Senator HASKELL. Did I understand you to say 3 years ago a preliminary injunction was issued on the basis of the right-of-way limitation? Did that injunction become permanent in the district court or was it vacated?

Mr. BRANDBORG. A preliminary injunction was granted. It was vacated a few months ago, at which time the plaintiffs

Senator HASKELL. On what grounds did the Federal district court hold against you?

Mr. BRANDBORG. I would ask Mr. Hillyer to provide those dates and

Senator HASKELL. If this preliminary injunction was put in force and effect 3 years ago, and if it by one form or another remained permanent for 3 years, it takes a little of the steam out of me for wanting to get things done in a hurry. What was the sequence of events, Mr. Hillyer?

Mr. HILLYER. In April 1970, Judge Hart issued a preliminary injunction based in part on the width limitation provision of the Mineral Leasing Act. That was not reviewed by the court again until August 1972, roughly half a year ago.

Senator HASKELL. It was in force and effect?

Mr. HILLYER. Yes, for the full 21⁄2 years between April 1970 and August 1972.

Senator HASKELL. One of the grounds stated was due to the inadequacy of the right-of-way?

Mr. HILLYER. Clearly. The judge found for purposes of-that even the land pleaded for haul roads as well as the additional land needed for construction of the pipeline as well as the 54-foot right-of-way itself were all requested by the applicant for a pipeline right-of-way and this exceeded the width limitation of the Mineral Leasing Act.

Senator HASKELL. Then what happened? It stayed in effect until the fall of 1972. Then what happened?

Mr. HILLYER. Then the judge dissolved the injunction finding that both the National Environmental Policy Act and Leasing Act was complied with but he made no statement of reasons as to how he reached those conclusions.

He said in order to expedite consideration by the court of appeals he would not take the time to make a lengthy finding of facts or write a lengthy opinion so he just in a very brief opinion found that the application sought by the applicants was now in compliance with the law.

Senator HASKELL. If the Federal district court's opinion is not published, or at least the opinion on preliminary injunctions is not published, will you supply that to the general counsel for the committee?

Mr. HILLYER. I would be delighted to. I might point out, as you are probably aware, when the court of appeals reviewed the district court's decision, it was unanimous that the Leasing Act provisions meant what they said.

Senator HASKELL. Thank you.

[The material requested by Senator Haskell follows:]

93-145 0-pt. 1-19

Hon. FLOYD K. HASKELL,

U.S. Senate,

WASHINGTON, D.C., March 9, 1973.

New Senate Office Building, Washington, D.C.

DEAR SENATOR HASKELL: This is to comply with your request this afternoon during hearings before the Senate Committee on Interior and Insular Affairs that I furnish for your information a copy of the preliminary injunction issued by the District Court in the Alaska Pipeline case on April 23, 1970.

The injunction, entitled Wilderness Society v. Hickel, reported at 325 F. Supp. 422, is enclosed for your convenience. I invite your attention particularly to paragraph two of the Findings of Fact and paragraph five of the Conclusions of Law.

Sincerely,

SAUNDERS C. HILLYER.

Enclosure.

THE WILDERNESS SOCIETY, FRIENDS OF THE EARTH, AND ENVIRONMENTAL DEFENSE FUND, INC., PLAINTIFFS v. WALTER J. HICKEL, SECRETARY OF THE INTERIOR, WASHINGTON, D.C., DEFENDANT

Civ. A. No. 928-70.

UNITED STATES DISTRICT COURT, DISTRICT OF COLUMBIA

(April 28, 1970)

Action by three conservation organizations against Secretary of Interior to enjoin the issuance of certain permits. On motion for preliminary injunction, the District Court, Hart, J., held that evidence established that if preliminary injunction did not issue to enjoin Secretary of Interior from issuance of permit to oil pipeline company to construct haul road and to use gravel from public lands therefor in connection with construction of trans-Alaska pipeline system, conservation organizations would suffer irreparable damage. Order in accordance with opinion.

1. INJUNCTION 147

Evidence established that oil pipeline companies which sought permits to build a haul road across public lands in Alaska in connection with proposed transAlaska pipeline and to use gravel from public lands had not fully complied with requirements of National Environmental Policy Act of 1969. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.

2. INJUNCTION 147

Evidence established that while pipeline companies' applications for permits to build haul road across public lands and to use gravel from public lands for oil pipeline rights-of-way 54 feet in width which would run from South Pacific Coast of Alaska to North Arctic Coast constituted request for pipeline right-ofway in excess of width permissible under the Mineral Lands Leasing Act of 1920. Mineral Lands Leasing Act, § 28, 30 U.S.C.A. § 185.

3. INJUNCTION 147

Evidence established that if preliminary injunction did not issue to enjoin Secretary of the Interior from issuance of permit to oil pipeline company to construct haul road and to use gravel from public lands therefor in connection with construction of trans-Alaska pipeline system, conservation organizations would suffer irreparable injury. Mineral Lands Leasing Act, § 28, 30 U.S.C.A. § 185; National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.

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.