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JAMES W. MOORMAN, CHARLES R. HALPERN, VICTOR H. KRAMER, WASHINGTON,

D.C., FOR PLAINTIFFS

HERBERT PITTLE, DEPARTMENT OF JUSTICE, WASHINGTON, D.C., FOR DEFENDANT

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HART, District Judge.

I. FINDINGS OF FACT

1. Amerada Hess Corporation ; Atlantic Pipe Line Company, a subsidiary of Atlantic Richfield Company; B. P. Pipe Line Company, a subsidiary of B. P. Alaska, Inc.; Home Pipe Line Company, a subsidiary of Home Oil Company of Canada; Humble Pipe Line Company, a subsidiary of Humble Oil and Refining Co.; Mobil Pipe Line Company, a subsidiary of Mobil Oil Co.; Phillips Petroleum Co.; and Union Oil Company of California; (also collectively known as the Trans Alaska Pipe Line System (TAPS) and referred to thereinafter as “the Companies") have applied to Defendant for certain permits involving public lands of the United States under the jurisdiction of Defendant. 2. The Companies have applied for the following permits :

a. An oil pipeline right-of-way 54 feet in width extending from Valdez on the Pacific South Coast of Alaska to Prudhoe Bay on the Arctic North Coast, a distance of approximately 800 miles ;

b. A special land-use permit for an additional access and construction space extending 11 feet on one side and 35 feet on the opposite side of said oil pipe line right-of-way;

c. A special land-use permit for an area 200 feet in width extending from the Yukon River to Prudhoe Bay for a construction surface and haul road. 3. For the purpose of constructing the pipe line and the haul road, in excess of 12 million cubic yards of gravel will be needed from the public lands administered by Defendant from various sites near the route.

4. Defendant is ready to issue a permit for the construction surface and haul road referred to in paragraph 2(c) hereof and to authorize the sale of gravel from the public lands for the construction thereof.

5. Plaintiffs are three conservation organizations. Plaintiff, The Wilderness Society is a nonprofit corporation incorporated under the laws of the District of Columbia, was organized in 1935 and claims a membership of approximately 60,000 persons. Plaintiff, Friends of the Earth is a nonprofit corporation organized under the laws of the State of New York, Plaintiff, Environmental Defense Fund, Inc is a nonprofit corporation organized under the laws of the State of New York.

6. Plaintiffs have submitted affidavits to the Court in support of their motion for a preliminary injunction, and Defendant has submitted affidavits in opposition thereto.

7. Attorneys for Plaintiffs and Defendant presented argument on Plaintiffs' motion for preliminary injunction on April 13, 1970.

8. Defendant has at all times treated the application of the Companies for the construction surface and haul road as separate and distinct from the other applications. Defendant has not yet met all of the procedural requirements of the National Environmental Policy Act with respect to the application for the oil pipe line right-of-way or the application for adjacent temporary access space.

II. CONCLUSIONS OF LAW

1. The Court has jurisdiction over the subject matter of the complaint and the parties hereto.

2. Plaintiffs have standing to maintain this action. 3. For the purpose of this preliminary injunction, it appears that the three aforementioned applications are, in effect, a single application for a pipe line right-of-way.

(1) 4. It appears that Defendant has not fully complied with the requirements of the National Environmental Policy Act of 1969 with respect to said application, when considered together.

[2] 5. It appears that said applications, when considered together, request a pipe line right-of-way in excess of the width permissible under Section 28 of the Mineral Leasing Act of 1920, 30 U.S.C. § 185.

[3] 6. If a preliminary injunction does not issue, it would appear that Plaintiffs will suffer irreparabe injury.

7. Based upon the foregoing, a preliminary injunction against Defendant should issue.

Mr. BRANDBORG. In that period of nearly 3 years the plaintiffs and conservationists generally were greatly disappointed that the Department of Interior didn't, in compliance with NEPA, proceed to fully explore the Canadian alternatives to the 800-mile Alaska routing.

Senator HASKELL. I get that in your statement.
I have a couple of other questions.

On page 8 you say that title IV-would exceed the public's interest and permit the carving up of public land.

Don't you think that is a little strong?

Mr. BRANDBORG. No, I don't. I think the Federal Government is put into a piecemeal process here trying to do with a pattern and procedure that has been ineffective in the past.

I appreciate some of the new safeguards that are proposed in the Jackson bill, but instead of viewing the many overlapping requests for right-of-way in context, in a comprehensive package within the consideration of existing and other rights-of-way needs, and in a manner that is consistent with our transportation corridor planning and our planning of land uses on a broad scale, hopefully on a new broad scale that is made possible through legislation brought out by this committee, instead of having that kind of approach, we still would continue to respond to the initiative of the private interest which wishes the right-of-way.

Senator HASKELL. Maybe I haven't read S. 1081 carefully enough, but it seems to me that it talks of corridors and talks of necessary land use planning in connection with rights-of-way. It is pretty comprehensive, isn't it?

Mr. BRANDBORG. We feel it is not. We feel the endorsement procedures, the department and executive branch would fall into the same practices that we now see.

The revelation this morning that some 90 odd rights-of-way may be requested as to their legality under the Mineral Leasing Act makes us aware that all kinds of things have been happening to the public lands, apparently without public knowledge, apparently without the knowledge of Congress.

We don't see why hurried passage of this legislation—any of this legislation—is necessary in these circumstances until we get a full measure of what has gone on in the past, what remedial steps may be taken in legislation or otherwise to remedy some of these past transgressions, and possibly extreme violations of the Mineral Leasing Act.

Senator HASKELL. I just have one more question.

This proposed pipeline, the trans-Alaska pipeline, do I understand this is only to be an oil pipeline?

Mr. BRANDBORG. That is correct.
Senator HASKELL. Thank you for your statement.
Senator Hansen.

Senator HANSEN. Mr. Chairman, first I would like to compliment Mr. Brandborg for his statement.

He continues in the fine tradition of the society in facing issues headon and not beating around the bush at all. I must say that I admire you for that.

On page 4 of your statement, you say there is no doubt that Congress has authority to make the choice among a trans-Alaska pipeline tanker system, an all-land trans-Alaska-Canada pipeline system, a combination of the two, or some other method of delivery.

My question is: Would you care to speculate as to the time that likely could evolve in the agreement that would have to precede an all-land trans-Alaska-Canada pipeline system?

Mr. BRANDBORG. Yes, I would, Senator Hansen. I feel that if this committee and the Congress mandated a comprehensive and thorough investigation of the Canadian-Alaska alternatives and there are more than one-by an independent factfinding body-a scientific body of known and established competence—that the Congress could come back to this question within a reasonable time frame.

I would speculate that if the Congress ordered an objective appraisal to be completed in a 6- to 9-month period, those data could be gathered and brought forward for your consideration.

Beyond that, I believe with the necessary followup by the U.S. Government with Canada—followup which we have not had in either exploration of the Canadian alternatives or in negotiations with the Canadian Government-we should be able to proceed within a year's time.

I see no reason for not accepting this kind of a time schedule. Certainly the environmental movement-if I can represent it here in this observation, recognizing that I am offering an estimate—would support the exploration of the Canadian alternative.

To date we have had no data. Congress has had no data on the Canadian alternative. This was foreclosed unwillfully by the Department of the Interior to the regrettable disservice of NEPA, and the processes that are to be served by NEPA today, and in any later consideration by the Congress or the courts.

Senator HANSEN. In your judgment, would any political considerations have to be undertaken by the Canadian Government before even the gathering of data-relevant data-with respect to the physical problems as well as the environmental concerns that might be encountered in extending a pipeline through Canada have to precede this decision by the Congress?

Mr. BRANDBORG. I would ask Mr. Hillyer to comment. I believe the Canadian Government is involved in some of these investigations. I believe the Canadian Government would obviously have to be fully aware of our planning as we would want to be aware of its planning.

It is in progress with some of these investigations and studies. Data are available in Canada. To my knowledge, they have not been brought forward in any negotiations with the U.S. Government.

Mr. Hillyer has a comment.

Mr. HILLYER. I might be able to shed some light on this. During the course of discovery in the Alaska pipeline case, it was discovered the Interior Department took a 3-month survey of public information on the Canadian alternatives.

That, I understand, is really the extent of their investigation. Never has the Department of the Interior asked for or sought direct communications with the Canadian Government through appropriate channels. Perhaps that would be Department of State.

As a consequence it is very difficult to say what the problems would be, political problems in Canada or the financial problems because our Government has never attempted to find out.

Now, with regard to the delay, I think it should be borne in mind, as Mr. Brandborg indicated, that there is a consortium of oil companies that was studying for years the possibility of bringing in a pipeline from Prudhoe Bay across Canada. It is comprised of many of the same members that are in Alaska.

Second, in regard to the delay, as I am sure everyone is aware, there are substantial issues left unresolved as to whether the Secretary of the Interior has complied with his obligations under the National Environmental Policy Act to develop and to study alternatives, particularly the alternative of a trans-Alaska-Canada corridor. That could cause delay of a substantial period of time also.

Senator HASKELL. Will the Senator yield!
Senator HANSEN. I would be happy to.

Senator HASKELL. This brings me to the point I asked Mr. Smith. Don't you have a couple of additional strings to your bow under NEPA? Wasn't that the purpose of NEPA? Didn't the Circuit Court of Appeals say we don't have to decide whether the statement was accurate or inaccurate? The preliminary decision was based solely on the width of the pipeline. Furthermore, even if the environmental statement was found to take in everything under consideration, aren't there still private rights of action!

Mr. HILLYER. Well, Senator Haskell. I would like to say yes, there are procedures which can be explored in court and there is a substantial issue as to whether the Secretary has complied.

I think the society's position is in accord with that of Mr. Smith's earlier testimony, that because of the enormity and the diversity of the issues raised by the Trans-Alaska Pipeline case which involved fundamental national policies of energy, where it should go, to the Midwest or elsewhere, of the environment and how you make tradeoffs between those two, that the magnitude of these issues demands, cries out for congressional resolution and the obligations of the National Environmental Policy Act to bring out for consideration the environmental facts of the proposal don't bestow upon the Secretary of the Interior the competence to make the delicate tradeoffs and formulations of national policy that are called for by the Trans-Alaska Pipeline cases.

Senator HASKELL. Thank you.
Excuse me.
Senator Hansen. I appreciate your question.

I think, if I could attempt to summarize, and I recognize the risks in that, Mr. Brandborg, you are saying that under certain conditions, optimum, I might insert on my own, you think it is possible that a resolution of the problems and the necessity inter-governmental commitments between our Nation and our sister Republic of Canada, could

result in agreement so as to clear the way for a trans-Alaska-Canada pipeline within a year's time?

Mr. BRANDBORG. I might extend that to a year and a half, but essentially my answer is yes, providing that the Congress requires the collection to fully develop the economic and environmental questions and alternatives that are connected with the Canadian alternatives.

I believe if such an exposition could have data from an unbiased source-not the Department of Interior obviously-and was brought to the Congress, to this committee, we would see remarkable progress within a period of 11/2 years. I would hope that it would be shorter than that.

I believe we could get over this roadblock and discontinue this impasse.

Senator HANSEN. I have no further questions.
Senator HASKELL. Senator Metcalf.
Senator METCALF. Thank you, Mr. Chairman, I have no questions.
Thank you very much for a most helpful and persuasive statement.

Of course, some of the other matters you haven't touched on and we are not going to inquire about here as to the feasibility of the Alaska pipeline. It may be a subject matter of future hearings.

Mr. BRANDRORG. Mr. Chairman, Mr. Hillyer has a brief prepared remark.

Senator HASKELL. Mr. Hillyer, go ahead.

Mr. HILLYER. I don't need to go into the prepared text, I don't believe, since some of what I have to say has already been said.

I am representative for the Cordova District Fisheries Union, membership comprised of 450 commercial fishermen who depend on the waters of Prince William Sound for their livelihood and for their way of life.

I might say at the outset that we fully support the statement and testimony of Mr. Brandborg and I won't repeat any of that.

Unfortunately for the fishermen, the oil companies have routed their pipeline down to Valdez on Prince William Sound, and if it is acted upon will transform Prince William Sound into one of the world's busiest oil ports overnight.

The resulting pollution, both chronic pollution and the risk of large spills from casualties, threatens to destroy the fisheries.

In addition to the comments made by Mr. Brandborg, I would like to focus on a couple of more narrow issues that are of special interest to the fishermen.

This is picking up on the bill introduced by Senator Jackson, S. 1081. This is in line really with the earlier testimony this committee heard from the Alaska Federation of Natives.

We feel that the liability of the operators of the pipeline contained in section 5 (g) and read together with 6-H which I believe is the section that the natives were addressing themselves to should be clarified so as to read that the fishermen who depend on Prince William Sound for their fisheries are indemnified against loss to their fisheries resulting from the transfer of the oil from the pipeline to the tanker and any resulting casualties or chronic pollution such as pumping ballast water out into the sound.

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