Order Code RL31115
CRS Report for Congress
Received through the CRS Web
Legal Issues Related to
Proposed Drilling for Oil and Gas
in the Arctic National Wildlife Refuge
Updated April 26, 2002
Pamela Baldwin
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
Legal Issues Related to Proposed Drilling for Oil and
Gas in the Arctic National Wildlife Refuge
Summary
Congress is currently considering whether to permit drilling for oil and gas in the
coastal plain of the Arctic National Wildlife Refuge, Alaska. This area is rich in
wildlife and wilderness values, but may also contain significant oil and gas deposits.
H.R. 4 passed the House with provisions authorizing ANWR oil and gas leasing. S.
388 would have authorized oil and gas leasing in the Refuge, but S. 517, the bill that
passed the Senate on April 25, 2002, does not include ANWR provisions. Senate
Amendments 3132 and 3133 to S. 517 would have included provisions similar to H.R.
4, but these amendments failed when the Senate disapproved cloture motions. As
background to conference discussions, this report analyzes all of the ANWR-related
proposals to date and the legal issues related to them.
If the current prohibition against production of oil and gas anywhere in the
Refuge is repealed, then oil and gas development and related activities could occur
not only on the federal lands, but also on Native lands within the Refuge. Although
H.R. 4 contains a 2,000 acreage limitation on the development “footprint” in the
coastal plain, this limitation would not apply to some, and possibly not to any, of the
Native lands, in which case some or all of the more than 100,000 acres of such lands
in the Refuge (inside and outside the officially designated coastal plain) could be
developed. Absent statutory clarification, development on these lands could occur
under existing standards, which many observers contend are lenient. The terms and
environmental stipulations of a 1983 Agreement with the Arctic Slope Regional
Corporation (ASRC), a Native Regional Corporation, would govern oil development
on ASRC subsurface holdings in the Refuge, unless these provisions are superseded.
ASRC chose to obtain their subsurface interests in the Refuge through land exchanges
set out in this Agreement, which expressly made any oil and gas development of the
lands contingent on Congress opening the Refuge, ASRC lands, or both, to such
development. The 1983 Agreement also contains environmental stipulations that,
while originally intended as beneficial requirements, may permit practices now
regarded as undesirable. In addition, unless the relevant provisions of the Agreement
were superseded by statutory language, it appears that the United States would have
to obtain a court order to change an ASRC leasing plan whenever the United States
and ASRC disagreed as to environmental harm.
The environmental standard used in both H.R. 4 and S. 388 — “no significant
adverse effect” — has been used in the past, but could allow a range of effects before
protection would be triggered, compared to other standards that have also been used.
New leasing and environmental regulations would be developed and mineral leases
sold on an accelerated schedule without new environmental impact studies. Many of
the environmental constraints that would be imposed on leases in ANWR would be
left to the discretion of the Secretary, whose discretionary acts would be more
difficult to challenge under the strict standard of review in H.R. 4.
Both bills would share leasing revenues with Alaska, and both would establish
new Funds with the federal share that would benefit energy research and mitigate
coastal impacts. However, the provisions on disposition of leasing revenues in the
House bill present issues related to the Alaska Statehood Act. If the disposition
provisions were enacted and later held by a court to be invalid, the revenues from
leasing could be divided 90% to the State of Alaska and 10% into the federal
Treasury, with no revenues going to conservation purposes.
The Senate bill would leave in place current authority permitting the export of
oil coming from the Refuge via the Trans-Alaska Pipeline. H.R. 4 would direct the
Secretary to prohibit export as one of the terms and conditions of leases.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. Environmental Constraints. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(A). Administration of leasing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(B). Compatibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(C). Environmental standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(D). Technology standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(E). Specific protections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(F). Possible Effects on International Polar Bear Agreement . . . . . . 12
(G). Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
II. Native Lands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(A). The nature and history of Native rights in ANWR . . . . . . . . . . 15
(B). Current bill provisions and issues . . . . . . . . . . . . . . . . . . . . . . . 22
III. Access, Rights of Way, and Exports. . . . . . . . . . . . . . . . . . . . . . . . . . 29
IV. Compliance with NEPA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
V. Judicial Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
VI. Disposition of Leasing Revenues. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
VII. Proposed Senate Amendments on ANWR. . . . . . . . . . . . . . . . . . . . 36
Senate Amendment 3132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Senate Amendment 3133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Legal Issues Related to
Proposed Drilling for Oil and Gas
in the Arctic National Wildlife Refuge
Introduction
Congress is currently considering whether to permit drilling for oil and gas in the
coastal plain of the Arctic National Wildlife Refuge (ANWR), to designate the area
as wilderness, or to retain the status quo.1 Current law prohibits the production of oil
and gas in the Refuge, but high prices for oil and natural gas have renewed debate
over whether to open the Refuge to development. H.R. 4, of which Title V of
Division F would authorize oil development in ANWR, passed the House of
Representatives on August 2, 2001. Title V of S. 388 also would direct oil and gas
development in the Refuge.2 However, S. 517, which passed the Senate on April 25,
2002, does not authorize drilling in the Refuge, and therefore, the issue must be
resolved in conference. Senate Amendment (S.Amdt.) 3132 and a second degree
amendment to it, S.Amdt. 3133, contained provisions similar to H.R. 4, but with some
differences. These amendments were not adopted.3
The landownerships and laws relevant to possible development in the Refuge are
complex, and the policy choices controversial.4 The environmental protections
provided in the bills and the effects on the Refuge and its wildlife that might result
from oil and gas development are central to the debate on whether to open the Refuge
to drilling. Legal issues that relate to possible development of the Refuge and the
proposals regarding possible leasing in ANWR discussed in this report. This report
will may be updated or revised as circumstances warrant.
Background
The Arctic National Wildlife Refuge is managed by the United States Fish and
Wildlife Service (FWS) and consists of approximately 19 million acres located at the
Northeast corner of Alaska directly adjacent to Canada. The coastal plain of the
Refuge on the Beaufort Sea is approximately 1.5 million acres and is the part of the
1See CRS Report RL31278, Arctic National Wildlife Refuge: Background and Issues., M.
Lynne Corn, coordinator.
2No committee reports are available for either bill as of the date of this report.
3148 Cong. Rec. S2,890 (daily ed. April 18, 2002).
4See CRS Issue Brief IB10073, The Arctic National Wildlife Refuge: the Next Chapter, by
M. Lynne Corn, Bernard A. Gelb, and Pamela Baldwin.
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Refuge that is richest in wildlife and migratory birds, including the Porcupine caribou
herd, polar bears, musk oxen, eagles, snow geese, and many others. The coastal plain
is directly east of Prudhoe Bay, a state-owned oil field that has provided a large
volume of oil, and many experts believe that significant deposits of oil and natural gas
may exist under the Refuge as well. The presence of biological and wilderness values
together with the potential for large hydrocarbon deposits results in the current
controversy over whether to allow oil drilling in the Refuge.
All lands in the North Slope were withdrawn January 22, 1943 by PLO 82.5 In
November, 1957, an application for the withdrawal of lands to create an Arctic
Wildlife Range was filed to protect the area’s wealth of wildlife and migratory birds.
Under the regulations in effect at that time, this application “segregated” the lands in
question, removing them from disposal. This fact was important because on July 7,
1958, the Alaska Statehood Act was passed and on January 3, 1959, Alaska was
formally admitted to the Union. On December 6, 1960 (after statehood), the
Secretary of the Interior issued Public Land Order 2214, reserving the area as the
Arctic National Wildlife Range.6
The Supreme Court has held that the initial segregation of lands before statehood
was sufficient to prevent the passage of ownership of certain submerged lands within
the Refuge to the State of Alaska at statehood.7 If this ruling had been in favor of
Alaska, certain lands beneath the rivers in the coastal plain might have belonged to the
state, which could have developed the resources in them, including the oil, gas, gravel,
and water.
In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA)8
to resolve Native claims against the United States. This Act provided the opportunity
for the selection and conveyance of lands to Native groups – usually either the surface
estate of lands to Native Village Corporations, or the subsurface estate to Native
Regional Corporations, associated with the Village Corporations within each Region.
Usually, the Regional Corporations could receive the lands beneath the Village
Corporations in their area, but subsurface lands beneath refuges were not available,
and in-lieu lands were substituted for them. Under § 22(g) of ANCSA, surface lands
conveyed in refuges were subject to the regulations applicable to the particular refuge
of which they were a part.
In 1980 Congress enacted the Alaska National Interest Lands Conservation Act
(ANILCA),9 which, among other things, renamed the Range10 to be the Arctic
58 Fed. Reg. 1,599 (February 4, 1943).
625 Fed. Reg. 12,598 (December 6, 1960). Other actions have changed the boundaries of the
Refuge, but are not relevant to this analysis of leasing on the coastal plain.
7United States v. Alaska, 521 U.S. 1 (1997).
8P.L. 92-203, 85 Stat. 688, 43 U.S.C. §§ 1601 et seq.
9P.L. 96-487, 94 Stat. 2374, 16 U.S.C. §§ 3101 et seq.
10President Carter by Proclamation 4729 of February 29, 1980 had renamed the Range “The
(continued...)
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National Wildlife Refuge, and expanded the Refuge to include an additional 9.2
million acres, mostly to the south.11 Section 702(3) of ANILCA designated much of
the original Range as a wilderness area, but did not include the coastal plain. Instead,
Congress postponed decisions on the development or further protection of the coastal
plain. Section 1002 of ANILCA designated a part of the coastal plain of the Refuge
for study. (As a result this part of the plain is sometimes referred to as the “1002
area” or the “Coastal Plain.”) The 1002 area was administratively articulated as
excluding the three townships of land belonging to the Kaktovik Inupiat Corporation
(KIC), a Village Corporation.12 However, these lands geographically are on the
coast of ANWR, and are very important to the wildlife and scenic resources of the
area. Pursuant to § 1431(g) of ANILCA, KIC was entitled to receive additional lands
within the Coastal Plain. These additional lands total 19,588 acres. Section 1003
prohibited oil and gas development in the Refuge as a whole, and “leasing or other
development leading to production of oil and gas from the range” unless authorized
by an Act of Congress.13
In 1983 the United States and the Arctic Slope Regional Corporation (ASRC),
a Native Regional Corporation, executed an agreement (“the 1983 Agreement”)
embodying an exchange of lands under which ASRC would receive title to the
subsurface estate beneath the KIC surface lands. Normally, ASRC would not have
received these lands because they were in a refuge. By the terms of the 1983
Agreement, the ASRC lands in ANWR cannot be developed unless Congress opens
ANWR, the ASRC lands, or both to oil development. Conversely, if Congress opens
ANWR, then the more than 92,000 acres of Native lands ( KIC surface/ASRC
subsurface) in the four townships within the Refuge could be developed. These
extensive Native holdings would be affected by the authorization of oil and gas
10(...continued)
William O. Douglas Arctic Wildlife Range.” ANILCA did not address this proclamation, but
renamed the lands comprising the original Range and the added lands as the Arctic National
Wildlife Refuge.
11Section 303(2).
12Section 1002(b) of ANILCA defines the “coastal plain” as the area identified as such in the
map entitled ‘Arctic National Wildlife Refuge’, dated August 1980.” The Refuge map
published in the Federal Register Notice of the legal description of the boundaries of the
Refuge does not show the native lands as excluded. (48 Fed. Reg. 7980 (February 24, 1983)).
We are having trouble obtaining a copy of the original map of the Refuge certified in August,
1980 (the map referenced in the statute). One copy shows the boundaries of the KIC lands
with the boundaries crossed out by hand, but without any explanation of when and by what
authority these marks appeared or what their significance was intended to be with respect to
the coastal plain. Maps certified in August, 1980 exist labeled Refuge and Wilderness, but
we have not been successful in obtaining any map of that date that depicts the coastal plain
labeled as such. Yet, when the legal description of the boundaries of the coastal plain
(excluding KIC lands then conveyed) were published on April 19, 1983 (48 Fed. Reg. 16838),
the introductory material asserts: “By virtue of the map referred to in section 1002(b)(1),
lands in which the surface estate has already been conveyed to Kaktovik Inupiat Corporation
... are excluded from the coastal plain ....”
13It is not clear whether this language was intentional, but it may have been intended to allow
preliminary activities in the additional lands that were added to the Refuge.
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development on the coastal plain, and, in turn, could also affect the Refuge and its
resources. In addition, there are individually owned Native allotments within the
Refuge that might be developed if oil and gas drilling is allowed. All types of Native
lands within the Refuge total more than 100,000 acres.
As interest in the possible leasing of the coastal plain has increased, review of
several legal aspects of possible drilling in the Refuge appears timely.
Issues
I. Environmental Constraints.
One of the most controversial aspects of any consideration of possible leasing
in the Refuge is what the environmental effects of leasing are likely to be. There have
been vigorous assertions on both sides — either that the bills are highly protective of
the environment, or that they are not. Hence the environmental aspects of the current
bills are of particular interest. Some of the most critical elements in an analysis of the
environmental provisions of the bills are: 1) the agency that would administer the
leasing program; 2) the compatibility of leasing with the purposes of the Refuge; 3)
the standard for environmental protection and how might it function in practice; 4) the
level of industrial technology required; 5) the protections that would be statutorily
provided with respect to the wildlife resources of the Refuge; and 6) the extent to
which administrative decisions and actions implementing a leasing program were
judicially reviewable. This last item will primarily be discussed later in this report
under the heading “Judicial Review.”
(A). Administration of leasing. Under the National Wildlife Refuge
System Administration Act (“Refuge Administration Act”) on the management of the
National Wildlife Refuge System, it is the Secretary of the Interior acting — “through
the United States Fish and Wildlife Service” — who is to administer Refuge lands.14
This language was added by Congress in 1976 to clarify that management of refuges
could not be administratively assigned to other agencies.15 Under current law, when
evaluating whether to approve an activity in a refuge, the Director of the FWS (or an
FWS officer to whom the duties are delegated) may approve an activity only if it is
compatible with the major purposes for which the System and the particular unit were
created. Longer-term uses must be compatible with all the purposes, major or
otherwise, of both the System and the particular unit.16 The Refuge Administration
Act does not close refuges to possible oil and gas leasing, but many individual units
are withdrawn and leasing is allowed on very few.
Although the Bureau of Land Management (BLM), another agency also in the
Department of the Interior, is generally the mineral development manager for the
1416 U.S.C. § 668dd(a)(1).
15P.L. 94-223, 90 Stat. 199.
1616 U.S.C. 668dd(d).
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United States,17 the Mineral Leasing Act does not specify that the Secretary of the
Interior is to administer leasing through that agency. Current mineral leasing
regulations recognize the authority of FWS over the wildlife resources on refuge lands
and reserve considerable authority to the Director of FWS with respect to oil and gas
leasing in Refuges:
(a)... Sole and complete jurisdiction over such lands for wildlife
conservation purposes is vested in the Fish and Wildlife Service
even though such lands may be subject to prior rights for other
public purposes or, by the terms of the withdrawal order, may be
subject to mineral leasing.
(b)... [t]here is to be no drilling or prospecting under any mineral
lease heretofore or hereafter issued on lands within a wildlife
refuge except with the consent and approval of the Secretary
with the concurrence of the Fish and Wildlife Service as to the
time, place and nature of such operations in order to give
complete protection to wildlife populations and wildlife habitat
on the areas leased, and all such operations shall be conducted in
accordance with the stipulations of the Bureau on a form
approved by the Director [of the National Wildlife Refuge
System].18
This protective posture is repeated in another regulation that provides:
Leases shall be issued subject to stipulations prescribed by the
Fish and Wildlife Service as to the time, place, nature and
condition of such operations in order to minimize impacts to fish
and wildlife populations and habitat and other refuge resources
on the areas leased. The specific conduct of lease activities on
any refuge lands shall be subject to site-specific stipulations
prescribed by the Fish and Wildlife Service.19
Given that there are no statutory requirements that mineral leasing be through
the BLM, and that since 1976 there is a statutory requirement that management of
refuges be by the Secretary through the FWS, it is not clear by what authority BLM
is the lead agency with respect to leasing in refuges. Even if the Refuge
Administration Act could be interpreted as only addressing the surface management
of refuges, it can be asked whether the approval of the Secretary of leasing in refuges
must be given through FWS, which is to say with the concurrence of the Director of
FWS. We are not aware of any Departmental interpretation of these issues.
17See Secretarial Order 3087, December 2, 1982, as amended February 7, 1983 (48 Fed. Reg.
8983).
1843 C.F.R. § 3101.5-1.
1943 C.F.R. § 3101.5-4.
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Under current procedures, refuges in Alaska that are open to leasing are not to
be available until the FWS has first completed compatibility determinations.20 A new
compatibility policy and new regulations were published on October 18, 2000, and
became effective November 17, 2000.21 “Compatible use” is defined as a “proposed
or existing wildlife-dependent recreational use or any other use of a national wildlife
refuge that, based on sound professional judgment, will not materially interfere with
or detract from the fulfillment of the National Wildlife Refuge System mission or the
purpose(s) of the national wildlife refuge.”22 Native lands in Alaskan refuges that are
subject to certain restrictions under § 22(g) of ANCSA are expressly subject to the
regulations on compatibility in 50 C.F.R. 25 and 26.23
PLO 2214, which withdrew lands to create the original Arctic National Wildlife
Range, withdrew the lands from operation of the mining laws, but not from the
mineral leasing laws. Congress in § 1003 of ANILCA reserved to itself the decision
of whether to lease the coastal plain area.24 The current bills would authorize oil and
gas leasing and address both management and compatibility.
H.R. 4 states in § 6503(a) that leasing is to be under the Mineral Leasing Act
(MLA)25 and administered by the Secretary — which term is defined in § 6502(2) as
the Secretary of the Interior or the Secretary’s designee. As noted above, generally
leasing under the MLA is conducted by the BLM, with conditioning authority in FWS
when the leasing is in a refuge. Because there is no reference to the usual powers of
the Director of FWS, and because, under § 6507 of H.R. 4, the Secretary is to
impose the environmental stipulations through new leasing regulations, the role of the
FWS is ambiguous.
However, in 1981, a court found the administrative assignment of responsibility
for studying the coastal plain area under § 1002 of ANILCA to the United States
Geological Survey rather than to FWS to be unlawful because the Refuge
Administration Act requires that the Refuge System be administered by the Secretary
of Interior through FWS, absent a clearly expressed legislative intent to the contrary.26
H.R. 4 does not expressly assign leasing responsibilities to the BLM, although that
result is implied by the reference to leasing being under the MLA. The bill also does
not expressly modify the usual authority of FWS to manage and protect the Refuge
resources and to condition mineral leases. Therefore, an argument can be made that
FWS retains that authority, and would develop the environmental constraints on
surface disturbance in the leasing regulations. However, the intent of Congress is not
2043 C.F.R. § 3101.5-3.
2165 Fed. Reg. 62484 and 65 Fed. Reg. 62458, respectively.
2250 C.F.R. § 25.12(a) and see 16 U.S.C. § 668ee, which is nearly identical.
2350 C.F.R. § 25.21(b).
2416 U.S.C. § 3143.
25This language also raises issues in connection with the revenue-sharing provisions. See
“Revenues” below.
26Trustees for Alaska v. Watt, 524 F. Supp. 1303 (D. Ak. 1981), aff’d 690 F. 2d 1279, 1307
(9th Cir. 1982).
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clear in light of the fact that H.R. 4 directs the Secretary to develop environmental
constraints but omits the direction that the Secretary act “through the Fish and
Wildlife Service.” As the legislation evolves, the respective jurisdictions of BLM and
FWS in this context may be clarified.
Section 503(a) of S. 388 expressly states that BLM, rather than the FWS, is to
manage the leasing program. That section directs the Secretary, “acting through the
Bureau of Land Management in consultation with the Fish and Wildlife Service and
other appropriate Federal offices and agencies,” (emphasis added) to establish and
implement an oil and gas leasing program that is to ensure that oil and gas production
will result in no significant adverse effect on the wildlife and environment. Section
503(d) further states that the title (Title V) is to be the “sole authority” for leasing in
the Refuge. These provisions more clearly place BLM in charge of both supervising
leasing and developing and carrying out environmental constraints, a departure from
the current posture of the law. The scope of authority left to the FWS to protect the
wildlife resources of the Refuge from the effects of oil drilling is not clear, but appears
to be less than under current law and regulations, where, as discussed above, the FWS
can impose terms and conditions on leases.
Arguably, placing BLM in charge of the leasing program for ANWR and
evidently reducing the otherwise applicable role of FWS could divorce the mineral
development aspects from the biological/wildlife purposes and the expertise of FWS
personnel, and may result in the coastal plain of ANWR receiving less protection than
lands in other refuges do under current law and regulations.
Both the 1983 Agreement and many past bills in Congress continued
responsibility for ANWR leasing with the FWS, subject to congressionally enacted
direction. Pursuant to § 1002 of ANILCA, the FWS adopted regulations (see 50
C.F.R. Part 37) governing the exploratory activities that took place in the Refuge
(B). Compatibility. Both § 503(c) of S. 388 and § 6503(c) of H.R. 4 state
that for purposes of the Refuge Administration Act, the oil and gas leasing program
and activities in the coastal plain are deemed to be compatible with the purposes for
which the Arctic National Wildlife Refuge was established, and that no further
findings or decisions are required to implement this determination. (Emphasis added.)
This provision both answers the compatibility question and appears to eliminate the
usual compatibility determination processes. Arguably too, it raises additional
ambiguities as to FWS authority to impose conditions on leases and as to what extent
and by whom impacts resulting from activities occurring on Native lands may be
regulated. (See Native Lands section below.) The general statement that leasing
“activities” are compatible arguably may encompass a great many actions such as
construction and operation of port facilities, staging areas, personnel centers, etc.
(C). Environmental standard. Both bills use “no significant adverse effect”
on fish and wildlife, their habitat, subsistence resources, and the environment as the
standard that is to guide leasing.27 This phrase is not defined in either bill, but has
been used in the past. It was used in § 1002 of ANILCA as the standard for the
27See, e.g., § 503(a) of S. 388 and § 6503(a)(2) of H.R. 4.
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limited exploration allowed under that section, throughout the 1983 Agreement, and
in past bills that authorized leasing.28 Arguably, it could be seen as analogous to the
standard used in the National Environmental Policy Act (NEPA), which is “significant
effect on the quality of the human environment.” (In practice this has been interpreted
as addressing only significant adverse effects.) Although the contexts are different,
judicial interpretation of NEPA may provide guidance in applying the standard
contained in the ANWR bills.
The standard of significant adverse effects might allow considerable
environmental harm before the threshold is crossed. Although the standard has been
used before, Congress has also chosen other, more protective, language at times. For
example, the language Congress used with respect to exploration in environmentally
sensitive areas of the National Petroleum Reserve - Alaska was to “assure the
maximum protection of such surface values consistent with the requirements of this
Act for the exploration of the reserve.”29 Another example of other language
Congress has used is the Wilderness Act of 1964, which requires that mineral leases
in wilderness areas “shall contain such reasonable stipulations as may be prescribed
by the Secretary of Agriculture for the protection of the wilderness character of the
land consistent with the use of the land for the purposes for which they are leased,
permitted, or licensed.30 A statute that addresses already existing mining rights in
national parks requires that mining rights be “subject to such regulations prescribed
by the Secretary of the Interior as he deems necessary or desirable for the preservation
and management of those areas.31 In ANWR, Congress would be authorizing new
leasing and hence would have greater latitude to impose a protective standard without
infringing upon existing rights.
(D). Technology standard. Both bills require the use of the “best
commercially available technology for oil and gas exploration, development, and
production, on all new exploration, development, and production operations, and
whenever practicable, on existing operations, ....” This means that the best
commercially available technology will be required for initial installation and
production, and should be phased into on-going operations, if practicable, as new
technology develops. A computer search indicates that the phrase “best commercially
available technology” is not currently used in the U.S. Code, and does not have any
available judicial interpretation.32 Because it refers to technology that already is more
28See H.R. 1320 and S. 1220, 102d Congress. H.R. 1320 defined the term as follows: “The
term ‘significant adverse effects’ means those effects on habitat quality or availability which,
despite the reasonable application of mitigation measures involving appropriate technology,
engineering, and environmental control measures, including siting and timing restrictions, are
likely to result in widespread long-term reductions in the natural abundance or distribution of
a species of fish or wildlife on the coastal plain.”
2942 U.S.C. § 6504(b).
30Act of September 3, 1964, 78 Stat. 890, 893, 16 U.S.C. § 1133(d).
31P.L. 94-429, 90 Stat. 1342, 16 U.S.C. § 1902.
32Several provisions in current law use the phrase “commercially available technology” and
at least two provisions call for technological improvements above that standard. See 42
(continued...)
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widely available, it may be a more lenient standard than “best available technology
economically achievable,” or “best practicable control technology” — both of which
standards are used in the Clean Water Act.33
(E). Specific protections. Both bills contain provisions that would provide
specific environmental protections. Many of these provisions leave much to the
discretion of the Secretary. The evaluations of environment effects made by the
Secretary, and the particular actions taken by the Secretary in the exercise of the
Secretary’s discretion would be insulated under the House bill by the stringent
provisions on judicial review. (See “Judicial Review” below.) This fact — that the
Secretary’s environmental choices could be difficult to overturn — is relevant to many
of the provisions discussed in this part.
Section 503 of S. 388 and § 6503(e) of H.R. 4 provide that the Secretary, “after
consultation with the State of Alaska, City of Kaktovik, and the North Slope
Borough,” is authorized to designate up to a total of 45,000 acres of the 1002 area
as “Special Areas” and close such areas to leasing if the Secretary determines that
they are of “such unique character and interest so as to require special management
and regulatory protection.” However, closure is discretionary and designated areas
may be leased if the Secretary limits or conditions surface use and occupancy by
lessees.34 This provision does not require consultation with the FWS, and the
Secretary may implement the advice of state and local entities as to designation,
special protection, and possible closure of unique and special areas.
The above-cited sections would impose an acreage limit of 45,000 acres (out of
the 1.5 million coastal plain acres) that could be designated as Special Areas for
optional special protection or closure. The House bill contains additional details, such
as the direction in §6503(e)(1) that the Secretary designate the Sadlerochit Spring
area, comprising approximately 4,000 acres, as a Special Area, and §6503(e)(2) that
Special Areas be managed so as “to protect and preserve the area’s unique and
diverse character including its fish, wildlife, and subsistence resource values.”
Both bills state that the closure authority in the bill is the sole source of closure
authority.35 This may eliminate any separate authority under the Refuge
Administration Act to close areas, and also raises the question of whether closure is
an available option if it is determined to be necessary to avoid jeopardizing a species
under the Endangered Species Act. Possibly ESA-necessitated closures could exhaust
32(...continued)
U.S.C. § 5906(b)(1) re non-nuclear energy research; 42 U.S.C. §§ 13331 and 13351 re clean
coal technology.
3333 U.S.C. § 1311.
34The House bill also contains a paragraph (4) entitled “Directional Drilling,” which permits
“horizontal drilling” under Special Areas. Although the two terms are similar in common
usage, directional drilling may be the broader term and the same term should be used in both
the caption and substance of the section. Section 503(f) of S. 388 also refers to horizontal
drilling.
35See §§ 6503(f) in H.R. 4 and 503(g) in S. 388.
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the acreage available for closure, making that tool unavailable where closure is merely
desirable to avoid harm, rather than crucial to survival of a species.
Section 6506(a)(2) of H.R. 4 and § 508(7) of S. 388 provide that the Secretary
may close, on a seasonal basis, portions of the Coastal Plain to exploratory drilling
activities as necessary to protect caribou calving areas and other species of fish and
wildlife. There is no express authority for seasonal closures during the production
phases of oil development in the Senate bill. However, § 6507(d)(2) of H.R. 4
authorizes “[s]easonal limitations on exploration, development, and related activities,
where necessary, to avoid significant adverse effects during periods of concentrated
fish and wildlife breeding, denning, nesting, spawning, and migration.” It is not clear
what would need to be shown to demonstrate the necessity of seasonal closures, or
to demonstrate effects sufficiently significant and adverse to justify closure. It also
is not clear whether seasonal closure areas count toward the acreage limitation on
closures.
Under both bills, the Secretary is to develop regulations to govern the leasing of
the coastal plain. These leasing regulations are to be developed within 14 months
under § 504(a) of the Senate bill and within 15 months under § 6503(g)(1) of H.R.
4. Under § 6504(e)(1) of the House bill, the first lease sale is to be held within 22
months after enactment and under § 506 of the Senate bill the deadline is within 20
months of enactment. See the heading “NEPA Compliance” below for a discussion
of the fact that other bill provisions would eliminate comprehensive new
environmental studies in order to achieve this accelerated leasing schedule.
The leasing regulations required under the House bill must include regulations
that relate to the protection of the fish and wildlife, their habitat, subsistence
resources, and the environment of the Coastal Plain.36 Both bills would direct the
Secretary to impose terms and conditions on leases to address environmental
concerns, but there is little detail under the Senate bill. The environmental provisions
would undoubtedly provide some protections, but the net import of some of the
provisions is unclear.
For example, the reclamation standard in §§6506(a)(5) of H.R. 4 and 508(17)
of S. 388 requires reclamation to a condition capable of supporting the uses which the
lands were capable of supporting prior to exploration or development or “upon
application by the lessee, to a higher or better use as approved by the Secretary.”
Under general zoning law, “higher or better” uses are those that “bring the greatest
economic return.”37 Uses that are ‘higher and better’ than undeveloped wildlife
habitat could include many conditions.
Under §§ 6506(a)(6) and 508(18), environmental conditions may be a part of
a lease “as required” pursuant to previous sections. (Emphasis added.) This
language may mean only as required to avoid “significant adverse effects.” There is
no express authority to impose conditions that embody a margin of safety and it is not
clear whether a court would read in that authority.
36Section 6503(g)(1) and § 6507(c).
37Black’s Law Dictionary (6th ed. 1990).
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Section 6507(d) requires that the proposed regulations and lease conditions
comply with all applicable provisions of Federal and State environmental law, which
would include a broad range of requirements. However, the applicable laws
governing management of refuges may be modified by the instant legislation, as
indicated.
Section 6507(d)(1) of H.R. 4 requires protective standards “at least as effective
as the safety and environmental mitigation measures set forth in items 1 through 29
at pages 167 - 169 of the “Final Legislative Environmental Impact Statement” (April
1987) on the Coastal Plain.” These measures also include many beneficial items, but
some of the measures, by regulating certain activities may basically condone those
activities – e.g. the provisions that address roads and other permanent infrastructure
facilities, incinerators, marine facilities, docks, causeways, etc. Although the
legislated language requires the new ANWR leasing standards to be “at least as
effective as” the 1987 measures and therefore would allow more stringent measures,
additional statutory requirements and guidance might provide clarity regarding some
of those important infrastructure topics and to guide development on both the federal
and the Native Lands in the Refuge.
Section 6507(a)(3) of the House bill would require that the Secretary ensure
that:
the maximum amount of surface acreage covered by production
and support facilities, including airstrips and any areas covered
by gravel berms or piers for support of pipelines, does not
exceed 2,000 acres on the Coastal Plain.
This provision would require that oil development facilities not occupy more
than 2,000 acres on the Coastal Plain. The reference to surface acreage “covered by”
production and support facilities may exclude facilities that are not touching the
ground, e.g. the pipes in elevated pipelines. Two thousand acres is a small amount
relative to the 1.5 million acre plain. However, given that under both bills the
Secretary is required to lease not less than 200,000 acres in the first lease sale,38 a
greater footprint may prove necessary. Also, it is likely that oil development facilities
will not be in a single, consolidated footprint, but scattered over a much larger area
and connected by pipelines and possibly roads. Equally important, if oil and gas were
discovered in commercial quantities, it appears that support and development facilities
could be constructed on Native lands, and such construction arguably is not
constrained by the 2,000 acre limitation.39 If not, then more than an additional 23,000
acres within the coastal plain and over 100,000 acres of Native lands within the
38See § 6504(d) in H.R. 4 and § 506 of S. 388.
39The leasing program addresses leasing of the federal lands. Under the 1983 Agreement
discussed in the following section of this report, the Arctic Slope Regional Corporation agreed
that the terms of that agreement governing oil development on its lands could be modified by
subsequent legislation on oil development in ANWR, but there is no indication in the House
bill that the 2,000 acre limit on surface use in the coastal plain is intended to apply to the
Native lands.
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Refuge as a whole might be available for surface occupancy associated with oil
development. (See “Native Lands,” below.)
The House bill in § 6507(b)(1) requires a site-specific analysis of the probable
effects, if any, that drilling or related activities will have on fish and wildlife, their
habitat, and the environment. (See the discussion of NEPA Compliance below.)
Section 6507(b)(2) requires that a plan be implemented to avoid, minimize, and
mitigate (in that order and to the extent practicable) any significant adverse effect
identified under paragraph (1). This preference of avoiding adverse effects is clearly
a protective posture. However, under § 6507(b)(3) this plan is to be developed “after
consultation with” the agency or agencies having jurisdiction over matters mitigated
by the plan. This last reference would be to the FWS, which has the authority under
current law to develop and approve of such plans and activities, rather than to consult
regarding them.
Section 6507(d)(3) requires that exploration activities be limited to the winter
and be conducted by ice roads or other means that buffer the tundra, but then also
provides that the Secretary may allow other exploration if special circumstances exist
and the Secretary finds such exploration will have no significant adverse effect on the
fish and wildlife, their habitat, and the environment of the Coastal Plain.
Similarly, § 6507(d)(4),(5),(7), and (12) relate to potential controls of roads,
transportation, and air traffic disturbance, but no specific controls are enacted. Here
too, the regulations will depend on the Secretary’s interpretation. This is also true
with respect to the requirements for “appropriate” controls on explosives, sand and
gravel extraction, etc.
The Senate bill does not elaborate on the terms and conditions to protect the
environment, except to direct that leases may contain terms and conditions “as
required” by § 503(a) of the bill — i.e., to avoid significant adverse effects.
It may also be asked what penalties would be available to enforce the
environmental protections and other lease requirements. H.R. 4 does not specifically
address penalties for violation of lease terms by a lessee. The bill does state that
leasing in the Refuge would be under the MLA. The MLA provides for cancellation
of leases for infractions,40 and the MLA leasing regulations also provide civil and
criminal penalties for leasing violations, including failure to comply with lease terms.41
Because of the ambiguity about the role of FWS regarding the leasing activities, it is
not clear whether the penalties usually available for infractions on refuge lands would
continue to apply in this context. If so, these include fines and imprisonment.42
Under § 513 of S. 388, the Secretary is to diligently enforce all regulations and
lease terms and under § 508(10), if a lessee of a non-producing lease fails to comply
with any provisions of the act or any other law or leasing regulation, the lease may be
4030 U.S.C. § 188.
4143 C.F.R. Subpart 3163.
4216 U.S.C. 668dd(f) and (g).
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canceled by the Secretary after 30 days notice. Under §508(11) of S. 388, a
producing lease may be forfeited and canceled by any appropriate proceeding brought
by the Secretary in any United States district court having jurisdiction under the
provisions of that title.
Because § 503(d) states that it is the sole authority for leasing in the 1002 area,
arguably the penalties available under the Refuge Administration Act would not be
available for environmental infractions by a lessee.
To whatever extent only cancellation is available as a penalty for violation of
lease terms, the absence of a gradation of penalties could make adequate enforcement
of environmental protections difficult. Penalties for a specific violation of another
law, such as the Clean Air Act, arguably would still be available under that law.
(F). Possible Effects on International Polar Bear Agreement.
Beginning in the sixties, concern grew regarding the protection of marine mammals,
including the polar bear. In 1972, the Marine Mammal Protection Act (MMPA) was
enacted. In 1973, the United States, Canada, Denmark, Norway and the former
Union of Soviet Socialist Republics developed an international agreement on polar
bear conservation.43 This Agreement was ratified by the United States in 1976.
The Agreement prohibits the “take” of polar bears, which term is defined as
“hunting, killing and capturing.”44 Article III sets out five exceptions to the taking
prohibition, which a party to the Agreement may allow. These exceptions include
several relating to traditional take by a party’s nationals; take for scientific purposes,
for conservation purposes, or to prevent serious disturbance of the management of
other living resources.
Article II of the Agreement requires certain actions to protect habitat of the
bears. Parties are to:
1) take “appropriate action to protect the ecosystem of which
polar bears are a part;”
2) give “special attention to habitat components such as denning
and feeding sites and migration patterns;” and
3) manage polar bear populations in accordance with “sound
conservation practices” based on the best available scientific
data.
Recently, some critics have asserted that oil and gas development in the Arctic
may be inconsistent with or violate the Agreement in that such development could
result in the death of polar bears. A draft report to Congress raised questions in this
43Agreement on the Conservation of Polar Bears, T.I.A.S. No. 8409, 27 U.S.T. 3918 (Nov.
15, 1973) [hereinafter Polar Bear Agreement].
44Id., art.I(2).
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regard.45 One of the principal issues raised is that the MMPA permits the
unintentional taking of polar bears incidental to other lawful activities. The draft
report asserts that such take would be inconsistent with the Agreement because there
is no exception for such take in Article I or III and “if a lethal take were to occur
during activities conducted under incidental take authority, the United States arguably
could be considered to not be in compliance with the Agreement.”46
However, the argument can be made that all references to killing or taking polar
bears in the Agreement, whether in the prohibition or the exceptions sections, are to
intentional take. Given this fact, the argument could continue, it is not inconsistent
with the Agreement for an implementing law to permit but regulate incidental take.
That this could be an appropriate interpretation is bolstered by the wording of the
discussion accompanying the recommendation to ratify the Agreement, which also
discusses only intentional takes – whether through hunting, or for other specified
reasons.47 Furthermore, the State Department, in presenting the Agreement to the
President for transmission to the Senate for its advice and consent, took the position
that the MMPA provided adequate domestic legislation to implement the terms and
provisions set forth in the Agreement.
However, a more generalized argument could be made that the combination of
the MMPA and the opening of ANWR to leasing, with concomitant development of
the Native coastal lands, either per se or as such development progressed in actuality,
could violate the pledge by the United States to protect the ecosystem upon which the
bears depend. In such an eventuality recourse would be available only to the other
parties to the Agreement, but the argument exists as a policy argument against such
leasing activities, and at least one commentator asserts that such leasing might result
in an inconsistency with the Agreement, such that either the Agreement or the MMPA
should be amended.
The Polar Bear Agreement does not authorize incidental take
within the polar bear protection zone. Such takes are authorized
under section 101(a)(5) of the MMPA. Because the Agreement
does not now prohibit harassment, an inconsistency exists only
to the extent such takes would be lethal, involve the capture of
bears, or be a product of habitat degradation or destruction.
Because there is potential for polar bears to be lethally taken
incidental to activities such as oil and gas operations, it is
necessary to either amend the Agreement or to amend the
MMPA to prohibit such takes if consistency with the Agreement
45Draft Report to Congress on Status of United States Implementation of the 1073
International Agreement on the Conservation of Polar Bears, Prepared by U.S. Fish and
Wildlife Service, Alaska Region, October, 1997.
46Id., at 9.
47Executive Rep. No. 94-34 (1976).
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is the goal. Takes by harassment could still be allowed under the
MMPA, consistent with the Agreement.48
(G). Discussion. There are few specific requirements in either bill that
address particular items of environmental concern, such as port and support facilities,
airstrips, disposal of wastes, gravel mining, water sources, etc. Many details of the
environmental constraints would be left to the leasing regulations that are to be
developed by the Secretary with very little advance study and little statutory guidance
other than the avoidance of significant adverse effects. The role of the FWS is
ambiguous, but appears to be less than under its current authority. Many decisions
relating to the protection of the fish and wildlife resources of the Refuge and the
protection of the environment in general would be committed to the discretion of the
Secretary, whose choices would be difficult to challenge under the strict standards for
judicial review in the House bill. A gradation of penalties for wrongdoing by a lessee
may not be available. The Senate bill provides only for a judicial cancellation of a
producing lease as the recourse; the House bill provides for cancellation, but penalties
under the MLA may also be available. It is unclear whether the currently available
penalties for violations in refuges would be available. And, arguably, the reclamation
standard provides that at the end of the potentially lengthy period of mineral leasing
activity, restoration of lands to current wildlife uses would not necessarily be required.
II. Native Lands.
Both bills would repeal § 1003 of ANILCA, thereby permitting oil and gas
development on both the federal Refuge lands and on the Native lands within the
Refuge.49 These Native lands total over 100,000 acres, and although some of the
most important elements in assessing the possible impacts of opening ANWR to
leasing involve the property interests of Native-Americans in the Refuge, this aspect
of permitting leasing has been little discussed. Both Native individuals and Native
Village and Regional Corporations have various interests relevant to the issue of oil
drilling in ANWR.
(A). The nature and history of Native rights in ANWR.
ANCSA. In 1971, Congress enacted the Alaska Native Claims Settlement Act
(ANCSA) to resolve Native aboriginal claims against the United States. ANCSA
provided for monetary payments and also created Village Corporations that received
the right to select the surface estate to approximately 22 million acres of lands in close
proximity to villages. A village located in or adjacent to a refuge could select a
certain amount of surface lands within the refuge,50 thereby maintaining traditional
ways of life. Under §22(g) of ANCSA, lands chosen in pre-ANCSA refuges were
subject to the laws and regulations governing the use of the refuge of which they were
48Donald C. Baur, Reconciling Polar Bear Protection under United States Laws and the
International Agreement for the Conservation of Polar Bears, 2 ANIMAL LAW 9, 85
(1996)(footnote omitted).
49Section 503(b) of S. 388; § 6503(b) of H.R. 4. See Native Lands section below.
50Section 12(a)(1); 43 U.S.C. § 1611(a)(1).
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a part.51 The Kakovik Inupiat Corporation (KIC), a Village Corporation in the
Refuge, received selection rights to three townships under ANCSA.52
ANCSA also created Regional Corporations which could receive subsurface
rights to some lands and full title to others. The Regional Corporations typically were
entitled to lands beneath the Village Corporation lands with which they were
associated. However, subsurface rights in National Wildlife Refuges were not
available, but in-lieu selection rights were provided to substitute for such lands.53
Even though the shareholders of a Village Corporation shared in the profits of the
relevant Regional Corporation, the interests of a Regional Corporation in maximizing
the economic development of its subsurface estate may not always coincide with the
interests of a Village Corporation in possibly using the surface estate for subsistence
hunting and other traditional uses.
ANILCA. The 1980 ANILCA contained many provisions that followed up on
ANCSA. Section 1002 of ANILCA designated the “coastal plain” of the Refuge as
“the area identified as such in the map entitled ‘Arctic National Wildlife Refuge,’
dated August, 1980.” The Refuge map published in the Federal Register Notice of
the legal description of the boundaries of the Refuge does not show the native lands
as excluded.54 The map that is believed to be the original map referenced in the Act
is a large foam-board panel that shows the three ANCSA-authorized KIC townships
marked in the same manner as is the exterior boundary of the Refuge, but without any
explanation of the intended meaning of the delineation. The boundaries of the pool
of lands from which KIC selections could be made also is depicted, so the delineation
could have been informational only, or could have been intended to connote
something more. The KIC lands are not differentiated by color from the rest of the
coastal plain or Refuge. The map of the Refuge published in the Federal Register
Notice of the legal description of the boundaries of the Refuge does not show the
native lands as excluded, and neither do the first generation paper maps from
December, 1980. On the other hand, these maps are labeled only “Refuge” and
“Wilderness,” and do not depict the coastal plain labeled as such.
Section 103(b) of ANILCA authorized the publication of a map and legal
description of each change in land management status effected by this Act and “each
such description shall have the same force and effect as if included in this Act ...”
However, only minor boundary adjustments (stated as an increase or decrease of not
more than 23,000 acres) were authorized, and only after notice in writing to the
Congress. The legal description of the boundaries of the coastal plain published on
April 19, 1983, excludes the three ANCSA-authorized townships of KIC lands. The
introductory material to the legal description states: “By virtue of the map referred
to in section 1002(b)(1), lands in which the surface estate has already been conveyed
51Section 22(g), 43 U.S.C. § 1621(g).
52A “township” is a unit of the federal surveying system that is a block of land 6 miles on a
side, divided into 36 mile-square sections, each of which contains 640 acres. Therefore, a
township consists of 23,040 acres.
5343 U.S.C. § 1611(a)(1).
5448 Fed. Reg. 7980 (February 24, 1983).
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to Kaktovik Inupiat Corporation ... are excluded from the coastal plain, and therefore,
a permit issued pursuant to §1002(b)(1) cannot authorize exploration of those
lands.”55 However, at this time, the subsurface was still federal and its development
was subject to federal regulation. Further, it is important to note that geographically
the KIC lands are on the coastal plain and are important to the wildlife of the area.
Section 103(c) of ANILCA states that only the public lands within the
boundaries of an conservation system unit are deemed to be included as a portion of
the unit, and that conveyed Native (or state) lands shall be subject to the regulations
applicable solely to the public lands within such units. This issue of separate
regulations is addressed elsewhere in this report.
Under § 1431(g) of ANILCA, KIC was authorized to obtain additional lands,
and obtained the rights to a fourth township in the 1002 area. As a result, KIC has
surface rights to three townships along the coast of ANWR that are outside the 1002
area, and one township inside that area, all totaling approximately 92,160 acres.
However, all of the KIC lands are within the Refuge as a whole and hence are subject
to: 1) the restrictions on oil and gas development in § 1003 of ANILCA; and 2) under
§ 22(g) of ANCSA and § 1431(g) of ANILCA, to the laws and regulations governing
the Refuge.
Section 1431(o) of ANILCA, captioned “Future Option to Exchange, etc.,”
authorized the Arctic Slope Regional Corporation (ASRC), whose shareholders are
Inupiat Eskimos, to obtain subsurface rights beneath the KIC lands in ANWR upon
the occurrence of certain events. ASRC could obtain subsurface rights beneath lands
belonging to villages in the National Petroleum Reserve-Alaska or ANWR, if parts
of those two areas within a certain proximity to Native village lands were opened for
commercial oil and gas development within 40 years of the date of ANILCA. Under
this authority, ASRC would not have been authorized to obtain the subsurface
beneath the KIC lands in the Refuge until ANWR was opened for commercial
development. Furthermore, any oil and gas development of ASRC interests would
be subject to protective regulations “consistent with the regulations governing the
development of those lands with the Reserve or Range which have been opened for
purposes of development ....”
1983 Agreement. However, instead of proceeding at some future date with
an exchange under the §1431(o) authority, then Secretary of the Interior James G.
Watt on August 9, 1983 (four months after publishing the legal description of the
1002 area that excluded the KIC lands), entered into an exchange agreement (known
as the 1983 Agreement or the “Chandler Lake Agreement” – after lands acquired by
the United States in the Gates of the Arctic National Park) using the general exchange
authority of § 1302(h) of ANILCA. Under this Agreement, the United States
received the surface rights to certain lands and ASRC received the subsurface rights
beneath the KIC lands, but any oil and gas development of these lands was expressly
contingent on Congress authorizing such development.
5548 Fed. Reg. 16838, 16841, 16869 (April 19, 1983).
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Section 1431(o)(4) of ANILCA provides that the Secretary may promulgate
regulations regarding the subsurface estates acquired pursuant to that subsection to
protect the environmental values of the Reserve or Range consistent with regulations
governing the development of those lands within the Reserve or Range which have
been opened for purposes of development, including § 22(g) regulations. However,
that subsection of ANILCA did not apply to the ASRC exchange in ANWR since a
different exchange authority was utilized. Instead, the 1983 Agreement contained
considerable detail relating to exploration and environmental issues, thereby making
those features a matter of contract law. ASRC also agreed in the 1983 Agreement
that § 22(g) — and hence Refuge regulations — would apply to its lands, but with
significant additional terms.
Also as part of the Chandler Lake Agreement, ASRC was given the contractual
right to drill, within a certain window of time, up to three exploratory wells on the
KIC lands outside the 1002 area. One test well was drilled within the specified time,
but the results of that well have been kept confidential. However, full oil and gas
development of the ASRC lands was prohibited until and unless Congress opened the
Refuge, the ASRC lands, or both for such development.56 Conversely, if Congress
opens the Refuge, the Agreement provides that ASRC may proceed with development
of its subsurface interests.
The Barrow Gas Field Transfer Act. The Barrow Gas Field Transfer Act
of 198457 addresses several North Slope issues, primarily involving exchange
agreements involving the Point Barrow gas fields, including a 1984 agreement on that
subject. It also refers to the August 9, 1983 Agreement (the ASRC/ANWR
Agreement), stating in §5(d):
All of the lands, or interest [sic] therein, conveyed to and
received by Arctic Slope Regional Corporation pursuant to this
section of the ASRC Agreement and pursuant to the August 9,
1983 agreement between Arctic Slope Regional Corporation and
the United States of America shall, in addition to other applicable
authority, be deemed conveyed and received pursuant to
exchanges under section 22(f) of the Alaska Native Claims
Settlement Act, as amended (43 U.S.C. 1601, 1621(f).
The committee report accompanying this act states that one purpose of the act
is to “ratify certain land exchanges and other agreements ....”58 It also states that
lands received by ASRC are to be regarded as though they had been obtained by an
ANCSA exchange:
Subsection (d) provides that all lands or interests therein
conveyed to the Arctic Slope Regional Corporation pursuant to
this section or the Regional Corporation’s 1984 agreement and
56Provisions B-1 and B-2 at 5-6 of Appendix 2 of the 1983 Agreement.
57See P.L. 98-366, 98 Stat. 468, 471.
58H.R. Rep. 98-843 at 1 (1984).
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pursuant to the August 9, 1983 Agreement Between the Arctic
Slope Regional Corporation and the United States are to be
deemed conveyed and received pursuant to exchanges under
section 22(f) of the Alaska Native Claims Settlement Act, as
amended, in addition to other applicable authority. The purpose
of this subsection is to ensure that the lands and interests in land
received by Arctic Slope Regional Corporation in the two
referenced exchanges are treated as lands received under section
22(f) exchanges, thereby, for example resulting in the
applicability of subsection 21(c) and (d) [re taxation] and
subsection 23(j) [re interim conveyances and underselections] of
the Alaska Native Claims Settlement Act, as amended to the
lands and interests in land so received.59
The floor debates in both the House and Senate are very brief and focus almost
exclusively on the Barrow gas provisions and related exchange agreements.60
Arguably, if the exchange is made under §22(f) of ANCSA, the ASRC lands
received under the 1983 Agreement are subject to §22(g) constraints (those specifying
that Native lands in refuges remain subject to the laws and regulations governing the
refuge of which they are a part) as a matter of law, rather than being a matter of
contractual obligation.
Subsequently, the Department of the Interior began negotiations with several
other Native corporations and their oil company partners to develop other exchanges
for subsurface rights in ANWR. These actions raised the issue at the time of whether
such exchanges were valid and whether they would preempt the authority of Congress
to make the decision of whether to lease and develop the oil and gas resources of the
coastal plain of ANWR61 by presenting Congress with exchanges that might result in
pressure to open the Refuge. As a result, Congress addressed the issue in 1988.
1988 ANILCA Amendment. In 1988, Congress legislated to prevent any
more exchanges by amending the general exchange authority in ANILCA that had
been used as authority to complete the 1983 Agreement:
Nothing in this Act or any other provision of law shall be
construed as authorizing the Secretary to convey, by exchange
59Id., at 7.
60Rep. Seiberling describes the bill as “without controversy” and does not discuss the 1983
Agreement related to ANWR. 130 Cong. Rec. 16841 (June 18, 1984). Rep. Young states
that the bill would ratify agreements, but only discusses the gas field agreements. Id., at
16843. Similarly, discussion was brief on the Senate side and focused on the Barrow
provisions. Sen. Stevens stated that the bill had been extensively reviewed by the Congress,
the House and Senate hearings, and stated that the bill confirms that the lands received by
ASRC under the August 9, 1983 Agreement are to be treated as received under ANCSA. 130
Cong. Rec. 19738 (June 28, 1984).
61See, e.g. the GAO Report: GAO/RCED-88-179 (September, 1988), Consideration of
Proposed Alaska Land Exchanges Should Be Discontinued.”
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or otherwise, lands or interest in lands within the coastal plain of
the Arctic National Wildlife Refuge (other than land validly
selected prior to July 28, 1987), without prior approval by Act
of Congress.62
The House Report addressed the validity of such exchanges, linked exchanges
to the decision of whether to open the Refuge to oil and gas development, and
reiterated the control of Congress over whether the coastal plain would be opened for
oil and gas development. The Report states:
The committee believes that, under current law, the Secretary
of the Interior does not have authority to administratively
exchange lands within the coastal plain of the Arctic National
Wildlife Refuge, as defined in Section 1002(b) of ANILCA.
Congress clearly reserved to itself the sole prerogative to make
the decision as to whether ANWR would be opened to oil and
gas development and, if so, under what terms and conditions.
Section 1003 of ANILCA states:
Production of oil and gas from the Arctic National
Wildlife Refuge is prohibited and no leasing or other
development leading to production of oil and gas from
the range [sic] shall be undertaken until authorized by
an Act of Congress.
It is the Committee’s view that the 96th Congress did not
intend the Secretary’s general exchange authority under Section
1302(h) to apply to the coastal plain of ANWR.63
The Report goes on to discuss the fact that the Department continued to assert
that it had complete and unilateral authority to trade away oil and gas rights, to allow
exploratory drilling, and to waive the rights to bonus bids, rents and royalties without
Congressional approval. Furthermore, it noted that the Department had engaged in
“mega-trade” negotiations with six Alaska Native groups and their oil company
partners for exchanges similar to the ASRC exchange of 1983, and had conducted a
“conditional auction” for oil and gas rights to 73 tracts in the coastal plain of ANWR
Then the Report discussed the intent of the new provision:
Title II and section 201 are designed to preserve the status quo
and to permit, as ANILCA intended, Congress to decide the
future status of the coastal plain on the merits. Section 201
makes it clear that the “mega-trades” or any other exchanges, as
well as any other prospective conveyances involving lands or
interests in lands within the coastal plain may only be
implemented after Congressional review and after securing
62Pub.L. No. 100-395, 102 Stat. 979, 981, amending § 1302(h) of ANILCA; 16 U.S.C. §
3192(h)(2).
63H.R. Rep. No. 100-262, Part 1 at 7-8 (1987).
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legislative approval by an Act of Congress. However, this
section is not intended to effect [sic] lands validly selected prior
to July 28, 1987.64
This reiteration of Congress’ authority to make the decision regarding oil and gas
leasing in the coastal plain of ANWR is repeated on p. 12 of the Report: “The
Committee would note that the decision of whether to open the Arctic National
Wildlife Refuge for oil and gas development is a decision which Congress has
reserved for itself.”
The Senate Report repeats the language in the House report regarding the fact
that Congress reserved to itself the right to decide if and when oil and gas leasing
would be permitted in ANWR and that the new legislation “would insure that such a
congressional prerogative is preserved.”65
Subsequent legislative history (as in a later committee report commenting on a
previous enactment) expressing an interpretation of a previous statute is not given
much weight because, as the Supreme Court has put it, “[t]he views of a subsequent
Congress form a hazardous basis for inferring the intent of an earlier one.”66
However, the views of a later Congress incorporated into a later statute must be
interpreted and applied, and are given great weight in statutory construction.67 Still
other statutes may be premised on a particular interpretation of an earlier statute. If
so, the interpretation may be given effect, especially if a contrary interpretation would
render the amendments pointless or ineffectual.68
The 1988 amendment to ANILCA seems somewhere between the latter two
interpretive choices. The 1988 direction that no more lands could be conveyed in the
coastal plain without congressional approval is stated as being premised on the fact
that Congress reserved to itself, and reiterates the ANILCA authority, to make the
decision regarding oil and gas development of that area. Exchanges like the 1983 one
with ASRC were evidently regarded as predisposing the decision process, and hence
Congress stepped in to legislate that no further conveyances were to take place unless
and until Congress so authorized – in order to preserve its view of §1003 of
64Id., at 8-9. The Report states that the committee is aware that KIC, some individual
Natives, and ASRC “through a land exchange agreement with the Department” had selected
lands in the Refuge before July 28, 1987, and states that the Secretary may adjudicate the
validity of those land selections and convey lands to those parties “to the extent such
conveyances are otherwise lawful and proper.” Id., at 13.
65S. Rep. No. 100-302 at 3 (1988).
66Mackey v. Lanier Collection Agency & Serv., 486 U.S. 825, 840 (1988) (quoting United
States v. Price, 361 U.S. 304, 313 (1960).
67Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-381 (1969).
68Mount Sinai Hospital v. Weinberger, 517 F. 2d 329, 343 (5th Cir. 1975), quoted with
approval in Bell v. New Jersey, 461 u.S. 773, 785 n.12 (1983). See also Merrill Lynch,
Pierce, Fenner & Smith v. Curran, 456 U.S. 343, 382-387 (1982), relying on congressional
intent to preserve an implied private right of action as the reason for a “savings clause” on
court jurisdiction.
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ANILCA. This later enactment and the reasons for it arguably are entitled to weight
in interpreting whether any modification of the ANILCA reservation of authority for
Congress to decide the question of oil and gas development of the coastal plain has
occurred with respect to ASRC.
Final Selections. On March 17, 1993, lands were withdrawn by Public Land
Order 6959 to allow KIC to make its final selections to complete its four townships
in the Refuge.69 Pursuant to § 22(h)(2) of ANCSA and § 1410 of ANILCA, the
Order made more lands available than was KIC’s entitlement, thereby providing some
flexibility as to choices. This larger quantity of lands desired by KIC had been
identified initially in an agreement effective January 22, 1993, before the PLO was
issued. Those lands were withdrawn and, under the terms of the January agreement,
KIC was then to have filed a selection application and simultaneously submitted a
prioritization of land choices from which conveyances could be completed up to the
amount of the entitlement. However, BLM advises us that it appears that no final
prioritization list has yet been submitted, as of April 22, 2002. Therefore, the exact
location of the last of the KIC (and hence ASRC) lands is not yet known.
In addition to the KIC and ASRC Native lands, there are also individual Native
“allotments” within the coastal plain and elsewhere in the Refuge. Approval and
conveyance of some allotments have been completed; other lands have been applied
for, but may not be approved. BLM currently is compiling the exact locations,
acreage, and status of these allotments and applications. It appears, based on a
preliminary mapping, that allotments and applications for allotments are clustered
primarily along the coast and near Sadlerochit Spring, both of which are considered
vital wildlife areas. BLM reports that allotments range in size up to 160 acres each
and that approximately 9,797 acres have been conveyed, with an additional 1,719.66
acres approved but still pending.
If allotments are conveyed under the provisions of ANCSA, they are expressly
for the surface estate only. However, if a claimant qualified for and opted for a
conveyance under previous statutes, the status of the mineral estate of a particular
allotment would have to be checked. Nonmineral lands (in the sense of “hardrock”
minerals such as gold, silver, etc.) were not to be available for selection, and typically
the United States reserved any oil and gas.70
(B). Current bill provisions and issues.
(1). Final conveyances to KIC. Both bills have identical language in §6510
of H.R. 4 and § 503(h) of S. 388 that authorizes the conveyance of final land
selections to KIC. It will be recalled that congressional authorization to complete the
6958 Fed. Reg. 14323 (March 17, 1993).
7043 U.S.C. § 1617(a). BLM advises that all of the allotments are pursuant to the Act of
May 17, 1906, ch. 2469, 34 Stat. 197, amended August 2, 1956, ch. 891, 70 Stat. 954, in
which case they may be subject to restrictions on alienation. Oil and gas on all of these
allotments is reserved to the United States. Other allotments are listed as approved pursuant
to ANILCA; however, the status of the title of particular allotments and applications may not
be clear at this time.
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conveyances is required by the 1988 amendment to ANILCA. More than sufficient
lands for identification of selections were made available in PLO 6959, as identified
by KIC in the agreement effective January 22, 1993. (The bill provisions refer to
section 2 of the PLO as setting out the available lands, but the correct reference is
paragraph 1.) Neither bill directs that conveyance of the selected lands be in
accordance with the January 22, 1993 Agreement, nor requires a prioritization by a
date certain in order to clarify which lands will ultimately leave federal ownership.
Consequently, unless language were added to impose a timetable on the finalization
of selections, the final location of these lands could remain uncertain.
(2). Environmental constraints on Native lands. As discussed above,
both bills address oil development activities in the coastal plain/1002 area, and provide
some environmental controls. It is unclear to what extent the Native lands will be
subject to the same or similar controls – whether whatever constraints are placed on
the federal Refuge lands would also pertain to the Native lands within the Refuge, or,
if not, what other constraints on environmental effects and development facilities
might apply to the Native lands. These issues are vitally important to understanding
the possible overall effects of oil development on the Refuge.
In considering this question, the various Native property interests must be
considered separately: 1) the interests of KIC in the surface estate of lands, within the
coastal plain and the Refuge as a whole; 2) the interests of ASRC in the subsurface
(and related use of the surface), within the coastal plain and the Refuge; and 3)
individual allotments in the coastal plain and Refuge.
As discussed above, one section of KIC lands is in the 1002/coastal plain; three
sections are outside the coastal plain; all are within the Refuge as a whole.
(3). ASRC lands and the 1983 Agreement. Currently, ASRC has rights
to the subsurface beneath the KIC lands, both within and outside the coastal plain.
It is important to note that the 1983 Agreement and its appendices address oil
exploration and development on the ASRC subsurface estate and provide that its
terms will govern the development and oil production on those lands unless they are
superseded by statutory provisions. Appendix 2, part 9 of the Agreement states that
development and production activities undertaken on “ASRC lands” will be subject
to statutory constraints. Specifically ASRC development:
shall be in accordance with the substantive statutory and
regulatory requirements governing oil and gas exploration,
including exploratory drilling, and development and production
that are designed to protect the wildlife, its habitat, and the
environment of the coastal plain, or the ASRC Lands, or both.
(Emphasis added.)
Other provisions of the 1983 Agreement also pertain to environmental effects.
Appendix 1 provides that the grant of lands to ASRC is subject to:
1. the requirements of the second sentence of § 22(g) of ANCSA, (which
requires compliance with the regulations of the Refuge).
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6. the covenant that ASRC will use the lands “in conformance with the ‘Land
Use Stipulations” attached as Appendix 2.
7. the covenant that ASRC “shall not use those lands, or the surface of those
lands, in any manner that significantly adversely affects the fish and wildlife, their
habitats, or the environment of those lands or Arctic National Wildlife Refuge
lands ....”
Therefore, it appears that as a general matter, the environmental constraints of
the bills applicable to the coastal plain arguably would apply to development of all
ASRC lands, both within the coastal plain and outside it.71 The same standard — the
avoidance of significant adverse effects — is used in the 1983 Agreement and in both
bills.
However, absent express new statutory language that addresses the relationship
of the new legislation to the 1983 Agreement and to particular management and land
use considerations, issues may arise. Both bills currently speak in general terms on
environmental constraints, leaving much to be fleshed out by the Secretary of the
Interior in new leasing regulations for the Refuge. The 1983 Agreement contemplates
that subsequent legislation and regulations may supersede its provisions. Yet,
arguably, the current bills do not accomplish this, in that they postpone many
decisions and aspects of oil and gas development to possible coverage in the leasing
regulations that are to be developed. To whatever extent the congressional acts and
administrative regulations do not clearly supersede the 1983 Agreement, its terms will
govern oil development on the ASRC lands. And other provisions of the 1983
Agreement may still operate despite the general legislated environmental constraints
with respect to ASRC oil development.
For example, the 1983 Agreement qualifies its general statement that statutory
language on oil development in the coastal plain will supersede the Agreement, by
stating in Paragraph B.9 of Appendix 2 (pp. 28-29) that certain provisions in
Paragraph B.3(c) - (m) — that set out an approval process for a “plan of operations”
for oil development — will remain in effect.72 This provision may mean that Congress
would have to expressly address and change this plan approval process, or the terms
of the Agreement may still govern. The referenced Paragraph B.3(c)-(m) provisions
provide a special process for approval of a plan of operations for ASRC development
under which if the Regional Director of Fish and Wildlife Service and ASRC disagree
as to whether a part of a proposed plan would significantly adversely affect the
wildlife, habitat, or environment of the ASRC lands or Refuge lands or would
71See Paragraph 4, p. 10 of the Agreement that states that Appendix 1 applies to the lands to
be conveyed to ASRC, thereby incorporating by reference Paragraph 1 of Appendix 1 that
applies 22(g) to ASRC lands and Paragraph 6 of Appendix 1, which requires compliance with
the Land Use Stipulations of Appendix 2.
72The agreement refers to “such” plans. This could refer either to exploration plans in
Paragraph B.3, or it could refer to all plans — exploration or development — that are the
subject of Paragraph B.9. A reading of B.9 as a whole would seem to indicate that the latter
interpretation is more likely the correct one. Given the importance of this issue, Congress may
wish to clarify this point.
CRS-25
otherwise be inconsistent with any provision of the Agreement, ultimately (after some
prescribed exchanges of written points of view and negotiations) the United States
must obtain a court order restraining implementation of the plan of operations, or else
ASRC will have the right to implement the plan of operations as originally proposed
or as subsequently modified. In other words, the opinion of ASRC as to harm will
prevail unless the United States obtains the agreement of a court with its views in
every instance.
Should ASRC assert that this provision remains in effect even if the Director of
BLM, rather than the Regional Director of FWS is the responsible leasing official, this
language appears to impose a difficult burden on the United States to assert and
control adverse effects of leasing on Native lands. This burden, combined with the
fact that the current bills do not address the 1983 Agreement and which of its terms
are superseded, and do not contain specific environmental controls that would
supersede the provisions of the Agreement, may result in some Agreement provisions
that were intended as “state of the art” environmental constraints in 1983 becoming
less than desirable standards today, in light of technological changes since 1983. For
example, provisions in Appendix 2 of the Agreement speak to “reserve pits” and
ponds as means for the disposal of wastes on the surface of the Refuge, while current
practice is to reinject wastes underground, rather than using reserve pits. Other
provisions in the Agreement also address environmental considerations in ways that
might not be considered acceptable today. The Agreement specifically addresses, for
example, the use of explosives, aircraft, fires, disposal of gray water on the surface
of the Refuge, removal of water from streams, incineration, fuel pits, extraction of
sand and gravel, and the type and location of support facilities. Depending on the
specificity of the oil development regulations that the Secretary is to develop, some
of these provisions of the Agreement that are not expressly superseded may ultimately
function to permit pollution and the siting and use of facilities that might not be
permitted under current practices.
S. 388 as introduced provides in §503(d) that the title on ANWR leasing “shall
be the sole authority for leasing on the 1002 Area.” It is not clear how this statement
relates to the 1983 Agreement — whether it applies only to leasing of the federal
lands, or totally supersedes the 1983 Agreement with respect to oil development
activities on ASRC lands.73 If it does, then what constraints might apply to
development of the ASRC holdings in the coastal plain is unclear. If the 1983
Agreement does not apply, then arguably neither its stipulations, nor § 22(g) apply.
While § 503(h) of S. 388 mentions the 1983 Agreement with respect to conveyance
of the remainder of KIC and ASRC lands, it does not otherwise address the
Agreement or issues relating to the Native holdings.
Some bills in previous Congresses have specifically addressed oil development-
related activities on Native lands within the Refuge and expressly set out development
limitations and specifications, together with expedited judicial review of possible
Native claims for breach of contract or “takings” under the 5th Amendment of the
Constitution. See e.g., H.R. 3601 in the 100th Congress and H.R. 1320 in the 102d
73Section 503 of the bill refers to the 1983 Agreement, but only with reference to confirming
the subsurface rights ASRC is to take beneath lands that section directs be conveyed to KIC.
CRS-26
Congress, which limited port facilities and other development support activities and
directed the promulgation of Refuge-wide regulations within a specified time. While
both current bills repeat many of the provisions of bills from the 102d Congress that
relate to what should be covered in leasing regulations, they omit other provisions that
related to specific environmental constraints, development of the ASRC lands and
expedited review of Native claims.
(4). Section 22(g) constraints. Both the KIC and ASRC lands are currently
subject to § 22(g) of ANCSA, and hence to the laws and regulations governing
ANWR; the KIC lands by the terms of ANCSA, and ASRC lands by the terms of the
1983 Agreement and, arguably, the 1984 Barrow Gas Field Act. Beginning in 1973,
analysis of how § 22(g) might apply to Native lands in a refuge concluded that,
because the lands were privately-owned, separate regulations were appropriate: one
set of regulations should govern the public use of the public lands within a refuge and
separate regulations should govern what could be done by Natives on their lands. The
latter regulations should also reflect the fact that the Native lands had been conveyed
under a statute (ANCSA) to accomplish a settlement “in conformity with the real
economic and social needs of the Natives” and with their maximum participation.74
This interpretation – that separate regulations were appropriate – was confirmed
by certain aspects of ANILCA, notably language in § 103(c) which states that only
those lands within the boundaries of any conservation system
unit which are public lands (as such term is defined in this Act)
shall be deemed to be included as a portion of such unit. No
lands which, before, on, or after the date of enactment of this
Act, are conveyed to the State, to any Native Corporation, or to
any private party shall be subject to the regulations applicable
solely to public lands within such units ....
“Federal lands” is defined in §102(2) as lands the title to which is in the United
States, and “public lands”is defined in §102(3) as federal lands, except lands selected
by a Native Corporation but not yet conveyed, or lands referred to in section 19(b)
of ANCSA (certain entitlements of Village Corporations). Therefore, it appears that
special regulations applicable to Native lands in refuges are appropriate to implement
22(g).75
Before the development of separate compatibility regulations for lands subject
to § 22(g), several exchanges, including the ASRC exchange, had contained land-use
stipulations to attempt to clarify what could and could not be done on the Native
lands. Because § 22(g) requires compliance with the laws and regulations pertaining
to the particular refuge of which the Native lands are a part, any law enacted to lease
ANWR could impose some constraints on the Native lands and special regulations
governing those lands might also be developed.
74Opinion to the Director, Bureau of Sport Fisheries and Wildlife from the Acting Associate
Solicitor for Conservation and Wildlife, September 11, 1973.
75See Memorandum from Attorney, Office of the Regional Solicitor, Alaska Region to the
Regional Director, Alaska Region, Fish and Wildlife Service, February 17, 1983.
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Current 43 C.F.R. § 2650.4-6 states that regulations governing the use and
development of refuge lands conveyed pursuant to § 14 of ANCSA “shall permit such
uses that will not materially impair the values for which the refuge was established.”
This appears to be a standard that would allow a considerable range of activities.
The new compatibility regulations address §22(g) lands and state that
compatibility determinations for those lands are to be made in compliance with the
requirements stated in the regulations, several of which are relevant to this report.
Notably, the regulations state, for example, that only the effects on refuge lands that
result from a use made on Native lands, not the use on the Native lands itself, will be
considered, and that the Refuge management plan will not include the Native lands:
(1)(i) Refuge managers will work with 22(g) landowners in
implementation of these regulations. The landowners should
contact the Refuge Manager in advance of initiating a use and
request a compatibility determination. After a compatibility
determination is requested, refuge managers have no longer than
ninety (90) days to complete the compatibility determination and
notify the landowner of the finding by providing a copy of the
compatibility determination or to inform the landowner of the
specific reasons for delay. If a refuge manager believes that a
finding of not compatible is likely, the Refuge Manager will
notify the landowner prior to rendering a decision to encourage
dialog on how the proposed use might be modified to be
compatible.
(ii) Refuge managers will allow all uses proposed by 22(g)
landowners when the Refuge Manager determines the use to be
compatible with refuge purposes.
(iii) Compatibility determinations will include only evaluations
of how the proposed use would affect the ability of the refuge to
meet its mandated purposes. The National Wildlife Refuge
System mission will not be considered in the evaluation. Refuge
purposes will include both pre-ANILCA purposes and those
established by ANILCA, so long as they do not conflict. If
conflicts arise, ANILCA purposes will take precedence.
(iv) A determination that a use is not compatible may be
appealed by the landowner to the Regional Director. The appeal
must be submitted in writing within forty-five(45) days of receipt
of the determination. The appeals process provided for in 50
C.F.R. 36.41(i)(3) through (5) will apply.
(v) Compatibility determinations for proposed uses of 22(g)
lands will only evaluate the effects of the use on the adjacent
refuge lands, and the ability of that refuge to achieve its
purposes, not on the effects of the proposed use to (sic) the
22(g) lands.
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(vi) Compatibility determinations for 22(g) lands that a use is
compatible are not subject to re-evaluation unless the use
changes significantly, significant new information is made
available that could affect the compatibility determination, or if
requested by the landowner.
(vii) Refuge comprehensive conservation plans will not include
22(g) lands and compatibility determinations affecting such lands
will not be automatically re-evaluated when the plans are
routinely updated.
(viii) Refuge special use permits will not be required for
compatible uses of 22(g) lands. Special conditions necessary to
ensure a proposed use is compatible may be included in the
compatibility determination and must be complied with for the
use to be considered compatible.
. . . . .
(g) Except for uses specifically authorized for a period longer
than 10 years (such as rights-of-ways), we will re-evaluate
compatibility determinations for all existing uses other than
wildlife-dependent recreational uses when conditions under
which the use is permitted change significantly, or if there is
significant new information regarding the effects of the use, or at
least every 10 years, whichever is earlier. In addition, a refuge
manager always may re-evaluate the compatability (sic) of a use
at any time.
(h) For uses in existence on November 17, 2000 that were
specifically authorized for a period longer than 10 years (such as
rights-of-ways), our compatibility re-evaluation will examine
compliance with the terms and conditions of the authorization,
not the authorization itself. We will frequently monitor and
review the activity to ensure that the permittee carries out all
permit terms and conditions. However, the Service will request
modifications to the terms and conditions of these permits from
the permittee if the Service determines that such changes are
necessary to ensure that the use remains compatible. After
November 17, 2000 no uses will be permitted or re-authorized,
for a period longer than 10 years, unless the terms and conditions
for such long-term permits specifically allow for modifications to
the terms and conditions, if necessary to ensure compatibility.
We will make a new compatibility determination prior to
extending or renewing such long-term uses at the expiration of
the authorization. When we prepare a compatibility
determination for re-authorization of an existing right-of-way,
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we will base our analysis on the existing conditions with the use
in place, not from a pre-use perspective.76
These regulations, and the 1983 Agreement, could allow a considerable range
of development on the KIC and ASRC lands, unless superseded or elaborated on by
new statutory and regulatory leasing provisions. Both H.R. 4 (§6503(c)) and S. 388
(§503(c)) provide that oil and gas leasing in the Refuge is found to be compatible with
the purposes of the Refuge and no further findings or decisions are required to
implement this determination. The exact effect of this statutory finding on the scope
of possible regulation under §22(g) is not clear.
(5). Allotments. Allotments, it will be recalled, are lands the surface of which
are owned by individuals. In most, if not all instances, the United States retained the
oil and gas rights beneath allotments, but the surface is in non-federal ownership and
can be developed. Allotments within the Refuge are not subject to the requirement
of §22(g) of ANCSA that uses on Native lands chosen under that Act comply with
the regulations of the Refuge.
Therefore, the uses that an allottee might make of these lands or permit to be
made of these lands could have significant impacts on the Refuge — if oil
development were allowed, allotments could be used for staging areas, port
development, or refuse storage. Therefore, the size and location of allotments is
relevant to assessing the possible overall effects of oil development on the coastal
plain and the Refuge. As noted above, some patented allotments are located on the
coast and in the Sadlerochit Spring area. BLM advises that 9,797 allotment acres
have been conveyed in the Refuge and another 1,720 acres have been approved.
Other statutes relating to the management of environmentally sensitive federal
conservation units have provided for regulation of valid existing rights and inholdings.
For example, the Wilderness Act authorizes mineral leasing under “such reasonable
stipulations as may be prescribed by the Secretary of Agriculture for the protection
of the wilderness character of the land consistent with the use of the land for the
purposes for which they are leased ....”77 Congress also subjected existing mining
rights in national parks to “such regulations prescribed by the Secretary of the Interior
as he deems necessary or desirable for the preservation and management of those
areas.”78
Neither bill addresses individual allotments within the Refuge — e.g., by
providing for regulated access and use, or for buying them out, etc.
(6). Timing. Both bills would repeal the § 1003 prohibition against oil and gas
development in the Refuge, thereby allowing such development. Neither bill currently
contains any time limitations on activities on Native lands leading to development or
production, even though leasing regulations for the federal lands are not to be
7650 C.F.R. § 25.21 at 65 Fed. Reg. 62481-62482.
7716 U.S.C. § 1133(d).
7816 U.S.C. § 1902.
CRS-30
finalized for either 14 or 15 months. As discussed above, neither bill expressly
addresses the provisions of the 1983 Agreement and which of its provisions are
expressly superseded. Therefore, it is not clear that ASRC must wait until the federal
leasing regulations are completed before moving forward in accordance with the
terms of the 1983 Agreement. It will be recalled that an exploratory well was already
drilled on KIC lands and some oil companies could be ready to move forward
immediately on the Native lands. Express provisions addressing this issue of timing
could ensure a fair start under the same rules.
III. Access, Rights of Way, and Exports.
Title XI of ANILCA provides for rights of way across federal conservation areas
for transportation and utility systems. Section 6509(a) of H.R. 4 provides that Title
XI of ANILCA “shall not apply to the issuance by the Secretary under section 28 of
the Mineral Leasing Act ... of rights-of-way and easements across the Coastal Plain
for the transportation of oil and gas.” Because the House bill also states that leasing
is to be under the MLA, the intent appears to be that rights of way on the Coastal
Plain be issued under the MLA.
However, subsection (b) of § 6509 requires that terms and conditions on rights
of way or easements to transport oil and gas ensure that such transportation does not
result in a significant adverse effect on the fish and wildlife, subsistence resources,
their habitat, and the environment of the Coastal Plain. Current 30 U.S.C. § 185(h)
requires that the Secretary impose stipulations on the right of way that are “designed
to control or prevent (i) damage to the environment (including damage to fish and
wildlife habitat), ....” This standard in current law appears to be more protective than
that in the House language.
Section 512 of S. 388 directs that “[n]otwithstanding Title XI of ANILCA, the
Secretary is authorized and directed to grant in accordance with parts of § 28 of the
MLA rights of way and easement across the 1002 Area for the transportation of oil
and gas — again with terms and conditions to avoid significant adverse effects. The
same comments can be made about the Senate bill language with respect to the
environmental standard, as were made regarding the House language. The leasing
regulations required by § 504 of the title are to include provisions on rights of way
and easements.
The parts of § 28 of the MLA that the Senate bill states are applicable to rights
of way in the Coastal Plain are subsections (c) through(t) and (v) through (y). This
choice eliminates subsection (u) that generally prohibits the export of domestically
produced oil transported by pipeline over rights of way granted under the MLA unless
the President determines it is in the national interest to do so. Subsection (s), which
is retained, reverses this policy posture on oil exports with respect to oil transported
by pipeline through the Trans-Alaska Pipeline System (TAPS). Such oil can be
exported unless the President determines that export is not in the national interest.
It has generally been assumed that oil from ANWR would be piped over to the TAPS
for transport south to the port of Valdez. If so, then under the Senate bill, ANWR
oil could be exported unless the procedures set out in 30 U.S.C. § 185(s) are
complied with. Section 6506(a)(8) of H.R. 4 would direct that leases prohibit the
export of oil produced under a lease.
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The rights of way language in the House bill addresses only the transportation
of oil and gas by pipeline. However, any use of the surface of the federal lands is a
“right of way,” not just those uses for the transportation of oil and gas. The areas
occupied by drilling pads or other oil development structures, for example, would
require a right of way or easement, yet the bill does not address these other situations
or specify which other law is to govern. Although the House bill provides that leasing
is to be under the MLA, the MLA provisions on rights of way only address pipelines.
As discussed in the first section of this report, ambiguities remain as to which agency
would otherwise be the managing/permitting authority and with what scope of
authority, hence it is not clear under the House bill which laws and regulations would
pertain to non-pipeline rights of ways used in connection with leasing activities. Title
XI of ANILCA provides a process for obtaining rights of way for transportation and
utility systems in federal conservation areas in Alaska (which term includes refuges),
and the Refuge Administration Act provides at 16 U.S.C. § 668dd(d)(1)(B) that the
Secretary (acting through the FWS) may grant easements across or upon refuge lands.
Whether this provision would come into play depends again on how the management
division between BLM and FWS is interpreted.
Neither bill expressly addresses access to the Native inholdings in the Refuge.
As discussed, there are individual allotments scattered in the Refuge that might be
developed once the Refuge is open to oil and gas development. Under § 1110(b) of
ANILCA, notwithstanding any other law, the Secretary is to grant access rights to the
owner or occupier of inholdings in conservation system units.79 The access rights are
to be:
as may be necessary to assure adequate and feasible access for
economic and other purposes to the concerned land .... Such
rights shall be subject to reasonable regulations issued by the
Secretary to protect the natural and other values of such lands.80
As noted, the Refuge Administration Act provides that the Secretary (acting
through the FWS in that instance) may provide permit or grant easements across or
upon areas within the Refuge System, but because of the “notwithstanding” language
in the ANILCA access provision, arguably this statute would not apply to access
easements.81
79Under § 1323 of ANILCA, (16 U.S.C. § 3210), the Secretary of the Interior is to provide
access to nonfederally owned land surrounded by national forests or public lands managed
under the statute that usually governs BLM lands — the Federal Land Policy Management
Act (FLPMA). However, because BLM would be administering leasing in the Refuge under
the current bill proposals, rather than managing the Refuge lands under FLPMA, this
ANILCA access provision appears not to apply.
8016 U.S.C. § 3170(b).
81Congress has at times regulated access to inholdings in other conservation areas. For
example, under 16 U.S.C. § 1134(b), access to inholdings in designated wilderness areas is
allowed “by reasonable regulations consistent with the preservation of the area as wilderness,
... by means which have been or are customarily enjoyed with respect to other such areas
similarly situated.”
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IV. Compliance with NEPA.
Some observers question whether the existing final legislative environmental
impact statement (FLEIS), prepared in 1987 to comply with the National
Environmental Policy Act (NEPA), is adequate to support development now, or
whether an updated or new EIS should be prepared. A court in a declaratory
judgment action in 199182 held that the DOI should have prepared a Supplemental
Environmental Impact Statement (SEIS) at that time to encompass new information
about the 1002 area in connection with the Department’s recommendation that
Congress legislate to permit development. Therefore, it seems clear that either an
SEIS or a new EIS would have to be prepared before development, unless Congress
changes this requirement. Both Senate and House bills address the issue of the EIS
and future application of NEPA.
Section 505 of S. 388 states that the Congress finds the 1987 EIS adequate to
satisfy the legal and procedural requirements of [NEPA] with respect to the actions
authorized to be taken by the Secretary of the Interior in developing and promulgating
the regulations for the establishment of the leasing program, to conduct the first and
subsequent lease sales, and to grant rights-of-way and easements to carry out the title.
This language appears to eliminate the need to redo or update an EIS for the leasing
program and regulations. Yet, at the same time, under § 503(a), the Secretary is
directed to impose terms and conditions on leases to ensure that oil exploration and
development in the 1002 area will result in no significant adverse effect on fish and
wildlife, their habitat, subsistence resources, and the environment. If knowledge of
environmental conditions has changed since 1987, developing lease terms and
conditions adequate to avoid significant adverse effects might be difficult without
more current studies. The bill language does not prohibit completion of such studies;
it eliminates any legal requirement to do so for lease sales and with respect to grants
of rights of way and easements. For example, even as to the granting of rights of way
regarding which NEPA documents need not be prepared, the Secretary, under § 512
of S. 388 is to “impose such terms and conditions as may be necessary so as not to
result in a significant adverse effect on the fish and wildlife, subsistence resources,
their habitat, and the environment of the 1002 area.” However, it could be difficult
to develop terms and conditions for particular rights of way without the benefit of
site-specific studies of the environmental effects of various alternatives.
It is not clear whether the necessity to prepare NEPA documents for decisions
other than the issuance of leasing regulations, lease sales, or grants of rights of way
is eliminated. (For example, are new terms and conditions for leases to be viewed as
a part of “lease sale?” Some level of NEPA documents may still be required for other
types of decisions and for consideration of site specific impacts of particular decisions.
Under current NEPA regulations, an agency should prepare an Environmental
Assessment to determine if an EIS is necessary, or merely to guide agency decisions.83
Section 6503(c)(2) of H.R. 4 deems the 1987 EIS adequate with respect to
actions authorized to be taken by the Secretary to develop and promulgate the
82 NRDC v. Lujan, 768 F. Supp. 870 (D.D.C. 1991)
8340 C.F.R. Part 1500.
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regulations for the establishment of a leasing program. Yet § 6503(c)(3) requires the
Secretary to prepare a full EIS with respect to other actions authorized by the title.
This is noteworthy because only the smaller document, an environmental assessment,
might normally be sufficient, depending on the magnitude of the action involved. The
section goes on to say that the Secretary is to identify only a preferred action for
leasing and a single alternative and analyze only those two choices, and to consider
public comment only on the preferred alternative. Public comments must be
submitted within 20 days of publication of the analysis. The first analysis on the first
lease sale is to be completed within 18 months of enactment. Compliance with
paragraph (3) is stated as satisfying all requirements for consideration and analysis of
environmental effects. However, paragraph (3) both directs the preparation of an EIS
for all actions authorized by the title, yet also speaks as though it is only meant to
address proposals for lease sales, so the intended import is not clear.
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V. Judicial Review.
The current bills contemplate prompt action to put a leasing program in place.
Toward that end, both S. 388 and H.R. 4 have a section on expedited judicial review.
Section 511 of the Senate bill and § 6508 of H.R. 4 are alike in several respects; they
both require that judicial review be sought within 90 days from the date of the action
being challenged or the date the complainant knew or reasonably should have known
of the grounds for the complaint. Section 6508 (a)(1) and (a)(2) as currently written
contradict each other in that one states that suits challenging any action of the
Secretary under the title must be filed in the appropriate district court of the United
States [subsection (a)(1)] and in the United States Court of Appeals for the District
of Columbia [subsection (a)(2)]. Section 511 of the Senate bill provides for suits
generally to be filed in any appropriate district court of the United States except that
a complaint seeking judicial review of an action of the Secretary in promulgating
regulations under the Act may only be filed in the United States Court of Appeals for
the District of Columbia. Possibly this same distinction between the two courts is
what was intended in the House bill.
Both bills provide that actions of the Secretary that could have been reviewed
under the section on judicial review may not be reviewed as part of a civil or criminal
enforcement proceeding.
In addition, H.R. 4 also limits the scope of review by stating that review of a
Secretarial decision to conduct a lease sale, including the environmental analysis
thereof, shall be limited to whether the Secretary complied with the terms of Division
F of the leasing statute and shall be based upon the administrative record of that
decision. Furthermore, under §6508(a)(3), the Secretary’s identification of a
preferred course of leasing action and the Secretary’s analysis of environmental effects
is “presumed to be correct unless shown otherwise by clear and convincing evidence
to the contrary.” The requirement of clear and convincing evidence in this context
differs from the usual standards for proof and may be confusing,84 but appears to be
intended to make overturning a decision difficult.
VI. Disposition of Leasing Revenues.
Another issue that has arisen during debates over leasing in the ANWR is that
of disposition of possible revenues — whether Congress may validly provide for a
disposition of revenues other than the 90/10 percent split mentioned in the Alaska
Statehood Act.
Under § 35 of the Mineral Leasing Act (MLA),85 an act that applies to the
leasing of oil and gas and certain other minerals from federal public lands, certain
western states receive directly 50% of revenues. An additional 40% goes to those
states indirectly through the construction and maintenance of irrigation projects under
the Reclamation Act of 1902. These percentages previously were 37 ½% and 52 ½%
84See Charles H. Koch, ADMINISTRATIVE LAW AND PRACTICE, § 10.8 (2d ed. 1997).
85Act of February 25, 1920, ch. 85, 41 Stat. 450, 30 U.S.C. §191.
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respectively. Because the territory of Alaska did not benefit from the Reclamation
Act, it initially received only a 37 ½% share of federal leasing revenues. Before
enactment of the Alaska Statehood Act, Congress amended the MLA to provide that
the territory of Alaska would receive an additional 52 ½% share, thereby putting
Alaska on the same footing as the other states, receiving a total of 90% of revenues
from leasing under the MLA.86 Section 28(b) of the Alaska Statehood Act again
amended the MLA to change the references from the territory of Alaska to State of
Alaska.87
Section 317 of the Federal Land Policy Management Act of 1976 again amended
the revenues section of MLA to direct payment of 90% to Alaska, rather than the
separate percentages previously stated.88 The committee report accompanying the
1976 change states, under a heading regarding changes to distribution of revenues
from MLA operations, that the action was intended to clarify that Alaska was to
continue to receive 90% of the mineral revenues taken in from lands in Alaska.89
Alaska has asserted that the 90% total referenced in the Statehood Act cannot
be changed and must always be paid to the state because the Statehood Act is a
compact between the prospective state and the federal government. Others assert that
the Statehood Act provision was a technical one, meant to recognize that Alaska
should receive a share comparable to that of other states sharing revenues under the
MLA, but does not preclude the Congress from changing the MLA or at times making
special provision for leasing certain areas under a different regimen.
Alaska sued in the U.S. Court of Federal Claims, asserting that because the
United States had an obligation under the Statehood Act both to maximize mineral
leasing in Alaska and to always pay a 90 % share of gross receipts to Alaska, the
United States had either breached the contract established by the Statehood Act, or
“taken” property of Alaska by withdrawing some lands in Alaska from leasing
(notably ANWR), and by deducting administrative costs prior to the disbursement of
the 90% revenues to the State. The court found that the Statehood Act and the
previous statute providing the territory of Alaska with the same shares as the other
states “simply plugged [Alaska] into the MLA, along with the other States.”90
Therefore, Congress could amend the MLA, e.g., to provide a different way of
calculating receipts, and the changes would lawfully pertain to Alaska. Furthermore,
the court concluded that the United States did not promise in the Statehood Act to
make federal mineral lands productive of royalty revenues for the State, and that the
86P.L. 85-88, 71 Stat. 282 (1957). 37 ½ % was to be spent for the construction and
maintenance of public roads or for the support of public schools or other public educational
institutions as the legislature of the territory may direct. The 52 ½ % was to be paid to the
territory to be disposed of as the legislature directed.
87P.L. 85-508, 71 Stat. 339, 351.
88P.L. 94-579, 90 Stat. 2743, 2770-2771.
89H.R. Rep. No. 94-1724 at 62 (1976).
90Alaska v. United States, 35 Fed. Cl. 685, 701 (1996).
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United States therefore retained discretion over leasing decisions.91 Because of these
findings, the court also granted the government’s motion for summary judgment on
the takings claim. Although this case was in the context of the power of the United
States to pay administrative costs before dividing MLA revenues with Alaska,
arguably the same analysis of the provision in question would apply to a direct
challenge to the authority of Congress to change the revenue shares under a particular
statutory leasing regime as opposed to paying 90% as stated in the Statehood Act.
If the Statehood Act simply means that Alaska will be treated like other states
under the MLA, the question may be asked whether Congress may legislate specially
as to ANWR and prescribe different revenue-sharing provisions in that particular
leasing context. Congress has directed a different split in the past, e.g., with respect
the National Petroleum Reserves, in which situation all of the revenues go into the
federal Treasury,92 except for the National Petroleum Reserve in Alaska, in which
instance the revenue sharing is 50/50.93 Therefore, arguably Congress has flexibility
regarding revenue sharing in special legislation regarding oil and gas leasing in the
Refuge. Absent new provisions, revenues might either be divided as currently
provided under the MLA — if leasing in ANWR is under that statute — or go to the
U.S. Treasury as miscellaneous receipts under 31 U.S.C. § 3302. Issues may remain,
however, because of the wording of the current bills.
Section 6512 of H.R. 4 states that notwithstanding § 6504 of the bill (which
addresses lease sale procedures), the Mineral Leasing Act, or “any other law,” 50
percent of all “adjusted” (meaning, the bill states, adjusted for previous overpayments
or refunds, etc.) bonus, rental, and royalty revenues from the oil and gas leasing and
operations authorized by the title is to be paid to Alaska. Then a new Fund is created
to spend the remaining share of bonus revenues and a second new Fund is created to
spend the remaining share of rent and royalty revenues.
This language presents several issues. First, under § 6503(a), the Secretary is
to establish and implement a leasing program “under the Mineral Leasing Act,” yet
§ 6512, notwithstanding the Mineral Leasing Act, directs a revenue-sharing program
different from that in that Act. Possibly the § 6503(a) language was included to
ensure that BLM not the FWS would administer the ANWR leasing program.
However, establishing the ANWR leasing program under the Mineral Leasing Act,
as opposed to a new, entirely separate statutory program, while also requiring a
revenue split different from that pledged to Alaska in its Statehood Act regarding
revenues received from leasing under the Mineral Leasing Act, arguably could raise
new questions as to the validity of this approach. If a court were to find the
alternative disposition of revenues invalid, then quite possibly 90% of the revenues
could go to Alaska and 10% to the federal Treasury – with no funds applied to
conservation purposes or for renewable energy research.
91Id., at 706.
9210 U.S.C. § 7433.
93P.L. 96-514, 94 Stat. 2964.
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Also, under § 6512, fifty percent of revenues from bonus payments for ANWR
leases is to be deposited into the Renewable Energy Technology Investment Fund.
Under § 6512(c)(2), fifty percent of revenues from rents and royalty payments from
ANWR leases is to be deposited into the “Royalties Conservation Fund. It is not
stated whether the base for revenue sharing is to be gross or net receipts, an issue that
has been litigated in the past.
However, § 6511 of the bill provides for up to $10,000,000 of the “amounts
received by the United States” as revenues derived from rents, bonuses, and royalties
to go into a new fund to alleviate coastal impacts. It is not clear how this
$10,000,000 is to relate to the 50% share of the United States that is to go into the
other two new Funds. Perhaps, the $10,000,000 comes off the top and the remainder
is then divided 50% to Alaska and 50% into the other two Funds, or perhaps this is
an inadvertent mistake that will be resolved.
Under § 514 of S. 388, “all revenues received” by the federal government from
competitive bids, sales, bonuses, royalties, rents, fees, or interest are to be deposited
into the Treasury, then Alaska’s share is to be paid and the Secretary of the Treasury
is to “deposit the balance of all such revenues as miscellaneous receipts in the
Treasury.” However, the Secretary is directed to deposit amounts received as bonus
bids into a special fund known as the Renewable Energy Research and Development
Fund. It is not clear whether bonus bids go into this Fund before the state share is
taken out or afterwards, or how the amount received as bonus bids is to be earmarked
during the process.
Under §514(a) of S. 388, Alaska is to receive the same percentage as paid for
exploration of the National Petroleum Reserve – Alaska under P.L.. 96-514, which
is 50%.
VII. Proposed Senate Amendments on ANWR.
Senate Amendment 3132. Proposed Senate Amendment (S.Amdt.) 3132,
introduced by Sen. Murkowski and others, was patterned closely on the language of
H.R. 4 as passed by the House, but with some differences, as discussed below. A
second degree amendment, 3133, was offered by Sen Stevens to the Murkowski
amendment. Neither amendment was voted on because motions to invoke cloture
failed with respect to both amendments. The motion relating to S.Amdt. 3133 failed
by a vote of 36 in favor to 64 against and this amendment was withdrawn.94 The
cloture motion on S.Amdt. 3132 failed by a vote of 46 in favor, to 54 against95 and
this motion is still pending.96 The amendments are discussed here as background to
any additional ANWR-related issues that might arise.
The comments on H.R. 4 discussed above pertain to S.Amdt. 3132, except as
otherwise noted in light of differences in S.Amdt. 3132. The leasing provisions would
94148 Cong. Rec. S2,890 (daily ed. April 18, 2002).
95Id.
96Id.,at D353.
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have taken effect upon a determination and certification by the President that
development of the Coastal Plain is in the national economic and security interests of
the United States. This determination and certification would have been in the sole
discretion of the President and are not reviewable.
The coastal plain would have been defined by a reference to its legal description
in appendix I to part 37 of title 50 C.F.R., as well as to the August, 1980 map.
A requirement to consult with representatives of Kaktovik City and Inupiat
Corporation was added.
Exports of ANWR oil to Israel were allowed.
The provisions for judicial review would have been changed to provide exclusive
jurisdiction in the United States Court of Appeals for the District of Columbia Circuit
to hear challenges to the validity of any final order or action (including a failure to act)
of any federal agency or officer under the title; the constitutionality of any provision
or decision; or the adequacy of any EIS. Claims arising under the title would have
had to have been brought no later than 60 days after the decision or action giving rise
to the claim and the Court of Appeals was directed to provide expedited
consideration. Review of a decision of the Secretary to conduct a lease sale, including
the environmental analysis thereof was limited to whether the Secretary complied with
the terms of the title and would have been based on the administrative record, and
upheld unless the court found there was no rational basis for the Secretary’s action.
(This was a change from the new standard set out in H.R. 4.) It is not clear whether
any other challenges might have been possible to bring or whether they would have
been heard by the district court.
The reference to PLO 6959 was corrected to read paragraph 1.
A Coastal Plain Local Government Impact Aid Assistance Fund would have been
established that renamed a Fund established in H.R. 4, but funded it differently. This
S.Amdt. 3132 Fund was financed only from a share of the bonus bids, as opposed to
coming from the bonus bids, rents, and royalties under H.R. 4. However, under
S.Amdt. 3132, the Fund would have been permanently appropriated and the
$10,000,000 cap in H.R. 4 would have been eliminated.
Revenues would have been allocated differently under S.Amdt. 3132. Bonus
bids would have been allocated as follows: 50% to Alaska; 1% to the Coastal Plain
Local Government Impact Aid Assistance Fund; and $10 million to the Secretary of
Energy to be used to fill the Strategic Petroleum Reserve. The remainder of the
balance of bonus bids was divided 50% to the Renewable Energy Technology
Investment Fund and 50% into the Habitat Conservation and Federal Maintenance
and Improvements Backlog Fund. These Funds are similar to ones in H.R. 4, but the
last named Fund in S.Amdt. 3132 was to be permanently appropriated and to be used
for some new uses that would have benefitted other federal lands, such as to
“eliminate maintenance and improvement backlogs on Federal lands;” “to restore and
protect uplands, wetlands, and coastal habitat;” and to provide public access and
necessary facilities for visitor accommodations. Requirements to consult and
coordinate with other federal agencies (similar to those required in H.R. 4 and
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S.Amdt. 3132 with respect to the Renewable Energy Technology Investment Fund)
would have been added in connection with the use of this latter Fund.
Rents and royalties (as opposed to bonus bids) under S.Amdt. 3132 would have
been divided 50/50 between the State of Alaska and the U.S. Treasury as
miscellaneous receipts.
Payments to Alaska were to be made quarterly, rather than semiannually as in
H.R. 4.
Additional lands would have been added to the Mollie Beattie Wilderness area
within the Refuge.
Senate Amendment 3133. Sen. Stevens proposed S.Amdt. 3133 to modify
S.Amdt. 3132 in several respects.
The first lease sale would have been conducted within 8 months of enactment,
rather than within 22 months as stated in H.R. 4 and S.Amdt. 3132.
The judicial review provisions would have been changed to be in accordance
with §203(c), (d), and (e) of Public Law 93-153. These provisions are part of the
Trans-Alaska Pipeline Act and authorize expedited judicial review, but also govern
rights of way and leases, authorize waiver of any procedural requirements of law or
regulations the relevant officials deem desirable to waive, and state that actions
related to the Pipeline shall be taken without further action under NEPA. How these
provisions would have related to the rest of the ANWR title is not clear. The
provisions would have limited judicial review only to constitutional claims, claims
alleging the invalidity of the section, or claims that an official acted without authority.
Revenues would have been allocated differently under S.Amdt. 3133 in that
moneys from bonus bids would go 50% to Alaska; 1% to the Coastal Plain Local
Government Impact Aid Assistance Fund; $10 million to the Secretary of Energy to
fill the Strategic Petroleum Reserve; and the remainder of the bonus bids balance
would have been deposited into the Conservation, Jobs and Steel Reinvestment Trust
Fund. Revenues from rents and royalties would be split 50% to Alaska and 50% into
the Conservation, Jobs, and Steel Reinvestment Trust Fund.
Payments to Alaska would have been transferred on the 15th of each month,
without further appropriation.
The Conservation, Jobs, and Steel Reinvestment Trust Fund would have been
funded with phased in amounts from bonus bids as set out in new §1914, and from
rents and royalties from ANWR leasing for 30 years following production. Some of
the bonus bid moneys into this Fund would have gone to conservation activities and
renewable energy purposes similar to those set out in S.Amdt. 3132, and for “other
related authorized programs within the jurisdiction of the House and Senate
Committees on Appropriations.” Other parts of the bonus bids were to be used by
the Secretary of Commerce to modernize United States steel production and to
finance other industry and trade related activities. Also, the Secretary of Labor could
have used some of these funds for various job training and worker programs.
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Funds from rents, royalties, and payments for the first 30 years of production
would have gone into the Fund established by §401 of the Surface Mining Control
and Reclamation Act (the Abandoned Mine Reclamation Fund for reclaiming lands
damaged by coal mining), to be permanently appropriated to cover any shortfall of
funds under the Combined Fund.
Provision was made for surplus funds above the amounts allocated, and for the
President to request reallocation of amounts through appropriations acts.
The Secretary of State was authorized to enter into agreements with foreign
countries to allow American workers to work on projects abroad that will increase
production and transportation of domestic energy resources and reduce American
reliance on foreign oil and natural gas.
A Steel Industry Retiree Benefits Protection program would have been
established, funded from bonus bids under §1914(c). Under this program, the United
States would have assumed liability for steel industry retiree benefits “subject to
amounts available in the Trust Fund and additional funds made available in
appropriation acts.”