Order Code RL31115
Report for Congress
Received through the CRS Web
Legal Issues Related to Proposed
Drilling for Oil and Gas in the
Arctic National Wildlife Refuge (ANWR)
Updated March 18, 2003
Pamela Baldwin
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Legal Issues Related to Proposed Drilling for Oil and
Gas in the Arctic National Wildlife Refuge (ANWR)
Summary
Congress is considering whether to permit drilling for oil and gas in the coastal
plain of the Arctic National Wildlife Refuge (ANWR), Alaska, to designate the area
as wilderness, or to retain the status quo. This area is rich in wildlife and wilderness
values, but may also contain significant oil and gas deposits. Efforts were made in
the 107th to authorize oil and gas leasing in the coastal plain, or to designate the area
as wilderness, but none passed. In the 108th Congress, H.R. 39 would authorize
leasing in the Refuge; H.R. 770 and S. 543 would designate the area as wilderness.
This report provides background on the legal issues surrounding the ANWR
development-related proposals, and will be updated as circumstances warrant.
If the current statutory 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in the Refuge is repealed, then oil and gas development and related activities could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 in the 107th Congress contained a 2,000 acreage limitation on the
development “footprint” in the coastal plain, H.R. 39 does not. Absent express
language on the point, an acreage 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. 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on ASRC subsurface holdings in the Refuge, unless these provisions are superseded,
and some assert that the environmental terms of the agreement are lenient. If the
relevant provisions of the Agreement are not superseded by statutory language, it also
appears that the United States would have to obtain a court order to change an ASRC
leasing plan whenever the United States and ASRC disagree as to environmental
harm.
The environmental standard in H.R. 39 — “no significant adverse effect” — has
been used in the past, but could allow a range of adverse effects compared to other
standards that have also been used. New leasing and environmental regulations
would be developed without new environmental impact studies and without any
express requirement to consult with the Fish and Wildlife Service. A limited
environmental impact statement would be prepared on the leasing program, and site-
specific analyses would be completed on proposed drilling and related activities. The
conclusions of the Secretary as to environmental effects would be more difficult to
challenge than usual under the strict standard of review in H.R. 39. H.R. 39 has no
express terms as to revenue sharing with Alaska, but states that leasing would be
under the Mineral Leasing Act, which provides that 90% would go to Alaska and
10% to the federal treasury. In addition, the bill would establish a special Fund with
moneys from the federal share that would mitigate impacts in the area. H.R. 39
would direct the Secretary to prohibit export as one of the terms and conditions of
leases.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. Environmental Constraints. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(A). Administration of leasing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(B). Compatibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(C). Environmental standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(D). Technology standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(E). Specific protections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(F). Possible Effects on International Polar Bear Agreement . . . . . . . 11
(G). Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
II. Native Lands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(A). The nature and history of Native rights in ANWR . . . . . . . . . . . 14
(B). Current bill provisions and issues . . . . . . . . . . . . . . . . . . . . . . . . 21
III. Access, Rights of Way, and Exports. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
IV. Compliance with NEPA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
V. Judicial Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
VI. Disposition of Leasing Revenues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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Legal Issues Related to Proposed
Drilling for Oil and Gas in the
Arctic National Wildlife Refuge (ANWR)
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. 39 would open the
coastal plain for oil and gas leasing.
The landownerships and laws relevant to possible development in the Refuge
are complex, and the policy choices controversial.2 The environmental protections
provided in H.R. 39 or any other bills that might be proposed, 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 are discussed in this report. This report will be updated 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
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.
1 See CRS Report RL31278, Arctic National Wildlife Refuge: Background and Issues., M.
Lynne Corn, coordinator.
2 See CRS Issue Brief IB10111, Arctic National Wildlife Refuge (ANWR): Controversies for
the 108th Congress, by M. Lynne Corn, Bernard A. Gelb, and Pamela Baldwin.

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CRS-2
All lands on the North Slope were withdrawn January 22, 1943 by PLO 82.3 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.4
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.5 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)6
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),7 which, among other things, renamed the Range8 to be the Arctic
National Wildlife Refuge, and expanded the Refuge to include an additional 9.2
million acres, mostly to the south.9 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
3 8 Fed. Reg. 1,599 (February 4, 1943).
4 25 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.
5 United States v. Alaska, 521 U.S. 1 (1997).
6 P.L. 92-203, 85 Stat. 688, 43 U.S.C. §§ 1601 et seq.
7 P.L. 96-487, 94 Stat. 2374, 16 U.S.C. §§ 3101 et seq.
8 President Carter by Proclamation 4729 of February 29, 1980 had renamed the Range “The
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.
9 Section 303(2).

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CRS-3
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.10 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.11
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
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.
10 Section 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 ....”
11 It 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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CRS-4
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 would be 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.12
This language was added by Congress in 1976 to clarify that management of refuges
could not be administratively assigned to other agencies.13 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.14 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 currently the general mineral development manager for
the United States,15 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
12 16 U.S.C. § 668dd(a)(1).
13 P.L. 94-223, 90 Stat. 199.
14 16 U.S.C. 668dd(d).
15 See Secretarial Order 3087, December 2, 1982, as amended February 7, 1983 (48 Fed.
Reg. 8983).

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CRS-5
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].16

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.17
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
would be the lead agency with respect to leasing in refuges unless this is clearly
stated in the ANWR leasing statute. 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 for 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.
Under current procedures, refuges in Alaska that are open to leasing are not to
be available until the FWS has first completed compatibility determinations.18 A new
compatibility policy and new regulations were published on October 18, 2000, and
became effective November 17, 2000.19 “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.”20 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 26.21
16 43 C.F.R. § 3101.5-1.
17 43 C.F.R. § 3101.5-4.
18 43 C.F.R. § 3101.5-3.
19 65 Fed. Reg. 62484 and 65 Fed. Reg. 62458, respectively.
20 50 C.F.R. § 25.12(a) and see 16 U.S.C. § 668ee, which is nearly identical.
21 50 C.F.R. § 25.21(b).

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CRS-6
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.22 The current bills would authorize oil and
gas leasing and address both management and compatibility.
H.R. 39 states in § 3(a) that leasing is to be under the Mineral Leasing Act
(MLA)23 and administered by the Secretary — which term is defined in § 2(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 § 3 of H.R. 39, the Secretary is
to impose environmental constraints through new leasing regulations and other
measures, the role of the FWS is ambiguous.
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.24 H.R. 39 does not expressly assign leasing responsibilities to the BLM,
although that result may be implied by the reference to leasing being under the MLA.
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. The bill 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 in
this regard is not clear. As the legislation evolves, the respective jurisdictions of
BLM and FWS in this context may be clarified.
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. Section 3(c)(1) of H.R. 39 states that for purposes of the
National Wildlife Refuge Administration Act, the oil and gas leasing program and
activities authorized in that section are deemed to be compatible with the purposes
22 16 U.S.C. § 3143.
23 This language also raises issues in connection with the revenue-sharing provisions. See
“Revenues” below.
24 Trustees 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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CRS-7
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 what extent and by whom impacts resulting from
activities occurring on federal and 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. H.R. 39 uses “no significant adverse effect”
on fish and wildlife, their habitat, subsistence resources, and the environment as the
standard that is to guide leasing. This phrase is not defined, but has been used in the
past. It was used in § 1002 of ANILCA as the standard for the limited exploration
allowed under that section, throughout the 1983 Agreement, and in past bills that
would have authorized leasing.25 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.
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.”26 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.27 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
25 See H.R. 4 and S. 388 in the 107th Congress, and 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.”
26 42 U.S.C. § 6504(b).
27 Act of September 3, 1964, 78 Stat. 890, 893, 16 U.S.C. § 1133(d).

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CRS-8
preservation and management of those areas.28 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. Section 3(a) of H.R. 39 would require the use
of the “best commercially available technology for oil and gas exploration,
development, and production” and § 7(a)(2) would require that standard for all new
exploration, development, and production operations. H.R. 4 in the previous
Congress provided that the same standard would also apply to existing operations “if
practicable.” H.R. 39 is silent as to this issue. 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.29 Because it refers to
technology that already is more 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.30
(E). Specific protections. H.R. 39 would provide some specific
environmental protections, but would 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 § 8 of 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 3(e) of H.R. 39 provides 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 to
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
prohibits surface occupancy by lessees.31 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.
28 P.L. 94-429, 90 Stat. 1342, 16 U.S.C. § 1902.
29 Several provisions in current law use the phrase “commercially available technology” and
at least two provisions call for technological improvements above that standard. See 42
U.S.C. § 5906(b)(1) re non-nuclear energy research; 42 U.S.C. §§ 13331 and 13351 re clean
coal technology.
30 33 U.S.C. § 1311.
31 H.R. 39 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.

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This section 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 Secretary is directed to designate the Sadlerochit
Spring area (approximately 4,000 acres), as a Special Area, and must manage the
Special Areas “to protect and preserve the area’s unique and diverse character
including its fish, wildlife, and subsistence resource values.” The closure authority
in the bill is stated as being the sole source of closure authority. 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 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 6(a)(2) provides 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, and § 7(d)(2) 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,” language that does not
include the word “production.” 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 §3 of H.R. 39, the Secretary is to develop regulations to govern the
leasing of the coastal plain within 15 months of enactment, and under § 4(e)(1), the
first lease sale is to be held within 22 months after 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. In addition, the Secretary must
impose terms and conditions on leases to address environmental concerns. 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 §6(a)(5) 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.”32 Uses that are
‘higher and better’ than undeveloped wildlife habitat could include many conditions.
32 Black’s Law Dictionary (6th ed. 1990).

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Under §§ 6(a)(6), environmental conditions may be a part of a lease “as
required” pursuant to § 3(a)(2). (Emphasis added.) This language may mean only
as required to avoid “significant adverse effects.” If so, there would be 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.
Section 7(d) of H.R. 39 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 7(d)(1) 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.
H.R. 39 does not contain an acreage limitation on surface area to be covered by
production and support facilities, as was true of § 6507(a)(3) of the H.R. 4 in the
107th Congress.33
Section 7(b) of H.R. 39 would require 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 7(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 § 7(b)(3) this plan is to be developed “after
33 That language authorized leasing provided 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 have required 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 might have excluded facilities that don’t touch 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 the Secretary would have been required to lease
not less than 200,000 acres in the first lease sale, a greater footprint might have proven
necessary. Also, it is likely that oil development facilities would 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 would not be constrained by the 2,000 acre limitation.

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CRS-11
consultation with” the agency or agencies having jurisdiction over matters mitigated
by the plan. Apparently, this last reference would be to the FWS, which under
current law has the authority to develop and approve of such plans and activities,
rather than to consult regarding them.
Section 7(d)(3) requires that exploration activities be limited to the winter and
be “supported” by ice roads etc., 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, § 7(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.
It may also be asked what penalties would be available to enforce the
environmental protections and other lease requirements. H.R. 39 does not
specifically address penalties for violation of lease terms by a lessee. However, the
bill states that leasing in the Refuge would be under the MLA and that act provides
for cancellation of leases for infractions,34 and also provides civil and criminal
penalties for leasing violations, including failure to comply with lease terms.35
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.36 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.37 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.”38 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,
34 30 U.S.C. § 188.
35 43 C.F.R. Subpart 3163.
36 16 U.S.C. 668dd(f) and (g).
37 Agreement on the Conservation of Polar Bears, T.I.A.S. No. 8409, 27 U.S.T. 3918 (Nov.
15, 1973) [hereinafter Polar Bear Agreement].
38 Id., art.I(2).

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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
regard.39 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.”40
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.41 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
39 Draft 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.
40 Id., at 9.
41 Executive Rep. No. 94-34 (1976).

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CRS-13
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 is the
goal. Takes by harassment could still be allowed under the MMPA, consistent
with the Agreement.42
(G). Discussion. There are no specific requirements in H.R. 39 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 H.R. 39. H.R. 39 would apparently rely principally on the
penalties available under the MLA. It is unclear whether the currently available
penalties for violations in refuges would be available. 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.
Section 3(b) of H.R. 39 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.43 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.
42 Donald 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).
43 Section 503(b) of S. 388; § 6503(b) of H.R. 4. See Native Lands section below.

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CRS-14
(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,44 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 a part.45 The Kakovik Inupiat Corporation (KIC), a Village Corporation in the
Refuge, received selection rights to three townships under ANCSA.46
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.47
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.48 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
44 Section 12(a)(1); 43 U.S.C. § 1611(a)(1).
45 Section 22(g), 43 U.S.C. § 1621(g).
46 A “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.
47 43 U.S.C. § 1611(a)(1).
48 48 Fed. Reg. 7980 (February 24, 1983).

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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), [which as discussed above does not clearly exclude the
native lands from the coastal plain] lands in which the surface estate has already been
conveyed 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.”49 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
49 48 Fed. Reg. 16838, 16841, 16869 (April 19, 1983).

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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.
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.50 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 198451 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
50 Provisions B-1 and B-2 at 5-6 of Appendix 2 of the 1983 Agreement.
51 See P.L. 98-366, 98 Stat. 468, 471.

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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 ....”52 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 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.53
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.54
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 ANWR55 by presenting Congress with exchanges
52 H.Rept. 98-843 at 1 (1984).
53 Id., at 7.
54 Rep. 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).
55 See, e.g. the GAO Report: GAO/RCED-88-179 (September, 1988), Consideration of
(continued...)

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CRS-18
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 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.56
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.57
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:
55 (...continued)
Proposed Alaska Land Exchanges Should Be Discontinued.”
56 P.L. 100-395, 102 Stat. 979, 981, amending § 1302(h) of ANILCA; 16 U.S.C. §
3192(h)(2).
57 H.Rept. 100-262, Part 1 at 7-8 (1987).

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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 legislative approval by an Act of
Congress. However, this section is not intended to effect [sic] lands validly
selected prior to July 28, 1987.58
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.”59
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.”60
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.61 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.62
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
58 Id., 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.
59 S.Rept. 100-302 at 3 (1988).
60 Mackey v. Lanier Collection Agency & Serv., 486 U.S. 825, 840 (1988) (quoting United
States v. Price, 361 U.S. 304, 313 (1960).
61 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-381 (1969).
62 Mount 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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CRS-20
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
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.63 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.64
63 58 Fed. Reg. 14323 (March 17, 1993).
64 43 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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CRS-21
(B). Current bill provisions and issues.
(1). Conveyances to KIC. Section 10(1) of H.R. 39 would authorize the
conveyance of final land selections to KIC. It will be recalled that congressional
authorization to complete the 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. H.R. 39 directs that conveyance of the selected lands be in accordance with
the January 22, 1993 Agreement. Section 10(2) directs that ASRC receive the
remaining subsurface estate to which it is entitled under the August 9, 1983
agreement.
(2). Environmental constraints on Native lands. As discussed above,
H.R. 39 addresses oil development activities in the coastal plain/1002 area, and
provides 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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CRS-22
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.65 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.66 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
65 See 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.
66 The 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.

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CRS-23
would 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.
H.R. 39 does not clarify how it relates to the 1983 agreement with ASRC; it
does not provide that any of its environmental constraints supersede the provisions
of that agreement, and therefore, arguably, those agreement provisions apply. 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
Congress, which limited port facilities and other development support activities and
directed the promulgation of Refuge-wide regulations within a specified time.
(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

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CRS-24
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.67
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).68
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.
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
67 Opinion to the Director, Bureau of Sport Fisheries and Wildlife from the Acting Associate
Solicitor for Conservation and Wildlife, September 11, 1973.
68 See 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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CRS-25
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.
(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.

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CRS-26
(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, we will base our
analysis on the existing conditions with the use in place, not from a pre-use
perspective.69
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. H.R. 39 provides that oil and gas
leasing in the Refuge is 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
69 50 C.F.R. § 25.21 at 65 Fed. Reg. 62481-62482.

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CRS-27
for the purposes for which they are leased ....”70 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.”71
H.R. 39 does not address individual allotments within the Refuge — e.g., by
providing for regulated access and use, or for buying them out, etc.
(6). Timing. H.R. 39 would repeal the § 1003 prohibition against oil and gas
development in the Refuge, thereby allowing such development, but does not place
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
finalized for 15 months. As discussed above, the bill does not expressly address 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 9(a) of H.R. 39 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 § 9 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),
on rights of way under the MLA, 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.
Subsection (s) of 30 U.S.C. § 185, allows the export of oil transported by
pipeline through the Trans-Alaska Pipeline System (TAPS) 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
70 16 U.S.C. § 1133(d).
71 16 U.S.C. § 1902.

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CRS-28
of Valdez. If so, then the oil normally could be exported. However, § 6(a)(8) of
H.R. 39 would require that a lease prohibit the export of oil produced under it.
The rights of way language in H.R. 39 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, and 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.
H.R. 39 does not expressly address 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.72 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.73
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.74
72 Under § 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.
73 16 U.S.C. § 3170(b).
74 Congress 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
(continued...)

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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 199175 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. H.R. 39 addresses the issue of the EIS and future
application of NEPA.
Section 3(c)(2) of H.R. 39 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, thereby
eliminating the need to redo or update the EIS for the leasing regulations. Under §
3(c)(3), the Secretary is directed to prepare and EIS with respect to actions other than
the preparation of the regulations. This is noteworthy because only the smaller
document, an environmental assessment, might normally be sufficient, depending on
the magnitude of the action involved. The rest of that paragraph sets out limitations
on the alternatives that the Secretary must consider as to leasing, as though this
paragraph relates only to the leasing stage, rather than to all actions other than the
development of regulations. 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 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 act other than the
development of coastal plain leasing regulations, yet also speaks as though it is only
meant to address proposals for lease sales, so the intended import is not clear.
Section 7(b) of H.R. 39 requires a site-specific analysis to study the effects of
any drilling or related activities, which analysis arguably must be an EIS under the
§ 3 requirement.
74 (...continued)
wilderness, ... by means which have been or are customarily enjoyed with respect to other
such areas similarly situated.”
75 NRDC v. Lujan, 768 F. Supp. 870 (D.D.C. 1991)

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V. Judicial Review.
H.R. 39 contemplates prompt action to put a leasing program in place. Toward
that end, it expedites judicial review. Section 8 requires 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, and be filed only in the United States Court of Appeals for the District of
Columbia. It also provides 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. 39 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 the act
and shall be based upon the administrative record of that decision. Furthermore,
under §8(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,76 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),77 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%
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.78 Section 28(b) of the Alaska Statehood Act again
76 See Charles H. Koch, ADMINISTRATIVE LAW AND PRACTICE, § 10.8 (2d ed. 1997).
77 Act of February 25, 1920, ch. 85, 41 Stat. 450, 30 U.S.C. §191.
78 P.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.

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amended the MLA to change the references from the territory of Alaska to State of
Alaska.79
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.80 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.81
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.”82
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
United States therefore retained discretion over leasing decisions.83 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.
79 P.L. 85-508, 71 Stat. 339, 351.
80 P.L. 94-579, 90 Stat. 2743, 2770-2771.
81 H.Rept. 94-1724 at 62 (1976).
82 Alaska v. United States, 35 Fed. Cl. 685, 701 (1996).
83 Id., at 706.

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CRS-32
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,84 except for the National Petroleum Reserve in Alaska, in which
instance the revenue sharing is 50/50.85 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.
H.R. 39 is silent as to revenues, but states in § 3(a) that the leasing program is
to be under the MLA. Therefore, it appears that the usual 90/10 split would pertain.
In addition, § 11 would establish a new “Coastal Plain Local Government Impact Aid
Assistance Fund” to ameliorate the impacts of leasing on the coastal plain. Money
derived from bonuses, rentals, and royalty revenues received by the United States
from the oil and gas leases and lease sales are to fund the Fund up to a total amount
in the fund of not to exceed $10,000,000. Yet § 11(e) also provides that there are
authorized to be appropriated from the Fund $5,000,000 for each fiscal year.
84 10 U.S.C. § 7433.
85 P.L. 96-514, 94 Stat. 2964.

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