479 F.2d 842 (D.C. Cir. 1973), 72-1796, Wilderness Soc. v. Morton

Docket Nº:72-1796 to 72-1798.
Citation:479 F.2d 842
Party Name:The WILDERNESS SOCIETY et al., Appellants v. Rogers C. B. MORTON, Secretary of the Interior, et al.
Case Date:February 09, 1973
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 842

479 F.2d 842 (D.C. Cir. 1973)

The WILDERNESS SOCIETY et al., Appellants

v.

Rogers C. B. MORTON, Secretary of the Interior, et al.

Nos. 72-1796 to 72-1798.

United States Court of Appeals, District of Columbia Circuit.

February 9, 1973

Argued En Banc Oct. 6, 1972.

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Edward Berlin, Washington, D. C., with whom Gladys Kessler, Washington, D. C., was on the brief, for appellants in No. 72-1796.

Dennis M. Flannery, Washington, D. C., with whom James N. Barnes, Saunders C. Hillyer, John F. Dienelt, Thomas B. Stoel, Jr., Victor H. Kramer, Washington, D. C., James W. Moorman, San Francisco, Cal., and Charles R. Halpern, Washington, D. C., were on the brief, for appellants in No. 72-1797.

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Warren W. Matthews, Jr., Anchorage, Alaska, of the bar of the Supreme Court of Alaska, pro hac vice, by special leave of court, with whom Thomas F. Hogan, Rockville, Md., was on the brief, for appellant in No. 72-1798.

Edmund B. Clark, Atty., Dept. of Justice, with whom Asst. Atty. Gen. Kent Frizzell and Herbert Pittle, Thomas L. McKevitt, David W. Miller and William M. Cohen, Attys., Dept. of Justice, were on the brief, for appellee Morton.

Paul F. Mickey and Robert E. Jordan, III, Washington, D. C., with whom Scott R. Schoenfeld and Quinn O'Connell, Washington, D. C., were on the brief, for appellee Alyeska Pipeline Service Co.

John E. Havelock, Atty. Gen., State of Alaska, pro hac vice, by special leave of court, with whom John E. Nolan, Jr., William H. Allen, Richard D. Copaken, and Jay L. Carlson, Washington, D. C., were on the brief, for appellee State of Alaska.

Tilford A. Jones and Earle D. Goss, Bethesda, Md., filed a brief on behalf of United Distribution Companies as amicus curiae.

Before BAZELON, Chief Judge, and WRIGHT, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc. [*]

J. SKELLY WRIGHT, Circuit Judge:

The question before us in these cases is whether a permanent injunction should issue barring appellee Secretary of the Interior from carrying out his stated intention of granting rights-of-way and special land use permits necessary for construction by appellee Alyeska Pipeline Service Company (Alyeska), across lands owned by the United States, of a 48-inch-wide oil pipeline which would stretch some 789 miles from Prudhoe Bay on the North Slope of the State of Alaska to the Port of Valdez on the southern Pacific coast of Alaska. We are also called upon to determine the legality of a special land use permit issued by the Acting Forest Supervisor of the Chugach National Forest, on behalf of the Department of Agriculture, which would permit construction of an oil tank farm terminal on Chugach National Forest land bordering Prince William Sound at Valdez. The District Court, on April 23, 1970, granted a preliminary injunction against issuance of the permits and rights-of-way. See Wilderness Society v. Hickel, D.D.C., 325 F.Supp. 422 (1970). When the question of a permanent injunction came before the District Court on August 15, 1972, the court, in a brief unreported opinion, dissolved the preliminary injunction, denied a permanent injunction, and dismissed the complaints. This expedited appeal followed. We reverse.

While the parties to this action have managed to produce a record and a set of briefs commensurate with the multibillion-dollar project at stake, the basic contentions of the parties, and our views with respect thereto, may be summarized quite briefly. Appellants contend that issuance of certain rights-of-way and special land use permits by the Secretary of the Interior to Alyeska and to the State of Alaska would violate Section 28 of the Mineral Leasing Act of 1920, 30 U.S.C. § 185 (1970), by exceeding the width limitation of that section. They argue, too, that the permit issued by the Forest Supervisor violates 16 U. S.C. §§ 497 and 497a (1970) by exceeding the 80-acre limitation of those sections. Finally, appellants contend that issuance of any permits or rights-of-way necessary for construction of the trans-Alaska pipeline violates the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (1970) (hereinafter NEPA). In general they claim that Interior has not prepared an adequate environmental impact statement. More specifically, they charge that the six-volume statement issued by the Department

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of the Interior fails adequately to consider either the alternative of a pipeline route through Canada or the alternative of deferral of a decision until more information on the Canadian alternative can be obtained.

Appellees respond that all of the rights-of-way to be issued to the State of Alaska and some of the rights-of-way to be issued to Alyeska are authorized under statutes other than Section 28, that the Secretary's authority to issue the other rights-of-way to Alyeska may be implied under Section 28, and that the special land use permits to be issued to Alyeska are not rights-of-way within the meaning of Section 28 and are thus exempt from Section 28's width limitation. As to the land use permit issued by the Forest Supervisor, appellees first argue that we should not decide the issue because it will soon become moot by reason of the imminent transfer of the land concerned to the State of Alaska under the Alaska Statehood Act, Pub.L. 85-508, 72 Stat. 339, July 7, 1958, as amended. Should we choose to decide the issue, however, appellees maintain that issuance of revocable land use permits does not violate the acreage limitations of Sections 497 and 497a and is independently authorized under 16 U.S.C. § 551 (1970).

On the question of compliance with NEPA, appellees contend generally that their intensive efforts at compliance, involving expenditure of over $9,000,000, have produced a statement that more than meets the requirements of the Act. Focusing on the Canadian alternative and the alternative of deferral, they argue that these matters received sufficient consideration, both in the impact statement itself and by the Secretary of the Interior in making his decision to support the trans-Alaska pipeline, and that given certain problems with the Canadian alternative, the lack of information about other aspects of the alternative, and the high costs of deferral to obtain more information, the Secretary's decision to grant the pipeline permits was not an abuse of discretion.

Before summarizing our holding, we wish to note first that we have brought to these cases an awareness of the severe impacts our ruling will have. Any decision further enjoining construction of this project will impose serious costs on the oil companies who plan to build the pipeline and who have made substantial investments that cannot begin to show a return until oil begins to flow from their wells at Prudhoe Bay. The project means much needed jobs and income to the people of the State of Alaska, and development of Prudhoe Bay oil resources will bring forth badly needed revenues for the Alaska State Treasury. Recognizing these hardships, however, we nevertheless are constrained to enjoin the Secretary of the Interior from issuing one of the permits which all parties recognize is necessary for construction of the pipeline. We have determined that the Secretary of the Interior lacks authority to grant the special land use permit for construction purposes which Alyeska has requested, and that the grant of this permit constitutes a violation of both Section 28 of the Mineral Leasing Act and applicable Bureau of Land Management regulations. We base our decision on a literal reading of the provisions of Section 28, the legislative history of that section, and the settled construction of the administrative regulations. In brief, it is our view that the legislative history clearly indicates that when Congress enacted Section 28 it intended that all construction work take place within the confines of the width limitation of the section-that is, within the area covered by the pipe itself (4 feet) and 25 feet on either side. In addition, the relevant regulations require that all special land use permits be revocable, and we hold that the permit in this case does not meet the requirement as it has previously been construed. Since all parties agree that construction of the proposed 48-inch diameter pipeline is impossible if all construction work must take place within the width limitation of Section 28, we must enjoin issuance of this special land use permit

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until Congress changes the applicable law, either by amending Section 28's width limitation or by exempting this project from its provisions.

As to the remaining issues in these cases, our holding is as follows. The Secretary of the Interior has authority to issue to the State of Alaska rights-of-way for a state highway, for several public airports, and for the free use of gravel for these facilities, even though the facilities will probably be used primarily for the construction, maintenance and operation of the proposed pipeline. We rest this holding on our conclusion that Section 28 of the Mineral Leasing Act does not bar resort to other specific statutory grants of rights-of-way. For the same reason we conclude that the Secretary has authority to issue rights-of-way to Alyeska for 26 communication sites along the pipeline route. Also, the Secretary has authority to issue rights-of-way for construction of pumping stations along the pipeline route since our reading of the statute and its legislative history and our recognition of a settled administrative practice in this regard lead us to conclude that pumping stations are part of the "pipeline" within the meaning of Section 28.

Although the parties have briefed and argued the...

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