claims against the United States. ANCSA

provided for monetary payments and also created Village Corporations that received

the right to select the surface estate to approximately 22 million acres of lands in

close proximity to villages. A village located in or adjacent to a refuge could select

a certain amount of surface lands within the refuge,45 thereby maintaining traditional

ways of life. Under §22(g) of ANCSA, lands chosen in pre-ANCSA refuges were

(...continued)

International Agreement for the Conservation of Polar Bears, 2 ANIMAL LAW 9, 85

(1996)(footnote omitted).

Section 12(a)(1); 43 U.S.C. § 1611(a)(1).

CRS-15

subject to the laws and regulations governing the use of the refuge of which they

were a part.46 The Kakovik Inupiat Corporation (KIC), a Village Corporation in the

Refuge, received selection rights to three townships under ANCSA.47

ANCSA also created Regional Corporations which could receive subsurface

rights to some lands and either surface rights or full title to others. The Regional

Corporations typically were entitled to lands beneath the Village Corporation lands

with which they were associated. However, subsurface rights in pre-1971 National

Wildlife Refuges were not available, but in-lieu selection rights were provided to

substitute for such lands.48 Even though the shareholders of a Village Corporation

shared in the profits of the relevant Regional Corporation, the interests of a Regional

Corporation in maximizing the economic development of its subsurface estate may

not always coincide with the interests of a Village Corporation in possibly using the

surface estate for subsistence hunting and other traditional uses.

ANILCA. The 1980 ANILCA contained many provisions that followed up on

ANCSA. Section 1002 of ANILCA designated the “coastal plain” of the Refuge as

“the area identified as such in the map entitled ‘Arctic National Wildlife Refuge,’

dated August, 1980.” The map that is believed to be the original map referenced in

the act is a large foam-board panel that shows the three ANCSA-authorized KIC

townships marked in the same manner as is the exterior boundary of the Refuge, but

without any explanation of the intended meaning of the delineation. The boundaries

of the pool of lands from which KIC selections could be made also is depicted, so the

delineation could have been informational only, or could have been intended to

connote something more. The KIC lands are not differentiated by color from the rest

of the coastal plain or Refuge. The map depicted the large part of the Refuge

designated as “wilderness,” and by default the remainder of the Refuge is the coastal

plain. This map has now disappeared.

An agency map dated 1980 shows the boundaries of the KIC lands with those

boundaries crossed out by hand, but without explanation of when and by what

authority these marks appeared or what their intended significance was with respect

to whether the KIC lands, and whether they were regarded as being within the coastal

plain. Other maps also show the Refuge as a whole with the wilderness area so

marked, again arguably showing the coastal plain as the remainder.

Section 103(b) of ANILCA authorized the publication of a map and legal

description of each change in land management status effected by this act and “each

such description shall have the same force and effect as if included in this act ...”

However, only minor boundary adjustments — stated as an increase or decrease of

not more than 23,000 acres — were authorized, and only after notice in writing to the

Section 22(g), 43 U.S.C. § 1621(g).

A “township” is a unit of the federal surveying system that is a block of land 6 miles on

a side, divided into 36 mile-square sections, each of which contains 640 acres. Therefore,

a township consists of 23,040 acres.

43 U.S.C. § 1611(a)(1).

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Congress.49 The map published with the notice of the legal description of the

boundaries of National Wildlife Refuges in Alaska50 shows the Arctic National

Wildlife Refuge as a whole, the wilderness area within it, and the coastal plain as the

remainder. It does not show the native lands. The legal description of the boundaries

of the coastal plain published on April 19, 1983 as Appendix I to the final rule on

exploration of the coastal plain (50 C.F.R. Part 37), excludes the three ANCSAauthorized townships of KIC lands. The introductory material to the legal description

states: “By virtue of the map referred to in section 1002(b)(1), [which as discussed

above does not clearly exclude the native lands from the coastal plain] lands in which

the surface estate has already been conveyed to Kaktovik Inupiat Corporation ... are

excluded from the coastal plain, and therefore, a permit issued pursuant to

§1002(b)(1) cannot authorize exploration of those lands.”51 However, at this time,

the subsurface was still federal and its development was subject to federal regulation.

Further, it is important to note that geographically the KIC lands are on the coastal

plain and are important to the wildlife of the area.

Section 103(c) of ANILCA states that only the public lands within the

boundaries of an conservation system unit are deemed to be included as a portion of

the unit, and that non-public lands (i.e. conveyed Native (or state) lands) are not

subject to the regulations applicable solely to the public lands within such units. This

issue of separate regulations is addressed elsewhere in this report.

Under § 1431(g) of ANILCA, KIC was authorized to obtain additional lands,

and obtained the rights to a fourth township in the 1002 area. As a result, KIC has

surface rights to three townships along the coast of ANWR that are outside the

defined Coastal Plain, and one township inside that area, all totaling approximately

92,160 acres. However, all of the KIC lands are within the Refuge as a whole and

hence are subject to: 1) the restrictions on oil and gas development in § 1003 of

ANILCA; and 2) under § 22(g) of ANCSA and § 1431(g) of ANILCA, to the laws

and regulations governing the Refuge, as possibly modified by the other sections of

ANILCA discussed above.

Section 1431(o) of ANILCA, captioned “Future Option to Exchange, etc.,”

authorized the Arctic Slope Regional Corporation (ASRC), whose shareholders are

Inupiat Eskimos, to obtain subsurface rights beneath the KIC lands in ANWR upon

the occurrence of certain events. ASRC could obtain subsurface rights beneath lands

belonging to villages in the National Petroleum Reserve-Alaska or ANWR, if parts

of those two areas within a certain proximity to Native village lands were opened for

commercial oil and gas development within 40 years of the date of ANILCA. Under

this authority, ASRC would not have been authorized to obtain the subsurface

beneath the KIC lands in the Refuge until ANWR was opened for commercial

development. Furthermore, any oil and gas development of ASRC interests would

be subject to protective regulations “consistent with the regulations governing the

A township contains 23, 040 acres.

48 Fed. Reg. 7936, 7980 (February 24, 1983).

48 Fed. Reg. 16838, 16841, 16869 (April 19, 1983).

CRS-17

development of those lands with the Reserve or Range which have been opened for

purposes of development ....”

1983 Agreement. However, instead of proceeding at some future date with

an exchange under the §1431(o) authority, then Secretary of the Interior James G.

Watt on August 9, 1983 (four months after publishing the legal description of the

1002 area that excluded the KIC lands based on nonfederal mineral ownership),

entered into an exchange agreement (known as the “1983 Agreement” or the

“Chandler Lake Agreement” after lands acquired by the United States in the Gates

of the Arctic National Park) using the general exchange authority of § 1302(h) of

ANILCA. Under this Agreement, the United States received the surface rights to

certain lands elsewhere in Alaska and ASRC received the subsurface rights beneath

the KIC lands, but any oil and gas development of these lands was expressly

contingent on Congress authorizing such development.

Section 1431(o)(4) of ANILCA provides that the Secretary may promulgate

regulations regarding the subsurface estates acquired pursuant to that subsection to

protect the environmental values of the Reserve or Range consistent with regulations

governing the development of those lands within the Reserve or Range which have

been opened for purposes of development, including § 22(g) regulations. However,

that subsection of ANILCA did not apply to the ASRC exchange in ANWR since a

different exchange authority was utilized. Instead, the 1983 Agreement contained

considerable detail relating to exploration and environmental issues, thereby making

those features a matter of contract law. ASRC also agreed in the 1983 Agreement

that § 22(g) — and hence Refuge regulations — would apply to its lands, but with

significant additional terms.

Also as part of the Chandler Lake Agreement, ASRC was given the contractual

right to drill, within a certain window of time, up to three exploratory wells on the

KIC lands outside the 1002 area. One test well was drilled within the specified time,

but the results of that well have been kept confidential. However, full oil and gas

development of the ASRC lands was prohibited until and unless Congress opened the

coastal plain, the ASRC lands, or both, for such development.52 Conversely, if

Congress opens the coastal plain to development, the Agreement provides that ASRC

may proceed with development of its subsurface interests.

The Barrow Gas Field Transfer Act. The Barrow Gas Field Transfer Act

of 198453 addresses several North Slope issues, primarily involving exchange

agreements involving the Point Barrow gas fields, including a 1984 agreement on

that subject. It also refers to the August 9, 1983 Agreement (the ASRC/ANWR

Agreement), stating in §5(d):

All of the lands, or interest [sic] therein, conveyed to and received by Arctic

Slope Regional Corporation pursuant to this section of the ASRC Agreement and

pursuant to the August 9, 1983 agreement between Arctic Slope Regional

Corporation and the United States of America shall, in addition to other

Provisions B-1 and B-2 at 5-6 of Appendix 2 of the 1983 Agreement.

See P.L. 98-366, 98 Stat. 468, 471.

CRS-18

applicable authority, be deemed conveyed and received pursuant to exchanges

under section 22(f) of the Alaska Native Claims Settlement Act, as amended (43

U.S.C. 1601, 1621(f).

The committee report accompanying this act states that one purpose of the act

is to “ratify certain land exchanges and other agreements ....”54 It also states that

lands received by ASRC are to be regarded as though they had been obtained by an

ANCSA exchange:

Subsection (d) provides that all lands or interests therein conveyed to the Arctic

Slope Regional Corporation pursuant to this section or the Regional

Corporation’s 1984 agreement and pursuant to the August 9, 1983 Agreement

Between the Arctic Slope Regional Corporation and the United States are to be

deemed conveyed and received pursuant to exchanges under section 22(f) of the

Alaska Native Claims Settlement Act, as amended, in addition to other applicable

authority. The purpose of this subsection is to ensure that the lands and interests

in land received by Arctic Slope Regional Corporation in the two referenced

exchanges are treated as lands received under section 22(f) exchanges, thereby,

for example resulting in the applicability of subsection 21(c) and (d) [re taxation]

and subsection 23(j) [re interim conveyances and underselections] of the Alaska

Native Claims Settlement Act, as amended to the lands and interests in land so

received.55

The floor debates in both the House and Senate are very brief and focus almost

exclusively on the Barrow gas provisions and related exchange agreements.56

Arguably, if the exchange is made under §22(f) of ANCSA, the ASRC lands

received under the 1983 Agreement are subject to §22(g) constraints (those

specifying that Native lands in refuges remain subject to the laws and regulations

governing the refuge of which they are a part) as a matter of law, rather than being

a matter of contractual obligation.

Subsequently, the Department of the Interior began negotiations with several

other Native corporations and their oil company partners to develop other exchanges

for subsurface rights in ANWR. These actions raised the issue at the time of whether

such exchanges were valid and whether they would preempt the authority of

Congress to make the decision of whether to lease and develop the oil and gas

H.Rept. 98-843 at 1 (1984).

Ibid., p. 7.

Rep. Seiberling describes the bill as “without controversy” and does not discuss the 1983

Agreement related to ANWR. 130 Cong. Rec. 16841 (June 18, 1984). Rep. Young states

that the bill would ratify agreements, but only discusses the gas field agreements. Id., at

16843. Similarly, discussion was brief on the Senate side and focused on the Barrow

provisions. Sen. Stevens stated that the bill had been extensively reviewed by the Congress,

the House and Senate hearings, and stated that the bill confirms that the lands received by

ASRC under the August 9, 1983 Agreement are to be treated as received under ANCSA.

130 Cong. Rec. 19738 (June 28, 1984).

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resources of the coastal plain of ANWR57 by presenting Congress with exchanges

that might result in pressure to open the Refuge. As a result, Congress addressed the

issue in 1988.

1988 ANILCA Amendment. In 1988, Congress legislated to prevent any

more exchanges by amending the general exchange authority in ANILCA that had

been used as authority to complete the 1983 Agreement:

Nothing in this Act or any other provision of law shall be construed as

authorizing the Secretary to convey, by exchange or otherwise, lands or interest

in lands within the coastal plain of the Arctic National Wildlife Refuge (other

than land validly selected prior to July 28, 1987), without prior approval by Act

of Congress.58

The House Report addressed the validity of such exchanges, linked exchanges

to the decision of whether to open the Refuge to oil and gas development, and

reiterated the control of Congress over whether the coastal plain would be opened for

oil and gas development. The Report states:

The committee believes that, under current law, the Secretary of the Interior

does not have authority to administratively exchange lands within the coastal

plain of the Arctic National Wildlife Refuge, as defined in Section 1002(b) of

ANILCA. Congress clearly reserved to itself the sole prerogative to make the

decision as to whether ANWR would be opened to oil and gas development and,

if so, under what terms and conditions. Section 1003 of ANILCA states:

Production of oil and gas from the Arctic National Wildlife Refuge is

prohibited and no leasing or other development leading to production of oil and

gas from the range [sic] shall be undertaken until authorized by an Act of

Congress.

It is the Committee’s view that the 96th Congress did not intend the Secretary’s

general exchange authority under Section 1302(h) to apply to the coastal plain

of ANWR.59

The Report goes on to discuss the fact that the Department continued to assert

that it had complete and unilateral authority to trade away oil and gas rights, to allow

exploratory drilling, and to waive the rights to bonus bids, rents and royalties without

Congressional approval. Furthermore, it noted that the Department had engaged in

“mega-trade” negotiations with six Alaska Native groups and their oil company

partners for exchanges similar to the ASRC exchange of 1983, and had conducted a

“conditional auction” for oil and gas rights to 73 tracts in the coastal plain of ANWR.

Then the Report discussed the intent of the new provision:

See, e.g. the GAO Report: GAO/RCED-88-179 (September, 1988), Consideration of

Proposed Alaska Land Exchanges Should Be Discontinued.”

P.L. 100-395, 102 Stat. 979, 981, amending § 1302(h) of ANILCA; 16 U.S.C.

§ 3192(h)(2).

H.Rept. 100-262, Part 1 at 7-8 (1987).

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Title II and section 201 are designed to preserve the status quo and to permit,

as ANILCA intended, Congress to decide the future status of the coastal plain on

the merits. Section 201 makes it clear that the “mega-trades” or any other

exchanges, as well as any other prospective conveyances involving lands or

interests in lands within the coastal plain may only be implemented after

Congressional review and after securing legislative approval by an Act of

Congress. However, this section is not intended to effect [sic] lands validly

selected prior to July 28, 1987.60

This reiteration of Congress’ authority to make the decision regarding oil and

gas leasing in the coastal plain of ANWR is repeated on p. 12 of the Report: “The

Committee would note that the decision of whether to open the Arctic National

Wildlife Refuge for oil and gas development is a decision which Congress has

reserved for itself.”

The Senate Report repeats the language in the House report regarding the fact

that Congress reserved to itself the right to decide if and when oil and gas leasing

would be permitted in ANWR and that the new legislation “would insure that such

a congressional prerogative is preserved.”61

Subsequent legislative history (as in a later committee report commenting on a

previous enactment) expressing an interpretation of a previous statute is not given

much weight because, as the Supreme Court has put it, “[t]he views of a subsequent

Congress form a hazardous basis for inferring the intent of an earlier one.”62

However, the views of a later Congress incorporated into a later statute must be

interpreted and applied, and are given great weight in statutory construction.63 Still

other statutes may be premised on a particular interpretation of an earlier statute. If

so, the interpretation may be given effect, especially if a contrary interpretation would

render the amendments pointless or ineffectual.64

The 1988 amendment to ANILCA seems somewhere between the latter two

interpretive choices. The 1988 direction that no more lands could be conveyed in the

coastal plain without congressional approval is stated as being premised on the fact

that Congress reserved to itself, and reiterates the ANILCA authority, to make the

Ibid., pp. 8-9. The Report states that the committee is aware that KIC, some individual

Natives, and ASRC “through a land exchange agreement with the Department” had selected

lands in the Refuge before July 28, 1987, and states that the Secretary may adjudicate the

validity of those land selections and convey lands to those parties “to the extent such

conveyances are otherwise lawful and proper.” Id., at 13.

S.Rept. 100-302 at 3 (1988).

Mackey v. Lanier Collection Agency & Serv., 486 U.S. 825, 840 (1988) (quoting United

States v. Price, 361 U.S. 304, 313 (1960).

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-381 (1969).

Mount Sinai Hospital v. Weinberger, 517 F. 2d 329, 343 (5th Cir. 1975), quoted with

approval in Bell v. New Jersey, 461 U.S. 773, 785 n.12 (1983). See also Merrill Lynch,

Pierce, Fenner & Smith v. Curran, 456 U.S. 343, 382-387 (1982), relying on congressional

intent to preserve an implied private right of action as the reason for a “savings clause” on

court jurisdiction.

CRS-21

decision regarding oil and gas development of that area. Exchanges like the 1983

one with ASRC were evidently regarded as predisposing the decision process, and

hence Congress stepped in to legislate that no further conveyances were to take place

unless and until Congress so authorized — in order to preserve its view of §1003 of

ANILCA. This later enactment and the reasons for it arguably are entitled to weight

in interpreting whether any modification of the ANILCA reservation of authority for

Congress to decide the question of oil and gas development of the coastal plain has

occurred with respect to ASRC.

Final Selections. On March 17, 1993, lands were withdrawn by Public Land

Order 6959 to allow KIC to make its final selections to complete its four townships

in the Refuge.65 Pursuant to § 22(h)(2) of ANCSA and § 1410 of ANILCA, the

Order made more lands available than was KIC’s entitlement, thereby providing

some flexibility as to choices. This larger quantity of lands desired by KIC had been

identified initially in an agreement effective January 22, 1993, before the PLO was

issued. Those lands were withdrawn and, under the terms of the January agreement,

KIC was then to have filed a selection application and simultaneously submitted a

prioritization of land choices from which conveyances could be completed up to the

amount of the entitlement.

Allotments. In addition to the KIC and ASRC Native lands, there are also

individual Native “allotments” within the coastal plain and elsewhere in the Refuge.

Approval and conveyance of many allotments has been completed; other lands have

been applied for, but may not be approved. BLM has compiled the locations,

acreage, and status of allotments and applications. It appears, based on a preliminary

mapping, that allotments and applications for allotments are clustered primarily along

the coast and near Sadlerochit Spring, both of which are considered vital wildlife

areas. BLM reports that allotments range in size up to 160 acres each and that

approximately 9,797 acres have been conveyed, with an additional 1,719.66 acres

approved but still pending.

Allotments conveyed under the provisions of ANCSA are expressly for the

surface estate only. However, if a claimant qualified for and opted for a conveyance

under previous statutes, the status of the mineral estate of a particular allotment

would have to be checked. Nonmineral lands (in the sense of “hardrock” minerals

such as gold, silver, etc.) were not to be available for selection, and typically the

United States reserved any oil and gas.66

P.L. 108-337, the Alaska Native Allotment Subdivision Act,67 authorizes the

subdivision and dedication of “restricted lands” (allotments) with the same effect as

58 Fed. Reg. 14323 (March 17, 1993).

43 U.S.C. § 1617(a). BLM advises that all of the allotments are pursuant to the act of

May 17, 1906, ch. 2469, 34 Stat. 197, amended August 2, 1956, ch. 891, 70 Stat. 954, in

which case they may be subject to restrictions on alienation. Oil and gas on all of these

allotments is reserved to the United States. Other allotments are listed as approved pursuant

to ANILCA; however, the status of the title of particular allotments and applications may

not be clear at this time.

118 Stat. 1357.

CRS-22

if the restricted land were held in unrestricted fee simple title. This could facilitate

the development of allotments once the Refuge is opened and more uses for the

allotments become possible.

(B). Current Bill Provisions and Issues.

(1). Conveyances to KIC. Section 2211(1) of H.R. 6 would authorize the

conveyance of final land selections to KIC. It will be recalled that congressional

authorization to complete the conveyances is required by the 1988 amendment to

ANILCA. More than sufficient lands for identification of selections were made

available in PLO 6959, as identified by KIC in the agreement effective January 22,

1993. Conveyance of the selected lands is to be in accordance with the January 22,

1993 Agreement, and §2211(2) directs that ASRC receive the remaining subsurface

estate to which it is entitled under the August 9, 1983 agreement.

(2). Environmental Constraints on Native Lands. As discussed above,

H.R. 6 addresses oil development activities in the coastal plain/1002 area, and would

provide some environmental controls. It is unclear to what extent the Native lands

will be subject to the same or similar controls — whether whatever constraints are

placed on the federal Refuge lands would also pertain to the Native lands within the

Refuge, or, if not, what other constraints on environmental effects and development

facilities might apply to the Native lands. These issues are vitally important to

understanding the possible overall effects of oil development on the Refuge.

In considering this question, the various Native property interests must be

considered separately: 1) the interests of KIC in the surface estate of lands, within the

coastal plain and the Refuge as a whole; 2) the interests of ASRC in the subsurface

(and related use of the surface), within the coastal plain and the Refuge; and 3)

individual allotments in the coastal plain and Refuge.

As discussed above, one township of KIC lands is in the defined Coastal Plain;

three townships are outside the defined Coastal Plain; all are on the geographical

coastal plain and within the boundaries of the Refuge as a whole.

Currently, ASRC has rights to the subsurface beneath the KIC lands and beneath

allotments, both within and outside the coastal plain. It is important to note that the

1983 Agreement and its appendices address oil exploration and development on the

ASRC lands and provide that its terms will govern unless superseded by statutory or

regulatory provisions. Although ASRC holds the subsurface estate, the owner of a

mineral estate typically has the right to use as much of the surface as may be

reasonably necessary to reach and remove the minerals.68 The term “ASRC lands”

defined in the 1983 Agreement reflects this fact by defining their subsurface estate,

as including “as the context requires” the surface of such lands.69

Appendix 2, Part B, governs exploration activities and contains many

environmental provisions. Paragraph B.9 of the Agreement states that development

54 AM. JUR. 2d Mines and Minerals, § 210.

1983 Agreement, Appendix II, A-2(c).

CRS-23

and production activities undertaken “on ASRC lands” will be in accordance with

statutory and regulatory requirements. Specifically development on ASRC lands

(surface and subsurface):

shall be in accordance with the substantive statutory and regulatory requirements

governing oil and gas exploration, including exploratory drilling, and

development and production that are designed to protect the wildlife, its habitat,

and the environment of the coastal plain, or the ASRC Lands, or both. (Emphasis

added.)

Other provisions of the 1983 Agreement also pertain to environmental effects.

Appendix 1 provides that the grant of lands to ASRC is subject to:

1. the requirements of the second sentence of § 22(g) of ANCSA, (which

requires compliance with the regulations of the Refuge).

6. the covenant that ASRC will use the lands “in conformance with the ‘Land

Use Stipulations” attached as Appendix 2.

7. the covenant that ASRC “shall not use those lands, or the surface of those

lands, in any manner that significantly adversely affects the fish and wildlife,

their habitats, or the environment of those lands or Arctic National Wildlife

Refuge lands ....”

Therefore, it appears that as a general matter, the environmental constraints of

any bills applicable to the coastal plain arguably would apply to development of all

ASRC lands, both within the coastal plain and outside it.70 The same standard — the

avoidance of significant adverse effects — is used in the 1983 Agreement and in both

bills.

However, absent express new statutory language that addresses the relationship

of the new legislation to the 1983 Agreement and to particular management and land

use considerations, issues may arise. H.R. 6 leaves much to be fleshed out by the

Secretary of the Interior in new leasing regulations for the Refuge. The 1983

Agreement contemplates that subsequent legislation and regulations may supersede

its provisions on exploration, and will apply to development and production. To

whatever extent the congressional acts and administrative regulations do not clearly

supersede the 1983 Agreement, it appears that the terms of the agreement will govern

oil exploration on the ASRC lands. Paragraph B.9 of Appendix 2 (pp. 28-29) states

that certain provisions in Paragraph B.3(c) - (m) — that set out an approval process

for a “plan of operations” for oil exploration — will remain in effect.71 This

See Paragraph 4, p. 10 of the Agreement that states that Appendix 1 applies to the lands

to be conveyed to ASRC, thereby incorporating by reference Paragraph 1 of Appendix 1 that

applies 22(g) to ASRC lands and Paragraph 6 of Appendix 1, which requires compliance

with the Land Use Stipulations of Appendix 2.

The agreement refers to “such” plans. This could refer either to exploration plans in

Paragraph B.3, or it could refer to all plans — exploration or development — that are the

subject of Paragraph B.9. A reading of B.9 as a whole would seem to indicate that the latter

(continued...)

CRS-24

provision may mean that Congress would have to expressly address and change this

plan approval process, or the terms of the Agreement may still govern. The

referenced Paragraph B.3(c)-(m) provisions provide a special process for approval

of a plan of operations for ASRC exploration under which if the Regional Director

of Fish and Wildlife Service and ASRC disagree as to whether a part of a proposed

plan would significantly adversely affect the wildlife, habitat, or environment of the

ASRC lands or Refuge lands or would otherwise be inconsistent with any provision

of the Agreement, ultimately (after some prescribed exchanges of written points of

view and negotiations) the United States must obtain a court order restraining

implementation of the plan of operations, or else ASRC will have the right to

implement the plan of operations as originally proposed or as subsequently modified.

In other words, the opinion of ASRC as to harm will prevail unless the United States

obtains the agreement of a court with its views in every instance.

Should ASRC assert that this provision remains in effect even if the Director of

BLM, rather than the Regional Director of FWS is the responsible leasing official,

this language appears to impose a difficult burden on the United States to assert and

control adverse effects of oil and gas exploration on Native lands. Also, if other

terms are not superseded, some Agreement provisions that were intended as “state

of the art” environmental constraints in 1983 but which are less desirable standards

today, may pertain. For example, provisions in Appendix 2 of the Agreement speak

to “reserve pits” and ponds as means for the disposal of wastes on the surface of the

Refuge, while current practice is to reinject wastes underground, rather than using

reserve pits. Other provisions in the Agreement also address environmental

considerations in ways that might not be considered acceptable today. The

Agreement specifically addresses, for example, the use of explosives, aircraft, fires,

disposal of gray water on the surface of the Refuge, removal of water from streams,

incineration, fuel pits, extraction of sand and gravel, and the type and location of

support facilities. Depending on the specificity of the regulations on exploration that

the Secretary is to develop, some of these provisions of the Agreement that are not

expressly superseded may ultimately function to permit pollution and the siting and

use of facilities that might not be permitted under current practices.

H.R. 6 does not clarify how it relates to the 1983 Agreement with ASRC; it does

not expressly provide that any of its environmental constraints supersede the

provisions of that Agreement, and therefore, arguably, the provisions of the

Agreement on oil and gas exploration apply, unless changed in the regulations, and

so does the general provision that activities on ASRC lands will be covered by the

statutory and regulatory constraints applicable to federal oil and gas activities.

Specific issues may arise, however. For example, the applicability of the 2,000

acre surface footprint limitation on the Coastal Plain is not clear. ASRC agreed in

the 1983 Agreement to be bound by substantive statutory and regulatory requirements

“designed to protect the wildlife, its habitat, and the environment of the coastal plain,

or the ASRC Lands, or both.” The 1983 Agreement defines “coastal plain”

(...continued)

interpretation is more likely the correct one. Given the importance of this issue, Congress

may wish to clarify this point.

CRS-25

essentially in the same way as does H.R. 6. Therefore, at least one township of

ASRC lands is within the defined Coastal Plain and arguably subject to the 2,000

acre limitation on any surface use. If so, how a decision might be made as to how to

allocate the 2,000 acres among federal and ASRC lands in the Coastal Plain is

unclear.

An argument can also be made that development on all of ASRC lands is

subject to the 2,000 acre limit in that Paragraph B.9 states that development “on

ASRC Lands” shall be in accordance with ... requirements to protect the wildlife and

coastal plain.”

The 2,000 acre limit does not appear to apply to surface development on Native

lands outside the defined Coastal Plain that is not associated with development of

ASRC lands — e.g. surface use and development on KIC lands that serves federal

oil and gas development in the Coastal Plain through support facilities, ports, dumps,

airstrips, etc.

Some bills in previous Congresses have specifically addressed oil developmentrelated activities on Native lands within the Refuge and expressly set out

development limitations and specifications, together with expedited judicial review

of possible Native claims for breach of contract or “takings” under the 5th

Amendment of the Constitution. See e.g., H.R. 3601 in the 100th Congress and H.R.

1320 in the 102d Congress, which limited port facilities and other development

support activities and directed the promulgation of Refuge-wide regulations within

a specified time.

(3). Section 22(g) Constraints. Both the KIC and ASRC lands are currently

subject to § 22(g) of ANCSA, and hence to the laws and regulations governing

ANWR; the KIC lands by the terms of ANCSA, and ASRC lands by the terms of the

1983 Agreement and, arguably, the 1984 Barrow Gas Field Act. Beginning in 1973,

analysis of how § 22(g) might apply to Native lands in a refuge concluded that,

because the lands were privately-owned, separate regulations were appropriate: one

set of regulations should govern the use of the public lands within a refuge and

separate regulations should govern what could be done by Natives on their lands.

The latter regulations should also reflect the fact that the Native lands had been

conveyed under a statute (ANCSA) to accomplish a settlement “in conformity with

the real economic and social needs of the Natives” and with their maximum

participation.72

This interpretation — that separate regulations are appropriate — was confirmed

by certain aspects of ANILCA, notably language in § 103(c) which states that only

those lands within the boundaries of any conservation system unit which are

public lands (as such term is defined in this Act) shall be deemed to be included

as a portion of such unit. No lands which, before, on, or after the date of

enactment of this Act, are conveyed to the State, to any Native Corporation, or

Opinion to the Director, Bureau of Sport Fisheries and Wildlife from the acting Associate

Solicitor for Conservation and Wildlife, September 11, 1973.

CRS-26

to any private party shall be subject to the regulations applicable solely to public

lands within such units....

“Federal lands” is defined in §102(2) as lands the title to which is in the United

States, and “public lands”is defined in §102(3) as federal lands, except lands selected

by a Native Corporation but not yet conveyed, or lands referred to in section 19(b)

of ANCSA (certain entitlements of Village Corporations). Therefore, it appears that

the Department of the Interior concluded — before the enactment of the Barrow

statute in 1984 — that special regulations applicable to Native lands in refuges are

appropriate to implement 22(g).73

Before the development of separate compatibility regulations for lands subject

to § 22(g), several exchanges, including the ASRC exchange, had contained land-use

stipulations to attempt to clarify what could and could not be done on the Native

lands. Because § 22(g) requires compliance with the laws and regulations pertaining

to the particular refuge of which the Native lands are a part, any law enacted to lease

ANWR could impose some constraints on the Native lands and special regulations

governing those lands might also be developed.

Current 43 C.F.R. § 2650.4-6 states that regulations governing the use and

development of refuge lands conveyed pursuant to § 14 of ANCSA “shall permit

such uses that will not materially impair the values for which the refuge was

established.” This appears to be a standard that would allow a considerable range of

activities.

The new compatibility regulations address §22(g) lands and state that

compatibility determinations for those lands are to be made in compliance with the

requirements stated in the regulations, several of which are relevant to this report.

Notably, the regulations state, for example, that only the effects on refuge lands that

result from a use made on Native lands, not the use on the Native lands itself, will be

considered, and that the Refuge management plan will not include the Native lands:

(1)(I) Refuge managers will work with 22(g) landowners in implementation of

these regulations. The landowners should contact the Refuge Manager in

advance of initiating a use and request a compatibility determination. After a

compatibility determination is requested, refuge managers have no longer than

ninety (90) days to complete the compatibility determination and notify the

landowner of the finding by providing a copy of the compatibility determination

or to inform the landowner of the specific reasons for delay. If a refuge manager

believes that a finding of not compatible is likely, the Refuge Manager will

notify the landowner prior to rendering a decision to encourage dialog on how

the proposed use might be modified to be compatible.

(ii) Refuge managers will allow all uses proposed by 22(g) landowners when the

Refuge Manager determines the use to be compatible with refuge purposes.

(iii) Compatibility determinations will include only evaluations of how the

proposed use would affect the ability of the refuge to meet its mandated

See Memorandum from Attorney, Office of the Regional Solicitor, Alaska Region to the

Regional Director, Alaska Region, Fish and Wildlife Service, February 17, 1983.

CRS-27

purposes. The National Wildlife Refuge System mission will not be considered

in the evaluation. Refuge purposes will include both pre-ANILCA purposes and

those established by ANILCA, so long as they do not conflict. If conflicts arise,

ANILCA purposes will take precedence.

(iv) A determination that a use is not compatible may be appealed by the

landowner to the Regional Director. The appeal must be submitted in writing

within forty-five(45) days of receipt of the determination. The appeals process

provided for in 50 C.F.R. 36.41(i)(3) through (5) will apply.

(v) Compatibility determinations for proposed uses of 22(g) lands will only

evaluate the effects of the use on the adjacent refuge lands, and the ability of that

refuge to achieve its purposes, not on the effects of the proposed use to (sic) the

22(g) lands.

(vi) Compatibility determinations for 22(g) lands that a use is compatible are not

subject to re-evaluation unless the use changes significantly, significant new

information is made available that could affect the compatibility determination,

or if requested by the landowner.

(vii) Refuge comprehensive conservation plans will not include 22(g) lands and

compatibility determinations affecting such lands will not be automatically reevaluated when the plans are routinely updated.

(viii) Refuge special use permits will not be required for compatible uses of

22(g) lands. Special conditions necessary to ensure a proposed use is compatible

may be included in the compatibility determination and must be complied with

for the use to be considered compatible.

(g) Except for uses specifically authorized for a period longer than 10 years

(such as rights-of-ways), we will re-evaluate compatibility determinations for all

existing uses other than wildlife-dependent recreational uses when conditions

under which the use is permitted change significantly, or if there is significant

new information regarding the effects of the use, or at least every 10 years,

whichever is earlier. In addition, a refuge manager always may re-evaluate the

compatability (sic) of a use at any time.

(h) For uses in existence on November 17, 2000 that were specifically

authorized for a period longer than 10 years (such as rights-of-ways), our

compatibility re-evaluation will examine compliance with the terms and

conditions of the authorization, not the authorization itself. We will frequently

monitor and review the activity to ensure that the permittee carries out all permit

terms and conditions. However, the Service will request modifications to the

terms and conditions of these permits from the permittee if the Service

determines that such changes are necessary to ensure that the use remains

compatible. After November 17, 2000 no uses will be permitted or reauthorized, for a period longer than 10 years, unless the terms and conditions for

such long-term permits specifically allow for modifications to the terms and

conditions, if necessary to ensure compatibility. We will make a new

compatibility determination prior to extending or renewing such long-term uses

at the expiration of the authorization. When we prepare a compatibility

determination for re-authorization of an existing right-of-way, we will base our

CRS-28

analysis on the existing conditions with the use in place, not from a pre-use

perspective.74

These regulations, and the 1983 Agreement, could allow a considerable range

of development on the KIC and ASRC lands, unless superseded or elaborated on by

new statutory and regulatory leasing provisions. H.R. 6 provides that oil and gas

leasing in the Refuge is compatible with the purposes of the Refuge and no further

findings or decisions are required to implement this determination. The exact effect

of this statutory finding on the scope of possible regulation under §22(g) is not clear.

(4). Allotments. Allotments, it will be recalled, are lands to which individual

Native Americans have full or partial title. In most, if not all instances, the United

States retained the oil and gas and coal beneath allotments, but the surface is in nonfederal ownership and can be developed. Allotments within the Refuge were not

subject to the requirement of § 22(g) of ANCSA that uses on Native lands chosen

under that act must comply with the regulations of the Refuge, but under the 1983

Agreement, ASRC received the subsurface beneath most allotments in the Refuge

and agreed to be bound by 22(g) in its development of them.75

The uses that an allottee might make of these lands or permit to be made of

these lands could have significant impacts on the Refuge — if oil development were

allowed, allotments could be used for staging areas, port development, or refuse

storage or direct drilling development. Therefore, the size and location of allotments

is relevant to assessing the possible overall effects of oil development on the coastal

plain and the Refuge. As noted above, some patented allotments are located on the

coast, but outside the defined Coastal Plain, and in the Sadlerochit Spring area. BLM

advises that 9,797 allotment acres have been conveyed in the Refuge and another

1,720 acres have been approved.

Other statutes relating to the management of environmentally sensitive federal

conservation units have provided for regulation of valid existing rights and

inholdings. For example, the Wilderness Act authorizes mineral leasing under “such

reasonable stipulations as may be prescribed by the Secretary of Agriculture for the

protection of the wilderness character of the land consistent with the use of the land

for the purposes for which they are leased ....”76 Congress also subjected existing

mining rights in national parks to “such regulations prescribed by the Secretary of the

Interior as he deems necessary or desirable for the preservation and management of

those areas.”77

As discussed above, P.L. 108-337 authorizes the subdivision and virtual

conveyance of allotments as if they were held in fee simple.

50 C.F.R. § 25.21 at 65 Fed. Reg. 62481-62482.

Appendix I-1.

16 U.S.C. § 1133(d).

16 U.S.C. § 1902.

CRS-29

H.R. 6 does not address allotments within the Refuge at all — e.g., by providing

for regulated use, or for buying them out, etc.

(5). Timing. Section 2203(b)(1) of H.R. 6 would repeal the § 1003 prohibition

against oil and gas development in the Refuge, thereby allowing such development,

but would not place any time limitations on activities on Native lands leading to

development or production, even though leasing regulations for the federal lands are

not to be finalized for 15 months. As discussed above, the bill does not expressly

address the 1983 Agreement and which of its provisions are superseded. Therefore,

it is not clear that ASRC must wait until the federal leasing regulations are completed

before moving forward in accordance with the terms of the 1983 Agreement. It will

be recalled that an exploratory well was already drilled on KIC lands and some oil

companies could be ready to move forward immediately on the Native lands.

Express provisions addressing this issue of timing could ensure a fair start under the

same rules.

III. Access, Rights of Way, and Exports.

Title XI of ANILCA provides for rights of way across federal conservation areas

for transportation and utility systems. Section 2210(a) of H.R. 6 provides that Title

XI of ANILCA “shall not apply to the issuance by the Secretary under section 28 of

the Mineral Leasing Act ... of rights-of-way and easements across the Coastal Plain

for the transportation of oil and gas.” (Emphasis added.) However, access to

develop the oil and gas for transportation is not dealt with expressly. Subsection (b)

of § 2210 requires that terms and conditions on rights of way or easements to

transport oil and gas ensure that such transportation does not result in a significant

adverse effect on the fish and wildlife, subsistence resources, their habitat, and the

environment of the Coastal Plain. Current 30 U.S.C. § 185(h), on rights of way

under the MLA, requires that the Secretary impose stipulations on the right of way

that are “designed to control or prevent (i) damage to the environment (including

damage to fish and wildlife habitat), ....” This standard in current law may be more

protective than that in H.R. 6.

The rights of way language in H.R. 6 addresses only the transportation of oil and

gas under the MLA, which section relates only to pipelines. H.R. 6 does not address

access to the areas or other forms of rights of way that might be needed. Any use of

the surface of the federal lands is a “right of way.” The areas occupied by drilling

pads or other oil development structures, for example, would require a right of way

or easement, yet the bill does not address these situations. As discussed in the first

section of this report, ambiguities remain as to which agency would otherwise be the

managing/permitting authority and with what scope of authority, hence it is not clear

under the H.R. 6 which laws and regulations would pertain to non-pipeline rights of

ways used in connection with leasing activities. Title XI of ANILCA provides a

process for obtaining rights of way for transportation and utility systems in federal

conservation areas in Alaska (which term includes refuges), and § 2210(a) states only

that Title XI of ANILCA does not apply to the issuance of pipeline rights of way.

The Refuge Administration Act provides at 16 U.S.C. § 668dd(d)(1)(B) that the

Secretary (acting through the FWS) may grant easements across or upon refuge lands.

Whether these provisions could come into play may depend on how the management

division between BLM and FWS is interpreted. Arguably too, rights of way could

CRS-30

be addressed in the regulations authorized by § 2203, but it is unclear what statute

would provide that authority.

H.R. 6 does not address access to the Native inholdings in the Refuge, but under

§ 1110(b) of ANILCA, notwithstanding any other law, the Secretary is to grant

access rights to the owner or occupier of inholdings in conservation system units.78

The access rights are to be:

as may be necessary to assure adequate and feasible access for economic and

other purposes to the concerned land .... Such rights shall be subject to

reasonable regulations issued by the Secretary to protect the natural and other

values of such lands.79

As noted, the Refuge Administration Act provides that the Secretary (acting

through the FWS in that instance) may provide permit or grant easements across or

upon areas within the Refuge System, but because of the “notwithstanding” language

in the ANILCA access provision, arguably this statute would not apply to access

easements.80

Subsection (s) of 30 U.S.C. § 185, allows the export of oil transported by

pipeline through the Trans-Alaska Pipeline System (TAPS) unless the President

determines that export is not in the national interest. It has generally been assumed

that oil from ANWR would be piped over to the TAPS for transport south to the port

of Valdez. If so, then the oil normally could be exported. However, § 2206(a)(8)

would require ANWR leases to prohibit export of oil produced under the lease.

IV. Compliance with NEPA.

Some observers question whether the existing final legislative environmental

impact statement (FLEIS), prepared in 1987 to comply with the National

Environmental Policy Act (NEPA), is adequate to support development now, or

whether a Supplement or a new EIS should be prepared. A court in a declaratory

judgment action in 199181 held that the DOI should have prepared a Supplemental

Environmental Impact Statement (SEIS) at that time to encompass new information

Under § 1323 of ANILCA, (16 U.S.C. § 3210), the Secretary of the Interior is to provide

access to nonfederally owned land surrounded by national forests or public lands managed

under the statute that usually governs BLM lands — the Federal Land Policy Management

Act (FLPMA). However, if BLM would be administering leasing in the Refuge, rather than

managing the Refuge lands under FLPMA, this ANILCA access provision appears not to

apply.

16 U.S.C. § 3170(b).

Congress has at times regulated access to inholdings in other conservation areas. For

example, under 16 U.S.C. § 1134(b), access to inholdings in designated wilderness areas is

allowed “by reasonable regulations consistent with the preservation of the area as

wilderness, ... by means which have been or are customarily enjoyed with respect to other

such areas similarly situated.”

NRDC v. Lujan, 768 F. Supp. 870 (D.D.C. 1991).

CRS-31

about the 1002 area in connection with the Department’s recommendation that

Congress legislate to permit development. Therefore, it seems clear that either an

SEIS or a new EIS would have to be prepared before development, unless Congress

changes this requirement.

Section 2203(2) of H.R. 6 states that the Congress finds the 1987 EIS adequate

to satisfy the legal and procedural requirements of [NEPA] with respect to the actions

authorized to be taken by the Secretary of the Interior in developing and

promulgating the regulations for the establishment of the leasing program, thereby

eliminating the need to redo or update the EIS for the leasing regulations. Under §

2203(c)(3) of H.R. 6, the Secretary is directed to prepare an EIS with respect to

actions other than the preparation of the regulations. This is noteworthy because only

the smaller document, an environmental assessment, might normally be sufficient,

depending on the magnitude of the action involved. The rest of that paragraph sets

out limitations on the alternatives that the Secretary must consider as to leasing, as

though this paragraph relates only to the leasing stage, rather than to all actions. The

section goes on to say that the Secretary is to identify only a preferred action for

leasing and a single alternative and analyze only those two choices, and to consider

public comment only on the preferred alternative. Public comments must be

submitted within 20 days of publication of the environmental analysis, and the

Secretary may only consider public comments that specifically address the preferred

action. The analysis on the first lease sale is to be completed within 18 months of

enactment. Compliance with paragraph (c)(3) is stated as satisfying all requirements

for consideration and analysis of environmental effects. However, paragraph (c)(3)

both directs the preparation of an EIS for all actions authorized by the act other than

the development of coastal plain leasing regulations, yet also speaks as though it is

only meant to address proposals for lease sales, so the intended import is not clear.

Section 2207(b)(1) of H.R. 6, requires a site-specific analysis to study the effects

of any drilling or related activities, which analysis arguably must be an EIS under the

§2203(c)(3) requirement.

V. Judicial Review.

H.R. 6 contemplates prompt action to put a leasing program in place and

expedites judicial review. Section 2208 of H.R. 6 requires that judicial review be

sought within 90 days from the date of the action being challenged or the date the

complainant knew or reasonably should have known of the grounds for the

complaint. Section 2208(a)(1) requires filing of any challenge to the leasing title or

to any action of the Secretary under the title in “any appropriate district court,” yet

§2208(a)(2) requires filing of challenges to an action of the Secretary only in the U.S.

Court of Appeals for the District of Columbia. The section also provides that actions

of the Secretary that could have been reviewed under the section on judicial review

may not be reviewed as part of a civil or criminal enforcement proceeding.

In addition, §2208 of H.R. 6 also limits the scope of review by stating that

review of a Secretarial decision to conduct a lease sale, including the environmental

analysis thereof, shall be limited to whether the Secretary complied with the terms

of the act and shall be based upon the administrative record of that decision.

Furthermore, the Secretary’s identification of a preferred course of leasing action and

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the Secretary’s analysis of environmental effects is “presumed to be correct unless

shown otherwise by clear and convincing evidence to the contrary.” The requirement

of clear and convincing evidence in this context differs from the usual standards for

proof and may be confusing,82 but appears to be intended to make overturning a

decision difficult.

VI. Disposition of Leasing Revenues.

Another issue that has arisen during debates over leasing in the ANWR is that

of disposition of possible revenues — whether Congress may validly provide for a

disposition of revenues other than the 90/10 percent split mentioned in the Alaska

Statehood Act.

Under § 35 of the Mineral Leasing Act (MLA),83 an act that applies to the

leasing of oil and gas and certain other minerals from federal public lands, certain

western states receive directly 50% of revenues. An additional 40% goes to those

states indirectly through the construction and maintenance of irrigation projects under

the Reclamation Act of 1902. These percentages previously were 37 ½% and 52 ½%

respectively. Because the territory of Alaska did not benefit from the Reclamation

Act, it initially received only a 37 ½% share of federal leasing revenues. Before

enactment of the Alaska Statehood Act, Congress amended the MLA to provide that

the territory of Alaska would receive an additional 52 ½% share, thereby putting

Alaska on the same footing as the other states, receiving a total of 90% of revenues

from leasing under the MLA.84 Section 28(b) of the Alaska Statehood Act again

amended the MLA to change the references from the territory of Alaska to State of

Alaska.85

Section 317 of the Federal Land Policy Management Act of 1976 again

amended the revenues section of MLA to direct payment of 90% to Alaska, rather

than the separate percentages previously stated.86 The committee report

accompanying the 1976 change states, under a heading regarding changes to

distribution of revenues from MLA operations, that the action was intended to clarify

that Alaska was to continue to receive 90% of the mineral revenues taken in from

lands in Alaska.87

Alaska has asserted that the 90% total referenced in the Statehood Act cannot

be changed and must always be paid to the state because the Statehood Act is a

See Charles H. Koch, ADMINISTRATIVE LAW AND PRACTICE, § 10.8 (2d ed. 1997).

Act of February 25, 1920, ch. 85, 41 Stat. 450, 30 U.S.C. §191.

P.L. 85-88, 71 Stat. 282 (1957). 37 ½ % was to be spent for the construction and

maintenance of public roads or for the support of public schools or other public educational

institutions as the legislature of the territory may direct. The 52 ½ % was to be paid to the

territory to be disposed of as the legislature directed.

P.L. 85-508, 71 Stat. 339, 351.

P.L. 94-579, 90 Stat. 2743, 2770-2771.

H.Rept. 94-1724 at 62 (1976).

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compact between the prospective state and the federal government. Others assert that

the Statehood Act provision was a technical one, meant to recognize that Alaska

should receive a share comparable to that of other states sharing revenues under the

MLA, but does not preclude the Congress from changing the MLA or at times making

special provision for leasing certain areas under a different regimen.

Alaska sued in the U.S. Court of Federal Claims, asserting that because the

United States had an obligation under the Statehood Act both to maximize mineral

leasing in Alaska and to always pay a 90 % share of gross receipts to Alaska, the

United States had either breached the contract established by the Statehood Act, or

“taken” property of Alaska by withdrawing some lands in Alaska from leasing

(notably ANWR), and by deducting administrative costs prior to the disbursement

of the 90% revenues to the State. The court found that the Statehood Act and the

previous statute providing the territory of Alaska with the same shares as the other

states “simply plugged [Alaska] into the MLA, along with the other States.”88

Therefore, Congress could amend the MLA, e.g., to provide a different way of

calculating receipts, and the changes would lawfully pertain to Alaska. Furthermore,

the court concluded that the United States did not promise in the Statehood Act to

make federal mineral lands productive of royalty revenues for the State, and that the

United States therefore retained discretion over leasing decisions.89 Because of these

findings, the court also granted the government’s motion for summary judgment on

the takings claim. Although this case was in the context of the power of the United

States to pay administrative costs before dividing MLA revenues with Alaska,

arguably the same analysis of the provision in question would apply to a direct

challenge to the authority of Congress to change the revenue shares under a particular

statutory leasing regime as opposed to paying 90% as stated in the Statehood Act.

If the Statehood Act simply means that Alaska will be treated like other states

under the MLA, the question may be asked whether Congress may legislate specially

as to ANWR and prescribe different revenue-sharing provisions in that particular

leasing context. Congress has directed a different split in the past with respect to

leasing under particular statutes, e.g., the National Petroleum Reserves, in which

situation all of the revenues go into the federal Treasury,90 and the National

Petroleum Reserve in Alaska, in which instance the revenue sharing is 50/50.91

Therefore, arguably Congress has flexibility regarding revenue sharing in special

legislation regarding oil and gas leasing in the Refuge. Absent new provisions,

revenues might either be divided as currently provided under the MLA — if leasing

in ANWR is under that statute — or go to the U.S. Treasury as miscellaneous

receipts under 31 U.S.C. § 3302, or be divided in some other way Congress specifies.

Issues may remain, however, because of the wording of the current bills.

Section 2203(a) of H.R. 6 states that the leasing program is to be under the

MLA, yet § 2209 states that “[n]otwithstanding any other provision of law” 50% of

Alaska v. United States, 35 Fed. Cl. 685, 701 (1996).

Ibid., p. 706.

10 U.S.C. § 7433.

P.L. 96-514, 94 Stat. 2964, 42 U.S.C. § 6508.

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revenues are to be paid to Alaska. Given that leasing is to be under the MLA,

whether the revenue splitting language validly overrides the provisions in the Alaska

Statehood Act is not clear. If not, and the language is stricken, a court would then

be faced with severability questions, and the validity of the rest of the bill could be

at issue. H.R. 6 has no severability section, so a court might strike the revenue

splitting language, in which case the court would have to decide whether the usual

MLA 90/10 split should again pertain, or the court could strike the revenue language

and also decide whether Congress would have enacted the legislation without the

new revenue provisions. If a court concludes that Congress would not have done so,

the entire title might fall.

Section 2212 of H.R. 6 establishes a Local Government Impact Aid and

Community Service Assistance Fund for the Secretary to provide assistance to

eligible entities. The Fund is capped at $11 million, but under § 2212(e), $5 million

is authorized to be appropriated to the Secretary for each fiscal year

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