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Authority of the Secretary of the Interior to include in permits author.

izing the occupancy of public lands by the Trans-Alaskan Pipeline Sys-
tem conditions requiring the permittee to provide for subsistence needs
of Alaska Natives pending restoration of subsistence resources im-
paired as a result of pipeline activities; submitted by Edward Wein-

berg, counsel, Alaska Federation of Natives.-Memorandum in support of the motion for expedited consideration.---Petition for a writ of certiorari to the U.S. Court of Appeals for the Dis

trict of Columbia Circuit..
Recommended changes in stipulations for proposed Trans-Alaska Pipeline.
The Wilderness Society, Friends of the Earth, and Environmental Defense

Fund, Inc., Plaintiffs v. Walter J. Hickel, Secretary of the Interior,
Washington, D.O., Defendant-Civ. A. No. 928–70, U.S. District Court,
District of Columbia, April 28, 1970.---

240 159

129 225





Washington, D.O. The committee met, pursuant to notice, at 10 a.m., room 3110, Dirksen Building, Senator Henry M. Jackson, presiding.

Present: Senators Jackson (presiding), Haskell, Johnston, Metcalf, Gravel, Hansen, McClure, and Stevens.

Also present: Jerry T. Verkler, staff director; William J. Van Ness, chief counsel;

and Steven Quarles, special counsel. The CHAIRMAN. The committee will come to order.


Today's hearing has been called to consider proposed legislation concerning rights-of-way across public lands. The necessity of legislation arises from the decision of the Court of Appeals in the Trans-Alaska pipeline case. I want to emphasize as strongly as I can, however, that today's hearing does not concern the merits or routing of the proposed Trans-Alaska pipeline. Because there has been considerable confusion and misapprehension concerning the purpose of this hearing and of the legislation to be considered here, I will devote some attention in this introduction to the relationship between the right-of-way question and the Alaska pipeline.

Federal legislation on right-of-way authority is needed immediately because the decision of the Circuit Court of Appeals for the District of Columbia on the proposed Trans-Alaska oil pipeline has cast a cloud of uncertainty over the Secretry of the Interior's legal authority to grant any kind of transport or utility right-of-way. This uncertainty extends to gas pipelines, waterlines, electrical transmission lines, communication facilities, roads, and other necessary transportation facilities across public and Federal lands.

There were two critical issues of Federal law in the Trans-Alaska pipeline case: First, the authority to grant a right-of-way broad enough for the proper construction and operation of a modern 48-inch pipeline; and second, the proposed permit's compliance with the National Environmental Policy Act of 1969. On February 9, 1973, the C.S. Court of Appeals for the District Court of Columbia Circuit unanimously determined that the Interior Secretary lacked the authority to grant a right-of-way wider than 25 feet on either side of the pipeline, the limits set out in the Mineral Leasing Act of 1920. At

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the same time, the court, in a divided opinion, declined to rule on the NEPA challenge on the ground-among others that the permit's illegality under the Mineral Leasing Act made the NEPA issue moot.

The issue of right-of-way width limits is straightforward and urgent. I have not heard, and I cannot imagine, an intellectually respectable argument against correcting this situation and eliminating the uncertainty that flows from it.

The legislation we are considering today embodies four different approaches to the issue of the Secretary's right-of-way authority. The four measures that have been submitted are:

First, section 122 of S. 1040, introduced on behalf of the administration, would eliminate the fixed limit upon right-of-way widths as part of a new Mineral Leasing Act.

Second, title IV of S. 1041, also introduced for the administration, would grant broad right-of-way authority as part of general legislation on organization and administration of the public lands.

Third, S. 1056, by Senator Fannin, would amend the Mineral Leasing Act only with respect to the right-of-way width limitation.

Finally, Š. 1081, which I introduced, would constitute a separate act defining the authority, and establishing standards and criteria for granting of all kinds of rights-of-way across Federal lands.

None of these bills would authorize construction of a Trans-Alaska pipeline, either to Valdez, or across Canada to the Midwest, nor is that their purpose. There are two bills before the committee that would indeed authorize a pipeline by one route or another: S. 970 by Senators Gravel and Stevens, and S. 991 by Senator Mondale. Those two bills are not being considered today, and this hearing is not being conducted to consider approval or disapproval of any particular pipeline proposal

It is not my intention nor the intention of this committee to shirk important national issues of public policy-issues of energy policy, environmental policy, and the economic viability of the State of Alaska. The routing and construction of a pipeline for Alaska's North Slope oil are vital national questions that cannot be masked or evaded by technical or procedural improvements in right-of-way legislation. It is increasingly apparent that Congress will sooner or later have to face up to these questions. After the Supreme Court has had an opportunity to deal with appeals from the February 9 circuit court decision, I shall announce dates for hearings on S. 993 and S. 970 and any other related measures.

The chief remaining legal issue regarding the National Environmental Policy Act is whether that act required the Secretary to give greater consideration than he did in drafting the Environmental Impact Statement to alternative transportation systems—including a Canadian pipeline. It can be argued that this is a procedural issue which is in itself less important than the substantive questions whether and where the pipeline should be built.

Nevertheless, I am not in favor of congressional intervention at this time to resolve the substantive questions one way or the other, thereby permanently mooting the lawsuits over the scope of NEPA. To do so now might advance the time of pipeline construction—but it

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could postpone for years a judicial determination of the meaning of NEPA and a resolution of the uncertainty that this issue now casts over many other kinds of Federal actions that require an environmental impact statement.

I do favor a rapid court decision regarding NEPA's requirement for examination of alternatives. The circuit court's February ruling implies that, until Congress corrects the right-of-way width problem, there is no possibility of resolving this NEPA issue. I want that question tried, and resolved finally, as rapidly as possible.

Legislaton like that being considered today is essential to the construction of any major oil pipeline across public lands in the United States—including the Alaska portion of any pipeline across Canada. It may be essential to any new right-of-way for roads, powerlines, and irrigation canals, and to the legal operation of existing facilities. Finally, it is essential in order to allow the courts an opportunty to resolve uncertainties about the application of NEPA to major Federal actions of many kinds.

Once again, none of the measures before us today will authorize any specific Alaska pipeline. That project is still subject to NEPA requirements; it is still blocked by litigation between the owner companies and the State of Alaska over regulatory and tax questions; and I understand that it faces other formidable legal and organizational difficulties. Opponents of the Alyeska project still have a host of forums in which to contest its wisdom or legality. And as I promised, this committee will schedule later hearings on S. 970 and S. 993. For this reason, I am requesting all witnesses to limit their testimony to the right-of-way issues.

In view of the many requests the committee has received from various organizations and individuals to testify on the pending bills it will be necessary to schedule further hearings. An additional day of hearings will be held on Tuesday, March 27, 1973, on the pending bills.

I direct that the text of the bills appear at this point in the record. [The text of S. 1040, S. 1041, S. 1056, and S. 1081 follows:]



S. 1040


FEBRUARY 28, 1973 Mr. Jackson (for himself and Mr. FaxNix) (by request) introduced the fol

lowing bill; which was read twice and referred to the Committee on Interior and Insular Affairs


To reform the mineral leasing laws, and for other purposes.


Be it enacted by the Senate and House of Representa

2 tives of the United States of America in Congress assembled, 3 That this Act may be cited as "The Mineral Leasing Act

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SEO. 2. It is hereby declared to be the policy of

7 Congress


(a) to foster, promote, and encourage the explorntion for and the production of the mineral deposits in



the leasable lands;

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