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This thing is operating at the moment now as a stay. You have a stay on construction of the Prudhoe Bay pipelines, whichever ones may be the right ones to follow.

You can hold it there until you, this committee, and your House counterpart and Congress as a whole, has a chance to look at the merits.

If you pass blanket legislation now, none of us will have a chance again. We are urging you to make an exception to the Prudhoe Bay if you pass this blanket legislation.

Senator HASKELL. I understand your position, but it is my understanding of NEPA that if the Secretary doesn't take all the things he should into consideration in his impact statement, the project doesn't go forward.

If, in fact, the project is extremely detrimental to the environment, injunctions can be obtained.

It seems to me that the merits of this particular case are before the circuit court of appeals. The circuit court chose to decide the case on a technicality and I prefer to have cases decided on merits. There is no use in us arguing. That happens to be my approach and opinion to the situation.

I sympathize with your viewpoint. If I had been arguing the case, I would be making the same presentation as you are. I do really think that there are remedies, assuming the pipeline is detrimental to the environment.

It seems to me the courts have not yet made the environmental determination because they haven't had to. They went off on a technicality. I don't know why.

The litigation and the merits of your case are still in court. It is for that reason that my predilection is to broaden the pipeline rightsof-way legislation rather than hold the thing up on what I consider to be a technicality.

I am sorry to have to disagree with you, but

Mr. SMITH. We are not suggesting at the moment that anything be held up in terms of this legislation in the country as a whole.

The widening of the right-of-way or discretion to widen the rightof-way with regard to general national legislation is another question. We are just saying on the question of the pipeline coming out of Prudhoe, the issue before the court is not the merits. The issue is the adequacy of the environmental impact statement.

When they get back into court, those are two very different things. I would suggest that the staff of the committee give considerable attention to that problem.

If I were counsel for the pipelines people at this point, I would certainly argue that the courts have no jurisdiction to look into the merits.

If I were counsel for the plaintiffs here, I would argue that they did. But there is an area in here beyond which the court is not going to go in deciding the issues for the executive branch. We don't know what that boundary line may be, but there is an area beyond which they will not go. This is your area. This is just one group of men in this country that can get into that question, and that is Congress.

All we are saying is, for goodness sakes, for your own authority and for the sake of the people of the United States who are concerned with this environmental question, let's not preclude the power of Congress itself to go into the merits of the several routes from Prudhoe. This is what we would like to have from you.

We would have to have an opportunity to testify on that and many others would, too. The present drift of things, if you pass the blanket legislation without exemptions, in our judgment-I am talking as a lawyer-it will preclude any possibility of your entering into those questions.

Senator HASKELL. I will ask the general counsel of the staff to research that question and to advise the committee on the issue that you raise.

Mr. SMITH. To terminate, Mr. Chairman, we would like to put in a more lengthy memorandum on the specific business and listing some of the provisions that have been discussed this morning.

I didn't want to take the time to do that this morning.
Senator HASKELL. I appreciate that very much.

[The material referred to follows:]

THE ENVIRONMENTAL COALITION FOR NORTH AMERICA,

Hon. RICHARD M. NIXON,
President of the United States,
Washington, D.C.

Washington, D.C., February 26, 1973.

DEAR MR. PRESIDENT: The decision of the Court of Appeals in the Alaskan pipeline case affords an opportunity for your Administration to recommend a fresh program to the American people.

Your current environmental message reveals again your keen interest in the great national and international environmental issues of our times.

The pipeline case confronts all of us with the problem of supplementing available fuel supplies without grave impairment of the ecosystems of the north slope of Alaska, the coastal regions and waters around Valdez, and the biosystems of the sea and coasts of the Alaskan panhandle, western Canada, and the west coast of the lower states.

There can be little doubt that proposals to amend the Mineral Leasing Act to permit a broader right of way for a line from Prudhoe Bay to Valdez will encounter heavy resistance in Congress. This will probably mean, at the very least, a long delay in resolving these issues, and further expenses for the Alyeska consortium. Even if such amendments are enacted, the issue of the adequacy of the Environmental Impact Statement will still have to be determined.

Under these circumstances it would seem to be desirable for your Administration to make a renewed and much more thorough inquiry in cooperation with Canada into the ecological and economic aspects of several possible alternative routes, including the proposed route eastward from Prudhoe Bay to the MacKenzie River Basin, and thence to Edmonton, branching to Chicago and Seattle, and including the implications of a possible common corridor for oil and gas. In varying degrees these alternatives would have the distinct advantage that they would not cross the high risk earthquake zone of the Alaska range, they would not endanger the coastal zones and waters of Alaska by the inescapable pollution attendant on reloading to tankers, and they would not run the risk of maritime tanker catastrophes wreaking great havoc on the oceans and the sea coasts along the Alaskan panhandle, western Canada, and the west coast of the lower 48 states. The route eastward from Prudhoe Bay to MacKenzie Basin would avoid much of the permafrost, would not cut across the caribou migrations, and would avoid the engineering hazards of the rugged Brooks Range, which entail broad rights of way.

There will quite certainly be very strong opposition from environmentalists to the widening of the right of way for the Valdez route. There might be considerable support, both regional and from the environmental organizations, for

one or another of the alternatives passing in part through Canadian territory, if the inquiry we are urging shows minimal environmental impact. If this is the case, we cannot believe that the difficulties of reaching a firm agreement between Canada and the United States for these routes would be so great as to involve any serious risk for deliveries. And there is much reason to believe that differences in construction and operating costs between Valdez and MacKenzie have been declining rapidly with the passage of time and could at least be equalized; if the environmental damage factors are considered, the balance would seem to swing clearly toward the alternatives.

Your leadership in directing a fundamental change in public policy on this issue at this time would have powerful support from large segments of the environmental movement of the United States. Your good offices might be heavily influential in reaching an agreement with the oil companies to give serious consideration to the alternative routes. Your recommendations to Congress would certainly be highly influential with that body in considering action for a broader right of way based on applications for one or another of the alternatives. The result might well be to expedite a fundamental solution to the whole problem, avoiding further delays and rising costs. The Environmental Coalition for North America would be happy to lend its vigorous support to an ecologically sound solution to the controversy.

With assurances of our high esteem,
Respectfully yours,

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P.S. The Environmental Coalition consists of persons associated with most of the major environmental organizations of the United States including major labor and farm organizations. A descriptive folder is enclosed.

ANTHONY WAYNE SMITH

OCTOBER 30, 1972. President and General Counsel, National Parks and Conservation Association since 1958.

Attorney admitted to practice in the Courts of New York and the District of Columbia.

Chairman, Environmental Coalition for North America; General Counsel, Citizens Permanent Conference on the Potomac River Basin (Citpercon); Executive Committee member, Citizens Committee on Natural Resources; President, South Central Pennsylvania Citizens Association; in all cases serving in a personal, professional capacity on personal time without compensation pro bono publico. Co-Chairman, Everglades Coalition: for personal identification only in this respect, the Everglades Coalition protested successfully in April, 1969 against a proposed giant jetport in Big Cypress Swamp in the Florida Everglades country.

Member of and executive in conservation organizations and movements in watershed management, river basin planning, forestry, soil conservation, and wildlife management for over 20 years.

Professional student of government operations, specifically with reference to natural resources management and regional planning; specialist in the coordination of disciplines involved in such management and planning. Graduate of University of Pittsburgh and Yale School of Law; Board of Editors, Yale Law Journal.

Secretary to Governor Gifford Pinchot of Pennsylvania 1932-33.

Practiced law in New York with Donovan, Leisure, Newton & Irvine, Two Wall Street, after graduation from Law School.

Assistant General Counsel, Congress of Industrial Organizations, 1937-56; Assistant Director of CIO State and Local Central Organizations 1941-56; Executive Secretary of CIO Committee on Regional Development and Conservation 1945-56; Committee on Political Education, AFL-CIO 1956-58.

Commercial dairyman, Franklin County, Pennsylvania since 1954. Member Farm Bureau, Grange, Milk Producers Federation, Soil Conservation District, and other farm organizations.

Mr. SMITH. Finally, you people, of course, are the judge of the order of witnesses here. If you feel that I might possibly have further time which I could yield, I would like to point out to you that you have present people from the plaintiffs in the pipeline case, and you might want to give them some priority here.

I would be glad to yield any further time you may think I have to Mr. Stewart Brandborg, who is one of the plaintiffs in the case. Senator HASKELL. I was going to go out of order here. I was going to ask Mr. Hensley to appear next and Mr. Brandborg to follow him. Thank you very much.

Senator HASKELL. Mr. William Hensley, president of the Alaska Federation of Natives. Introduce the gentlemen with you and proceed in your own way.

I would prefer if you could just talk rather than read your state

ment.

STATEMENT OF WILLIAM HENSLEY, PRESIDENT, ALASKA FEDERATION OF NATIVES, ACCOMPANIED BY KENNETH C. BASS AND EDWARD WEINBERG, COUNSEL

Mr. HENSLEY. Thank you, Mr. Chairman.

I would like to introduce Mr. Ed Weinberg, one of the legal counsel, and on my left is Mr. Ken Bass, also one of the legal counsel we work with.

Senator HASKELL. We are glad to have you with us.

Mr. HENSLEY. I do have a prepared statement. I prefer not to read it. However, I will speak more or less off the cuff.

Senator HASKELL. Fine. Your statement will be included as part of the record.

Mr. HENSLEY. I am William Hensley, president of the Alaska Federation of Natives, Inc.

I am also a member of the State senate. I do represent the arctic snow barrier; also the entire area virtually north of the Yukon down to the delta.

I come primarily to speak to one particular issue that has concerned the Native people in Alaska, particularly those living along the route of the pipeline and also in the neighboring areas.

I think you may be aware that there was a passage of the Settlement Act in the last Congress which authorized the Native people to select certain areas of land; also providing some payments to the Native people for the lands that we were giving up to the United States.

We understand that this hearing is primarily devoted to the general question of rights-of-way across the Federal lands and not directed at the trans-Alaska pipeline as such. However, we will have to refer to that inasmuch as we have sought from the Secretary of the Interior for sometime now for over a year to try to obtain a stipulation in the pipeline permit that would provide for the protection of the people who live on the fish and game along the route of the pipeline.

93-145 O 73 15

Within the Claims Act itself, the act does specify that half a billion dollars of payment that is to go to the Native people is to come from resource development. That is essentially the 2-percent royalty on oil and gas and mineral production in the State.

Essentially we will not be paid very much at all for many, many years unless there is a large production of oil and gas in the State. The primary concern we have at this point with regard to the legislation before you is section 6 (h) of S. 1081. This would provide for an indemnification to people who live on fish and game and other biotic

resources.

The environmental protection impact statement with regard to the pipeline indicated the amount of dependence that the Native people have on fish and game.

I would like to read this one section, if I may.

A majority of the Alaska Native population still utilizes the renewable resources of the land and water to satisfy important physiological needs. Indeed, much of village Alaska is dependent upon these resources for its very existence, and the prospects are that it will be required to remain so for many years to come. Even where use of the marketplace to satisfy primary needs is dominant there is substantial reliance on the harvesting of renewable natural resources as the Native point of entry into the cash economy. However, the importance of these resources to the Native peoples goes much beyond their use in satisfying physiological or cash income needs. The roots of traditional Native cultures can be found in the patterns of resource harvesting activities, and the values associated therewith continue to be important in satisfying significant emotional and social needs.

The construction and operation of the trans-Alaska pipeline could entail significant negative impact on the resource utilization patterns of the Alaska Natives. The extent of this impact is largely a matter of speculation, but it is apparent that, barring a major disaster, it is those Natives in the area of the Yukon River northwest of Fairbanks, and in the Copper River Valley area, who would be most subject to the disruptive forces.

The potential pipeline-related causes of interference with the subsistence resource utilized by the Natives consist of disruption to the habitat of fish and game as the result of construction or operational activities, and increased competition from the non-Native population for the limited available resources.

Mr. Chairman, we have sought, as I mentioned earlier, for sometime to achieve a provision in the permit to be issued by the Secretary of the Interior that would protect us.

We did get some encouragement from the Secretary in a letter to us that indicated that since Alaska was such a unique situation where there were substantial number of Native people still basically living off the land and would continue to do so for sometime, that they felt they would have to provide for our people.

Our counsel had provided a brief on this subject indicating that the Secretary did have the authority to provide this and nevertheless the Secretary refused to include a stipulation such as that which is provided by section 6 (h).

We have never understood fully the reasons why the Secretary refused this provision and this is why we come essentially supporting your provision in section 6(h). However, we would like to see the language tightened up somewhat in view of the Secretary's failure to include a stipulation of his own.

We feel the Native people feel that those individuals, corporations, or groups that seek a right-of-way across public lands should

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