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Speaking for the Federation, I direct myself primarily to this question regarding the protection of those who live off the land. It seems to me that this requirement is not a major issue that would delay the bill. To the people who live off the game animals, it is a serious provision.

Mr. WEINBERG. If I may supplement that, the inclusion of a stipulation of the kind that would be provided for by section 6(h) need not, and should not, delay the consideration of the permit in the legislation.

As a matter of fact, such a stipulation has long been drafted, and has long been in the hands of the Department.

At one point, the Department, by letter from the Secretary dated May 25, 1972, advised the Alaska Federation of Natives it recognized that because of the situation in Alaska it had a responsibility in connection with the issuance of the pipeline permit to protect them against damages, beyond whatever might be the local law.

Subsequent to that, the Secretary apparently changed his mind and advised that he wouldn't include such a stipulation.

At one point in the discussion with the Department, the Department indicated that they thought there might be a lack of legal authority to include such a permit provision.

We don't think that is so. We submitted a brief to the Department, but in any event, section 6(h) would remove any legal doubt, and what we have suggested here is that in our support of section 6(h), we think that it would be appropriate because of this situation in Alaska for the Congress to indicate to the Secretary that it believes that he should exercise the authority that we think he has to include such a stipulation in the permit.

I would like, if I may, to submit for the record the stipulation to which I refer.



JULY 17, 1972. A. Revise paragraph 1.7.1 by (1) changing the period at the end of line 6, paragraph 1.7.1, page 19, to a comma and inserting the phrase "without regard to ownership.” and by inserting after the word "shall", line 2, paragraph 1.7.1, page 20, the phrase “, without regard to ownership," and (2) by inserting the following preceding the word “Permittee" in line 4, page 20:

In addition to the obligation to abate and to reconstruct, repair and rehabilitate as provided in the two preceding sentences of this Stipulation 1.7.1, and

except as otherwise provided by Stipulation 1.7.4, B. Insert a new Stipulation 1.7.4, at page 21, as follows: Permittee shall be liable for any damage suffered by, or for any cost or expense to, any Alaska Native, which damage or cost or expense is in any way connected with or the result of the construction, operation, maintenance or termination of the Pipeline System (or the proposed State highway from the Yukon River to Prudhoe Bay, Alaska, referred to in Stipulation

1 References are to the February 1972 "Stipulations for Proposed Trans-Alaska Pipeline"., including damage or cost or expense resulting from harm or damage to any structure, property, land, water source, stream, fish and wildlife and their habitats, or other resource. The liability provided for under this Stipulation shall exist regardless of any issue of Native ownership or authorization to use or occupy and regardless of fault, negligence or breach of any condition of the permit by Permittee, but nothing herein shall relieve Permittee of any liability arising under State or Federal law. As used herein: (a) the term "damage" includes but is not limited to injury to or loss or impairment of persons or property, real or personal, income, the means of producing income, an economic benefit, subsistence resources, or water supply, and (b) "Alaska Native" means a "Native" as defined in Section 3(b) of the Alaska Native Claims Settlement Act and the term includes, but is not limited to Alaska native villages, whether or not incorporated under the laws of Alaska or of the United States, Regional Corporations as defined in Section 3(g) of said Act and any groups, bands, tribes, clans, communities, associations, or corporations of Alaska Natives. In the event a claimant under Stipulation and Permittee are unable to agree on the compensation due pursuant thereto, the claim shall be determined by arbitration or court proceedings at the option of the claimant. Arbitration shall be conducted at a location convenient to the claimant and shall be goverened by the Alaska Uniform Arbitration Act (Ch. 43, Alaska Code of Civil Procedure; Sec. 1, ch. 232 SLA 1968). All fees and expenses of arbitration and court proceedings, including reasonable attorneys' fees, shall be borne by Permittee unless the body deciding the claim determines the claim was frivolous when brought. Pending determination and payment of claims pursuant to Stipulations and, whether by agreement or otherwise, Permittee shall, for affected Alaska Natives, provide subsistence (including food and water), shelter, medical care and treatment, and other necessities and make emergency repairs and replacements, or advance funds for any or all of the foregoing, as determined or directed by the Authorized Officer. The value of services provided or any funds advanced shall be set off against any claim asserted but shall not otherwise be reimbursable and a claimant shall not be required to reimburse Permittee in the event the claim is not sustained or in the event the claim allowed exceeds the value of services provided or funds advanced. Affected Alaska Natives may appeal an adverse decision of

the Authorized Officer to the Secretary of the Interior, C. Add the following at the end of Stipulation 1.2.4, page 6 :

It is an express condition of the issuance and maintenance in force of this permit that

(a) any authorizations issued by or under the authority of the Secretary of the Interior as a result of such applications, or with respect to any gathering system directly or indirectly connecting with the Pipeline System, shall in respect of the facilities embraced therein, be subject to the provisions of Stipulations 1.7.1-, inclusive, of this permit, whether or not such stipulations are expressly included in any such authorizations or are expressly incorporated therein by reference;

(b) Permittee, in the construction, operation, maintenance or termination of facilities owned or controlled by it in connection with the Pipeline System and located on Federal lands not within the Pipeline right-of-way granted by this permit, shall be subject to the provisions of Stipulations 1.7.1-, inclusive, of this permit; and

(c) Permittee, in the case of any gathering system not owned or controlled by it, shall require the persons owning or controlling any interest therein to agree in writing to the applicability to the construction, operation, maintenance or termination of such gathering systems of stipulations conforming to Stipulation 1.7.1-, inclusive, of this permit, as a condition to receiving oil therefrom directly or indirectly into the

Pipeline System. D. Add the following at the end of stipulation 1.5.1, page 13 : However, any revision or amendment of Stipulation 1.2.4 or of Stipulations 1.7.1-, inclusive, of this permit, shall require the concurrence of the governing bodies of each of those Regional Corporations of Alaska Natives whose areas, determined in accordance with the Alaska Native Claims Settle

ment Act, are traversed by the Pipeline System and of those Alaska native villages (whether or not incorporated under the laws of Alaska or of the United States) whose lands are traversed by the Pipeline System and no such revision or amendment shall be made without public notice and op

portunity for comment on any proposals for revision or amendment. E. Revise Stipulation 1.8.2, page 22, by inserting the following after the word "of" in line 12, of Stipulation 1.8.2, page 22 :

"any sums as directed by the Authorized Officer pursuant to Stipulation, of any arbitration award or final judgment on or settlement of any

claim asserted pursuant to Stipulation, or". F. Add the following new Stipulation after Stipulation 1.3.2, page 7: The Authorized Officer shall arrange for the participation of Alaska Natives knowledgeable concerning conditions in the areas affected in connection with all inspections, formulations or reviews of plans or proposals, surveys, and other activities or inquiries authorized or required to be made by all Federal agencies under this permit and the Authorized Officer and all Federal agencies exercising initiatory, review, approval, or inspection authority hereunder shall consult with such Natives in the discharge of such authority. All travel and other expenses of such Native participation, including subsistence or per diem in lieu thereof, and reasonable compensation for services, shall be borne by the Permittee. The Authorized Officer shall select Natives for this purpose from among nominees made by the governing bodies of the Regional Corporations of Alaska Natives and the Alaska native

villages whose areas are traversed by the Pipeline System. G. Revise Stipulation 1.3.3, page 7, by (1) changing the word “may” to “shall" in line 1, and (2) after the word "protect” in line 4, inserting “the safety, property or subsistence needs of an Alaska Native or to protect”.

H. Revise Stipulation 1.3.4, page 7, by changing the word "may" to "shall" in line 1.

I. Revise Stipulation, page 41, by (1) changing the word "may" to "shall” in line 2, and (2) inserting “if he finds that such activities may materially interefere therewith" after the word "wildlife” in line 6.

Senator HANSEN. I am not a lawyer and I don't presume to have any expertise in that area at all, but I do recall a statement made by Mr. Carter this morning. He said that the legality of some 92 pipeline rights-of-way that had been granted was in question. I would venture the opinion that they probably go back beyond Mr. Nixon's term-well, the only point I am making is that I appreciate your opinion that there is the right, but lawsuits are made up by lawyers who don't share the same opinions, as you know very well.

I would like to ask you: Do you subscribe to the statement made by the Governor this morning?

Mr. HENSLEY. Which statement ?

Senator HANSEN. The one he made to this committee. Did you hear him?

Mr. HENSLEY. Yes; I heard part of it and it is pretty much the case.

Alaska is going to be in serious difficulty if we don't

Senator HANSEN. Do you agree generally with the conclusions that I think are implicit in his statement ?

Mr. HENSLEY. I believe what he indicates is pretty well true.
Senator HANSEN. I have no further questions.
Mr. Bass. Mr. Chairman.
Senator HASKELL. Excuse me.

Mr. Bass. If I could add one further remark in response to Senator Hansen's question about the delay factor, just from a legal perspective in my own personal opinion, there is an equally good argu

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ment that if the provision in section 6(h) is not included in the rightsof-way legislation, that there will be a delay in the granting of the permit because the Department has taken the position that there is an ambiguity in the law.

That sort of ambiguity in the law is what has led to the present impasse because of the right-of-way legislation now on the books.

Frankly, we are here to help speed things through by removing yet another legal ambiguity or obstacle to the granting of the necessary permits.

Obviously, we are seeking a particular type of clarification that is in the interest of the Natives, but we believe it to be humane, equitable, and as fair as any business proposition could be.

If the pipeline is not going to have risk, what we are seeking is not costly; if it does have risk, who should bear the risk?

We believe the fastest way to settle that is through legislation.

Senator HANSEN. A witness this morning made the observation that this unlimited liability went beyond what seems to be commonplace in the law.

Would you agree? Mr. Bass. No, sir. Mr. Patton this morning was talking about section 5(g) only; not about section 6(h). He said he knew of no situation where there was liability without causation or fault. We don't read section 6(h) as saying there will be liability without causation.

We have always, consistently before the Department and here, recognized that the only liability that should properly attach to a pipeline operator is for that damage that is caused as a matter of fact by his activity.

The fact that there is an earthquake and the caribou move to a different area shouldn't be the fault of the pipeline operator.

Senator HANSEN. I insist on having the last word.

You made the point I was trying to make. You illustrate that lawyers can have different opinions.

Mr. Bass. The second point was that there are plenty of situations in the present law. Mr. Weinberg can cite them for you. These are where there is in the Federal law at the present time congressional enactments providing for liability without fault.

One situation deals with carrying of oil by tankers in navigable waters. Another one deals with the oil platforms on the offshore-it is not at all an unprecedented situation. It is happening now in the States in terms of no fault automobile insurance.

Mr. WEINBERG. If I might add one thing in the interest of clarity, Mr. Patton's remarks did not go to section 6(h). He had no word of criticism for section 6(h). He was speaking of another provision in the bill, section 5(g), which imposes an unlimited liability in the third parties. We think there is merit to that and that is a subject to which Congress should address itself. However, the provision with which we are most immediately concerned is section 6(h) which would clear away any legal impediment, if there be any, to the Department to include the stipulation with respect particularly to the Native peoples dependent upon biotic and fish and wildlife resources for subsistence purposes.

I read Mr. Patton's statement and heard it. I heard neither criticism nor discussion of section 6(h).

Senator HASKELL. Senator Metcalf.
Senator METCALF. Thank you, Mr. Chairman.

I am always delighted when the Senator from Wyoming disclaims being a lawyer. I am delighted he is not a lawyer and I don't have to practice against him. He has all the skills and abilities that would make him a formidable antagonist.

I do just want to say—there are 72 violations or something of that sort-I didn't attribute to the Nixon administration. It may go back to the administration of Secretary McKay or something.

Senator HANSEN. I didn't mean to imply you said that at all.

Senator METCALF. I was just astounded this morning that there had been that many permits granted in this issue. I certainly am familiar with not only the provisions of the Claims Act, but I participated in the conference and know how concerned we were about limiting haps the actual ownership.

At the same time, we wanted to be sure that all this area over which the caribou and other food animals roamed would be open for hunting and subsistence of the Natives.

I appreciate the fact that you have brought that subject matter before us again today and reminded us of our concern at that time.

Thank you.

Senator HASKELL. Thank you very much.
We appreciate your being here.

[The prepared statement of Mr. Hensley and material submitted follow:]

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