Legal Issues Related to Proposed Drilling for Oil and Gas in the Arctic National Wildlife Refuge (ANWR)
CRS Report for Congress
Legal Issues Related to Proposed
Drilling for Oil and Gas in the
Arctic National Wildlife Refuge (ANWR)
Updated May 4, 2005
American Law Division
Congressional Research Service ˜ The Library of Congress
Legal Issues Related to Proposed Drilling for Oil and
Gas in the Arctic National Wildlife Refuge (ANWR)
Congress is again 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 of maintaining the area as a Refuge
without drilling. This area is rich in wildlife and wilderness values, but may also
contain significant oil and gas deposits. H.R. 567 and S. 261 have been introduced
in the 109th Congress to designate the coastal plain of ANWR a wilderness, but H.R.
6 has passed the House. Title XXII of the bill would authorize oil and gas leasing in
ANWR. Both the House and Senate have approved H.Con.Res. 95, a budget
resolution that may necessitate revenues from oil and gas development in the Refuge
to meet the budget reconciliation targets, and allow enactment of such legislation
without filibuster. This report provides background on the legal issues surrounding
ANWR development proposals, and will be updated as circumstances warrant. For
an updated summary of current actions on bills, see CRS Issue Brief IB10136, Arctic
National Wildlife Refuge (ANWR): Controversies for the 109th Congress.
H.R. 6 would authorize leasing in ANWR and contains a 2,000 acre limitation
on the “footprint” of leasing development in the Coastal Plain. However, 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is repealed, then oil and gas development and related activities could occur not only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. 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 exploration
on ASRC subsurface and associated surface rights in the Refuge, unless these
provisions are superseded by statute or regulations, and some assert that the
environmental terms of the agreement are lenient. ASRC agreed to comply with
statutes and regulations to protect wildlife, habitat, and the environment of the
Coastal Plain. It is unclear whether some or all of ASRC’s lands are subject to the
2,000 acre limit, and how that acreage might be allocated among ASRC and federal
H.R. 6 gives primary responsibility for leasing to the Secretary of the Interior
acting through the Director of the Bureau of Land Management rather than the Fish
And Wildlife Service, the agency that implemented the oil exploration program for
the Coastal Plain. The environmental standard in H.R. 6 — “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. H.R. 6 also would limit the
NEPA process applicable to leasing in ANWR, and limit and expedite judicial
review. The bill states that leasing is to be under the Mineral Leasing Act (MLA),
yet would establish a 50/50 revenue sharing formula different from the 90/10 formula
in the MLA, a fact that might raise issues related to the Alaska Statehood Act.
In troduction ......................................................1
I. Environmental Constraints.....................................4
(A). Administration of Leasing...............................4
(C). Environmental Standard................................7
(D). Technology Standard...................................8
(E). Specific Environmental Protections........................9
(F). Possible Effects on International Polar Bear Agreement.......12
II. Native Lands..............................................14
(A). The Nature and History of Native Rights in ANWR..........14
(B). Current Bill Provisions and Issues........................22
III. Access, Rights of Way, and Exports...........................29
IV. Compliance with NEPA.....................................30
V. Judicial Review............................................31
VI. Disposition of Leasing Revenues..............................32
Legal Issues Related to Proposed
Drilling for Oil and Gas in the
Arctic National Wildlife Refuge (ANWR)
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 of maintaining the Refuge without
drilling.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. On April 21, 2005, the House passed H.R. 6, a comprehensive
energy bill that includes Title XXII, Arctic Coastal Plain Domestic Energy, opening
the Refuge to oil and gas development. On April 28, 2005, both the House and
Senate agreed to H.Con.Res. 95, a budget resolution that may necessitate oil and gas
drilling in the Refuge to meet the budget reconciliation targets, and could permit
legislation on such drilling to be enacted on a simple majority vote, without the
possibility of a filibuster.2
The land ownerships and laws relevant to possible development in the Refuge
are complex, and the policy choices controversial.3 The environmental protections
provided in H.R. 6, 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. Attention has focused on § 2207(a)(3) of H.R. 6, that would impose a
2,000 acre limit on the surface of the Coastal Plain that can be covered with support
structures associated with oil and gas development. However, this limit may not
apply to some or all of the more than 100,000 acres of Native lands in the Refuge.
Legal issues that relate to possible development of the Refuge and the recent
proposals regarding possible leasing in ANWR are discussed in this report. This
report will be updated as circumstances warrant.
1 See CRS Report RL31278, Arctic National Wildlife Refuge: Background and Issues, M.
Lynne Corn, coordinator.
2 If legislation opening ANWR were to be a part of a reconciliation measure, under the
Congressional Budget Act of 1974, debate would be limited in the Senate to 20 hours.
Amendments could still be offered, however. Section 310(e), P.L. 93-344, 88 Stat. 315, 2
3 See CRS Issue Brief IB10136, Arctic National Wildlife Refuge (ANWR): Controversies for
the 109th Congress, by M. Lynne Corn, Bernard A. Gelb, and Pamela Baldwin.
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.
All lands on the North Slope were withdrawn January 22, 1943, by PLO 82.4
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.5
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.6 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)7
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 pre-1971refuges
were not available, and in-lieu lands were substituted for them. Under § 22(g) of
ANCSA, surface lands conveyed in such refuges were subject to the regulations
applicable to the particular refuge of which they were a part.
4 8 Fed. Reg. 1,599 (February 4, 1943).
5 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.
6 United States v. Alaska, 521 U.S. 1 (1997).
7 P.L. 92-203, 85 Stat. 688, 43 U.S.C. §§ 1601 et seq.
In 1980 Congress enacted the Alaska National Interest Lands Conservation Act
(ANILCA),8 which, among other things, renamed the Range9 to be the Arctic
National Wildlife Refuge, and expanded the Refuge to include an additional 9.2
million acres, mostly to the south.10 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 directed that all of the resources of the coastal plain
of the Refuge be studied. (As a result, the coastal plain is sometimes referred to as
the “1002 area.”) The 1002 area was administratively articulated as excluding the
three townships of land belonging to the Kaktovik Inupiat Corporation (KIC), a
Village Corporation. 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 approximately 19,588
additional acres within the Coastal Plain, making a total of more than 92,000 acres
of KIC lands in the Refuge. Section 1003 of ANILCA 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 in the Refuge. Normally, ASRC
could 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. The separate
environmental constraints of the 1983 Agreement on ASRC’s exploratory activities
apply unless they are superseded by statute or regulations, and ASRC also agreed to
be bound by regulations on federal leases that are designed to protect the
environment of the coastal plain. Whether particular limitations, such as the 2,000
acre limit, would apply is not clear at this time.
8 P.L. 96-487, 94 Stat. 2374, 16 U.S.C. §§ 3101 et seq.
9 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.
10 Section 303(2).
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.
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.
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 that have been
considered are highly protective of the environment, or that they are not. Hence the
environmental aspects of any bills are of particular interest. Some of the most critical
elements in an analysis of environmental provisions of any 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; 6) compliance with the National Environmental Policy Act; 7) the
2,000 acre “footprint” limitation; and 8) 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.” This section discusses only the environmental constraints applicable to the
federal lands. For a discussion of possible environmental constraints on Native
lands, see “Native Lands” below.
(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 Several provisions in the
Refuge Administration Act address the management of refuges in Alaska. For
example, planning for the management of refuge lands in Alaska is to be governed14
by the refuge planning provisions of ANILCA, and § 304(g) of ANILCA provides
planning procedures for refuges in Alaska and other provisions on refuge
Under current law applicable to non-Alaskan refuges, when evaluating whether
to approve an activity in a refuge, the Director of the FWS (or an FWS officer to
whom the duties are delegated) may approve an activity only if it is compatible with
the major purposes for which the System and the particular unit were created.
Longer-term uses must be compatible with all the purposes, major or otherwise, of
both the System and the particular unit. (16 U.S.C. § 668dd(d)). Under § 304 of
12 16 U.S.C. § 668dd(a)(1).
13 P.L. 94-223, 90 Stat. 199.
14 Section 7(a) of P.L. 105-57; 16 U.S.C. § 668dd(e)(1)(A).
ANILCA, the Secretary is authorized to enter into cooperative management
agreements with Native Corporations, the state, or political subdivisions of the state
with respect to lands within, adjacent to or near any national wildlife refuge, which
agreements shall provide that the land subject to the agreement shall be managed by
the owner or occupant in a manner compatible with the major purposes of the refuge.
Section 304 of ANILCA also generally withdraws all public lands including whatever
submerged lands, if any, were retained in federal ownership at the time of statehood,
but does not withdraw them from the operation of mineral leasing laws. Similarly,
the Refuge Administration Act does not withdraw non-Alaskan refuges from possible
oil and gas leasing, but many individual units are so withdrawn and leasing is
allowed on very few.
Also with respect to refuges in Alaska, the Refuge Administration Act expressly
subjects resource management by any other agency of the federal government under
cooperative agreements to direct supervision by the FWS:
With respect to refuge lands in the State of Alaska, those programs relating to the
management of resources for which any other agency of the Federal Government
exercises administrative responsibility through cooperative agreement shall
remain in effect, subject to the direct supervision of the United States Fish and15
Wildlife Service, as long as such agency agrees to exercise such responsibility.
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,16 the Mineral Leasing Act does not specify that the Secretary of the
Interior is to administer leasing through that agency. Current mineral leasing
regulations recognize the authority of FWS over the wildlife resources on refuge
lands and reserve considerable authority to the Director of FWS with respect to oil
and gas leasing in Refuges:
(a)... Sole and complete jurisdiction over such lands for wildlife conservation
purposes is vested in the Fish and Wildlife Service even though such lands may
be subject to prior rights for other public purposes or, by the terms of the
withdrawal order, may be subject to mineral leasing.
(b)... [t]here is to be no drilling or prospecting under any mineral lease heretofore
or hereafter issued on lands within a wildlife refuge except with the consent and
approval of the Secretary with the concurrence of the Fish and Wildlife Service
as to the time, place and nature of such operations in order to give complete
protection to wildlife populations and wildlife habitat on the areas leased, and all
such operations shall be conducted in accordance with the stipulations of the
Bureau on a form approved by the Director [of the National Wildlife Refuge17
This protective posture is repeated in another regulation that provides:
15 16 U.S.C. § 668dd(a)(1).
16 See Secretarial Order 3087, December 2, 1982, as amended February 7, 1983 (48 Fed.
17 43 C.F.R. § 3101.5-1.
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 Fish18
and Wildlife Service.
Under current regulations, refuges in Alaska that are open to leasing are not to
be available until the FWS has first completed compatibility determinations.19 A new
compatibility policy and new regulations were published on October 18, 2000, and
became effective November 17, 2000.20 “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.”21 As will be discussed, Native lands in
Alaskan refuges that are subject to certain restrictions under § 22(g) of ANCSA are
expressly subject to the special regulations on compatibility in 50 C.F.R. 25 and 26.22
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 decision23
of whether to lease the coastal plain area. The current bills would authorize oil and
gas leasing and address both management and compatibility.
H.R. 6 states in § 2203(a) that leasing is to be under the Mineral Leasing Act24
(MLA) and administered by the Secretary of the Interior acting through the Director
of the Bureau of Land Management (BLM). As noted above, generally leasing under
the MLA is conducted by the BLM, with the concurrence of and under stipulations
provided by the Director of 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 § 2203
of H.R. 6 the Secretary is to impose environmental constraints through new leasing
regulations and other measures, the role of the FWS is not yet clear.
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
18 43 C.F.R. § 3101.5-4.
19 43 C.F.R. § 3101.5-3.
20 65 Fed. Reg. 62484 and 65 Fed. Reg. 62458, respectively.
21 50 C.F.R. § 25.12(a) and see 16 U.S.C. § 668ee, which is nearly identical.
22 50 C.F.R. § 25.21(b).
23 16 U.S.C. § 3143.
24 This language also raises issues in connection with the revenue-sharing provisions. See
contrary.25 H.R. 6 expressly assigns leasing responsibilities to the BLM “in
consultation with the Director of [FWS].” 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. However, 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
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 2203(c)(1) of H.R. 6 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 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 for purposes of
refuge management. It does not, however, resolve all 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.) Also, 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,
(C). Environmental Standard. H.R. 6 uses “no significant adverse effect”
on fish and wildlife, their habitat, subsistence resources, and the environment as the
standard 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 of the
coastal plain allowed under that section, it is used throughout the 1983 Agreement,
in past bills that would have authorized leasing in ANWR and it is used with respect
to leasing in the NPRA.26 Arguably, it could be seen as analogous to the standard
25 Trustees for Alaska v. Watt, 524 F. Supp. 1303 (D. Ak. 1981), aff’d 690 F. 2d 1279, 1307
(9th Cir. 1982).
26 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
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.”27 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.28 A statute that addresses already existing mining rights in
national parks requires that mining rights be “subject to such regulations prescribed
by the Secretary of the Interior as he deems necessary or desirable for the
preservation and management of those areas.29 In ANWR, Congress would be
authorizing new leasing in a special statute, and hence would have greater latitude
to impose a protective standard without infringing upon existing rights.
(D). Technology Standard. Section 2203(a) of H.R. 6 would require the
use of the “best commercially available technology for oil and gas exploration,
development, and production” and § 2207(a)(2) would require that standard for all
new exploration, development, and production operations. A computer search
indicates that the phrase “best commercially available technology” is not currently30
used in the U.S. Code, and does not have any available judicial interpretation.
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 the31
Clean Water Act. Section 2203(a)(2) goes on to direct that the best commercially
available technology standard be applied “in a manner that ensures the receipt of fair
long-term reductions in the natural abundance or distribution of a species of fish or wildlife
on the coastal plain.” See also, 42 U.S.C. § 6508 re APRA.
27 42 U.S.C. § 6504(b).
28 Act of September 3, 1964, 78 Stat. 890, 893, 16 U.S.C. § 1133(d).
29 P.L. 94-429, 90 Stat. 1342, 16 U.S.C. § 1902.
30 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
31 33 U.S.C. § 1311.
market value for the public for the mineral resources to be leased.” It is not clear
how this additional requirement might affect the application of the standard.
(E). Specific Environmental Protections. H.R. 6 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 § 2208 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
2,000 Acre Limitation. Section 2207(a)(3) of H.R. 6 contains an acreage
limitation on surface area that can be covered by production and support facilities.
The language provides 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, not exceed 2,000 acres on the Coastal Plain.
The reference to surface acreage “covered by” production and support facilities
appears to exclude the parts of structures and 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 be required
to lease not less than 200,000 acres in the first lease sale, a greater footprint might
prove necessary, and this limitation would be changed. Also, it is likely that oil
development facilities would not be in a single, consolidated footprint, but would be
scattered over a much larger area and be connected by pipelines and possibly roads
that would impact a much larger area.32 Equally important, if oil and gas were
discovered in commercial quantities, it appears that support and development
facilities could be constructed on some or all of the more than 100,000 acres of
Native lands in the Refuge, free of the 2,000 acre limitation. See “Native Lands”
Special Areas. Section 2203(e) of H.R. 6 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 Coastal Plain
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
could be leased if the Secretary prohibits surface occupancy by lessees.33 This
provision does not expressly require consultation with the FWS, and the Secretary
could implement the advice of state and local entities as to designation, special
protection, and possible closure of unique and special areas.
32 For additional discussion of issues related to technology and the “footprint” of
development, see CRS Report RL32108, North Slope Infrastructure and the ANWR Debate,
by M. Lynne Corn.
33 Section 30403(e) of H.R. 6 also contained 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.
This section would also 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 to 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 might
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 being crucial to survival of a species.
Seasonal Closures. Section 2206(a)(2) provides that the Secretary may use
lease terms to 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 § 2207(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 did not expressly include the word
“production.” It is not clear what would have needed 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 would
have counted toward the acreage limitation on closures, but probably they would not.
Environmental Regulations. Under §2203 of H.R. 6, the Secretary is to
develop regulations to govern the leasing of the coastal plain within 15 months of
enactment, and under § 2204(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 are required to 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 is directed to 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.
Under § 2206(a)(6), environmental conditions could be a part of a lease “as
required” pursuant to § 2203(a)(2). (Emphasis added.) This language might mean
only as required to avoid “significant adverse effects.”
Reclamation. The reclamation standard in §2206(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.”34 Uses
that are ‘higher and better’ than undeveloped wildlife habitat could include many
Compliance with Other Laws. Section 2207(d) of H.R. 6 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 might
be modified by the legislation, as indicated. Section 2207(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 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 H.R. 6 language requires the new
ANWR leasing standards to be “at least as effective as” the 1987 measures and
therefore allows 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
Site-Specific Analyses. Section 2207(b) of H.R. 6 directs the Secretary to
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 2207(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 for avoiding adverse effects is clearly a protective posture. However,
under § 2207(b)(3) this plan is to be developed “after consultation with” the agency
or agencies having jurisdiction over matters mitigated by the plan. Apparently, this
last reference is to the FWS, which agency under current law has the authority to
develop and approve of such plans and activities, rather than merely to consult
Exploration. Section 2207(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 the Secretary finds such exploration would
have no significant adverse effect on the fish and wildlife, their habitat, and the
environment of the Coastal Plain. There is no similar requirement applicable to
Roads. Similarly, § 2207(d)(4),(5),(7), and (12) relate to potential controls of
roads, transportation, and air traffic disturbance, but no specific controls are
specified. Here too, the regulations depend on the Secretary’s interpretation and
wording of any prohibitions. This is also true with respect to the requirements for
“appropriate” controls on explosives, sand and gravel extraction, etc.
34 Black’s Law Dictionary (6th ed. 1990).
Penalties. It may also be asked what penalties would be available to enforce
the environmental protections and other lease requirements. H.R. 6 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 provides35
for cancellation of leases for infractions, and also provides civil and criminal
penalties for leasing violations, including failure to comply with lease terms.36
Because of the ambiguity about the role of FWS regarding leasing activities, it was
not clear whether the penalties usually available for infractions on refuge lands would37
continue to apply. If so, these include fines and imprisonment. 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.38 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.”39 Article III sets out five exceptions to the taking
prohibition, which a party to the Agreement may allow. These exceptions include
several relating to traditional take by a party’s nationals; take for scientific purposes,
for conservation purposes, or to prevent serious disturbance of the management of
other living resources.
Article II of the Agreement requires certain actions to protect habitat of the
bears. Parties are to:
1) take “appropriate action to protect the ecosystem of which polar bears are a
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
35 30 U.S.C. § 188.
36 43 C.F.R. Subpart 3163.
37 16 U.S.C. 668dd(f) and (g).
38 Agreement on the Conservation of Polar Bears, T.I.A.S. No. 8409, 27 U.S.T. 3918 (Nov.
39 Id., art.I(2).
regard.40 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.”41
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.42 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 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.43 In such an
eventuality recourse would be available to the other parties to the Agreement, but the
argument exists as a policy argument against such leasing activities, and at least one
commentator asserts that such leasing might result in an inconsistency with the
Agreement, such that either the Agreement or the MMPA should be amended.
The Polar Bear Agreement does not authorize incidental take within the polar
bear protection zone. Such takes are authorized under section 101(a)(5) of the
MMPA. Because the Agreement does not now prohibit harassment, an
inconsistency exists only to the extent such takes would be lethal, involve the
capture of bears, or be a product of habitat degradation or destruction. Because
there is potential for polar bears to be lethally taken incidental to activities such
as oil and gas operations, it is necessary to either amend the Agreement or to
amend the MMPA to prohibit such takes if consistency with the Agreement is the
goal. Takes by harassment could still be allowed under the MMPA, consistent44
with the Agreement.
40 Draft Report to Congress on Status of United States Implementation of the 1973
International Agreement on the Conservation of Polar Bears, Prepared by U.S. Fish and
Wildlife Service, Alaska Region, October, 1997. (No final report yet available.)
41 Id., at 9.
42 Executive Rep. No. 94-34 (1976).
43 It is possible that if climatic warming continues to reduce ice in the Arctic Ocean, that on-
shore denning might become increasingly important to the polar bears, thereby making
development more significant.
44 Donald C. Baur, Reconciling Polar Bear Protection under United States Laws and the
(G). Discussion. There are no specific requirements in H.R. 6 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 are 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
would 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, acting
through the Director of BLM, whose choices would be difficult to challenge under
the strict standards for judicial review. H.R. 6 would apparently rely principally on
the penalties available under the MLA. It is unclear whether the separate penalties
for violations in refuges would be available. Arguably, 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 2203(b) of H.R. 6 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. Although geographically within the coastal plain of the Refuge,
most of the Native lands were administratively excluded from the “Coastal Plain” as
a defined term. Native lands in the Refuge 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 leasing in the Refuge has been little discussed. Under a 1983
Agreement, separate environmental controls would apply to Native oil exploration
activities, unless the terms of the Agreement are superseded by statute or regulations.
Statutory and regulatory leasing requirements designed to protect wildlife and the
coastal plain would apply to development and production of ASRC oil, but it is not
clear to what extent specific provisions, such as the 2,000 acre limitation on the use
of the surface within the Coastal Plain, would apply. Both Native individuals and
Native Village and Regional Corporations have various interests relevant to the issue
of oil drilling in ANWR.
(A). The Nature and History of Native Rights in ANWR.
ANCSA. In 1971, Congress enacted the Alaska Native Claims Settlement Act
(ANCSA) to resolve Native aboriginal claims against the United States. ANCSA
provided for monetary payments and also created Village Corporations that received
the right to select the surface estate to approximately 22 million acres of lands in
close proximity to villages. A village located in or adjacent to a refuge could select
a certain amount of surface lands within the refuge,45 thereby maintaining traditional
ways of life. Under §22(g) of ANCSA, lands chosen in pre-ANCSA refuges were
International Agreement for the Conservation of Polar Bears, 2 ANIMAL LAW 9, 85
45 Section 12(a)(1); 43 U.S.C. § 1611(a)(1).
subject to the laws and regulations governing the use of the refuge of which they
were a part.46 The Kakovik Inupiat Corporation (KIC), a Village Corporation in the
Refuge, received selection rights to three townships under ANCSA.47
ANCSA also created Regional Corporations which could receive subsurface
rights to some lands and either surface rights or 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 pre-1971 National
Wildlife Refuges were not available, but in-lieu selection rights were provided to
substitute for such lands.48 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 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 depicted the large part of the Refuge
designated as “wilderness,” and by default the remainder of the Refuge is the coastal
plain. This map has now disappeared.
An agency map dated 1980 shows the boundaries of the KIC lands with those
boundaries crossed out by hand, but without explanation of when and by what
authority these marks appeared or what their intended significance was with respect
to whether the KIC lands, and whether they were regarded as being within the coastal
plain. Other maps also show the Refuge as a whole with the wilderness area so
marked, again arguably showing the coastal plain as the remainder.
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
46 Section 22(g), 43 U.S.C. § 1621(g).
47 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.
48 43 U.S.C. § 1611(a)(1).
Congress.49 The map published with the notice of the legal description of the
boundaries of National Wildlife Refuges in Alaska50 shows the Arctic National
Wildlife Refuge as a whole, the wilderness area within it, and the coastal plain as the
remainder. It does not show the native lands. The legal description of the boundaries
of the coastal plain published on April 19, 1983 as Appendix I to the final rule on
exploration of the coastal plain (50 C.F.R. Part 37), 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.”51 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 non-public lands (i.e. conveyed Native (or state) lands) are not
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
defined Coastal Plain, 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, as possibly modified by the other sections of
ANILCA discussed above.
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 A township contains 23, 040 acres.
50 48 Fed. Reg. 7936, 7980 (February 24, 1983).
51 48 Fed. Reg. 16838, 16841, 16869 (April 19, 1983).
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
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 elsewhere in Alaska 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 the52
coastal plain, the ASRC lands, or both, for such development. Conversely, if
Congress opens the coastal plain to development, 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 198453 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
52 Provisions B-1 and B-2 at 5-6 of Appendix 2 of the 1983 Agreement.
53 See P.L. 98-366, 98 Stat. 468, 471.
applicable authority, be deemed conveyed and received pursuant to exchanges
under section 22(f) of the Alaska Native Claims Settlement Act, as amended (43
U.S.C. 1601, 1621(f).
The committee report accompanying this act states that one purpose of the act
is to “ratify certain land exchanges and other agreements ....”54 It also states that
lands received by ASRC are to be regarded as though they had been obtained by an
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 so55
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.56
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
54 H.Rept. 98-843 at 1 (1984).
55 Ibid., p. 7.
56 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.
resources of the coastal plain of ANWR57 by presenting Congress with exchanges
that might result in pressure to open the Refuge. As a result, Congress addressed the
issue in 1988.
1988 ANILCA Amendment. In 1988, Congress legislated to prevent any
more exchanges by amending the general exchange authority in ANILCA that had
been used as authority to complete the 1983 Agreement:
Nothing in this Act or any other provision of law shall be construed as
authorizing the Secretary to convey, by exchange 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 Act58
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
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 plain59
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:
57 See, e.g. the GAO Report: GAO/RCED-88-179 (September, 1988), Consideration of
Proposed Alaska Land Exchanges Should Be Discontinued.”
58 P.L. 100-395, 102 Stat. 979, 981, amending § 1302(h) of ANILCA; 16 U.S.C.
59 H.Rept. 100-262, Part 1 at 7-8 (1987).
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 validly60
selected prior to July 28, 1987.
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.”61
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.”62
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.63 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.64
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
60 Ibid., pp. 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.
61 S.Rept. 100-302 at 3 (1988).
62 Mackey v. Lanier Collection Agency & Serv., 486 U.S. 825, 840 (1988) (quoting United
States v. Price, 361 U.S. 304, 313 (1960).
63 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-381 (1969).
64 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
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.65 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.
Allotments. 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 many allotments has been completed; other lands have
been applied for, but may not be approved. BLM has compiled the locations,
acreage, and status of 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.
Allotments conveyed under the provisions of ANCSA 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 the66
United States reserved any oil and gas.
P.L. 108-337, the Alaska Native Allotment Subdivision Act,67 authorizes the
subdivision and dedication of “restricted lands” (allotments) with the same effect as
65 58 Fed. Reg. 14323 (March 17, 1993).
66 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.
67 118 Stat. 1357.
if the restricted land were held in unrestricted fee simple title. This could facilitate
the development of allotments once the Refuge is opened and more uses for the
allotments become possible.
(B). Current Bill Provisions and Issues.
(1). Conveyances to KIC. Section 2211(1) of H.R. 6 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 Agreement, and §2211(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. 6 addresses oil development activities in the coastal plain/1002 area, and would
provide some environmental controls. It is unclear to what extent the Native lands
will be subject to the same or similar controls — whether whatever constraints are
placed on the federal Refuge lands would also pertain to the Native lands within the
Refuge, or, if not, what other constraints on environmental effects and development
facilities might apply to the Native lands. These issues are vitally important to
understanding the possible overall effects of oil development on the Refuge.
In considering this question, the various Native property interests must be
considered separately: 1) the interests of KIC in the surface estate of lands, within the
coastal plain and the Refuge as a whole; 2) the interests of ASRC in the subsurface
(and related use of the surface), within the coastal plain and the Refuge; and 3)
individual allotments in the coastal plain and Refuge.
As discussed above, one township of KIC lands is in the defined Coastal Plain;
three townships are outside the defined Coastal Plain; all are on the geographical
coastal plain and within the boundaries of the Refuge as a whole.
Currently, ASRC has rights to the subsurface beneath the KIC lands and beneath
allotments, 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 lands and provide that its terms will govern unless superseded by statutory or
regulatory provisions. Although ASRC holds the subsurface estate, the owner of a
mineral estate typically has the right to use as much of the surface as may be
reasonably necessary to reach and remove the minerals.68 The term “ASRC lands”
defined in the 1983 Agreement reflects this fact by defining their subsurface estate,
as including “as the context requires” the surface of such lands.69
Appendix 2, Part B, governs exploration activities and contains many
environmental provisions. Paragraph B.9 of the Agreement states that development
68 54 AM. JUR. 2d Mines and Minerals, § 210.
69 1983 Agreement, Appendix II, A-2(c).
and production activities undertaken “on ASRC lands” will be in accordance with
statutory and regulatory requirements. Specifically development on ASRC lands
(surface and subsurface):
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
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).
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
any bills applicable to the coastal plain arguably would apply to development of all
ASRC lands, both within the coastal plain and outside it.70 The same standard — the
avoidance of significant adverse effects — is used in the 1983 Agreement and in both
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. H.R. 6 leaves 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 on exploration, and will apply to development and production. To
whatever extent the congressional acts and administrative regulations do not clearly
supersede the 1983 Agreement, it appears that the terms of the agreement will govern
oil exploration on the ASRC lands. Paragraph B.9 of Appendix 2 (pp. 28-29) states
that certain provisions in Paragraph B.3(c) - (m) — that set out an approval process
for a “plan of operations” for oil exploration — will remain in effect.71 This
70 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.
71 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
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 exploration under which if the Regional Director
of Fish and Wildlife Service and ASRC disagree as to whether a part of a proposed
plan would significantly adversely affect the wildlife, habitat, or environment of the
ASRC lands or Refuge lands or would 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 oil and gas exploration on Native lands. Also, if other
terms are not superseded, some Agreement provisions that were intended as “state
of the art” environmental constraints in 1983 but which are less desirable standards
today, may pertain. 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 regulations on exploration 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. 6 does not clarify how it relates to the 1983 Agreement with ASRC; it does
not expressly provide that any of its environmental constraints supersede the
provisions of that Agreement, and therefore, arguably, the provisions of the
Agreement on oil and gas exploration apply, unless changed in the regulations, and
so does the general provision that activities on ASRC lands will be covered by the
statutory and regulatory constraints applicable to federal oil and gas activities.
Specific issues may arise, however. For example, the applicability of the 2,000
acre surface footprint limitation on the Coastal Plain is not clear. ASRC agreed in
the 1983 Agreement to be bound by substantive statutory and regulatory requirements
“designed to protect the wildlife, its habitat, and the environment of the coastal plain,
or the ASRC Lands, or both.” The 1983 Agreement defines “coastal plain”
interpretation is more likely the correct one. Given the importance of this issue, Congress
may wish to clarify this point.
essentially in the same way as does H.R. 6. Therefore, at least one township of
ASRC lands is within the defined Coastal Plain and arguably subject to the 2,000
acre limitation on any surface use. If so, how a decision might be made as to how to
allocate the 2,000 acres among federal and ASRC lands in the Coastal Plain is
An argument can also be made that development on all of ASRC lands is
subject to the 2,000 acre limit in that Paragraph B.9 states that development “on
ASRC Lands” shall be in accordance with ... requirements to protect the wildlife and
The 2,000 acre limit does not appear to apply to surface development on Native
lands outside the defined Coastal Plain that is not associated with development of
ASRC lands — e.g. surface use and development on KIC lands that serves federal
oil and gas development in the Coastal Plain through support facilities, ports, dumps,
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.
(3). 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
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 use of the public lands within a refuge and
separate regulations should govern what could be done by Natives on their lands.
The latter regulations should also reflect the fact that the Native lands had been
conveyed under a statute (ANCSA) to accomplish a settlement “in conformity with
the real economic and social needs of the Natives” and with their maximum
This interpretation — that separate regulations are 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
72 Opinion to the Director, Bureau of Sport Fisheries and Wildlife from the acting Associate
Solicitor for Conservation and Wildlife, September 11, 1973.
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
the Department of the Interior concluded — before the enactment of the Barrow
statute in 1984 — that special regulations applicable to Native lands in refuges are73
appropriate to implement 22(g).
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
The new compatibility regulations address §22(g) lands and state that
compatibility determinations for those lands are to be made in compliance with the
requirements stated in the regulations, several of which are relevant to this report.
Notably, the regulations state, for example, that only the effects on refuge lands that
result from a use made on Native lands, not the use on the Native lands itself, will be
considered, and that the Refuge management plan will not include the Native lands:
(1)(I) Refuge managers will work with 22(g) landowners in implementation of
these regulations. The landowners should contact the Refuge Manager in
advance of initiating a use and request a compatibility determination. After a
compatibility determination is requested, refuge managers have no longer than
ninety (90) days to complete the compatibility determination and notify the
landowner of the finding by providing a copy of the compatibility determination
or to inform the landowner of the specific reasons for delay. If a refuge manager
believes that a finding of not compatible is likely, the Refuge Manager will
notify the landowner prior to rendering a decision to encourage dialog on how
the proposed use might be modified to be compatible.
(ii) Refuge managers will allow all uses proposed by 22(g) landowners when the
Refuge Manager determines the use to be compatible with refuge purposes.
(iii) Compatibility determinations will include only evaluations of how the
proposed use would affect the ability of the refuge to meet its mandated
73 See Memorandum from Attorney, Office of the Regional Solicitor, Alaska Region to the
Regional Director, Alaska Region, Fish and Wildlife Service, February 17, 1983.
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
(vi) Compatibility determinations for 22(g) lands that a use is compatible are not
subject to re-evaluation unless the use changes significantly, significant new
information is made available that could affect the compatibility determination,
or if requested by the landowner.
(vii) Refuge comprehensive conservation plans will not include 22(g) lands and
compatibility determinations affecting such lands will not be automatically re-
evaluated when the plans are routinely updated.
(viii) Refuge special use permits will not be required for compatible uses of
22(g) lands. Special conditions necessary to ensure a proposed use is compatible
may be included in the compatibility determination and must be complied with
for the use to be considered compatible.
(g) Except for uses specifically authorized for a period longer than 10 years
(such as rights-of-ways), we will re-evaluate compatibility determinations for all
existing uses other than wildlife-dependent recreational uses when conditions
under which the use is permitted change significantly, or if there is significant
new information regarding the effects of the use, or at least every 10 years,
whichever is earlier. In addition, a refuge manager always may re-evaluate the
compatability (sic) of a use at any time.
(h) For uses in existence on November 17, 2000 that were specifically
authorized for a period longer than 10 years (such as rights-of-ways), our
compatibility re-evaluation will examine compliance with the terms and
conditions of the authorization, not the authorization itself. We will frequently
monitor and review the activity to ensure that the permittee carries out all permit
terms and conditions. However, the Service will request modifications to the
terms and conditions of these permits from the permittee if the Service
determines that such changes are necessary to ensure that the use remains
compatible. After November 17, 2000 no uses will be permitted or re-
authorized, for a period longer than 10 years, unless the terms and conditions for
such long-term permits specifically allow for modifications to the terms and
conditions, if necessary to ensure compatibility. We will make a new
compatibility determination prior to extending or renewing such long-term uses
at the expiration of the authorization. When we prepare a compatibility
determination for re-authorization of an existing right-of-way, we will base our
analysis on the existing conditions with the use in place, not from a pre-use74
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. 6 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.
(4). Allotments. Allotments, it will be recalled, are lands to which individual
Native Americans have full or partial title. In most, if not all instances, the United
States retained the oil and gas and coal beneath allotments, but the surface is in non-
federal ownership and can be developed. Allotments within the Refuge were not
subject to the requirement of § 22(g) of ANCSA that uses on Native lands chosen
under that act must comply with the regulations of the Refuge, but under the 1983
Agreement, ASRC received the subsurface beneath most allotments in the Refuge75
and agreed to be bound by 22(g) in its development of them.
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 or direct drilling development. 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, but outside the defined Coastal Plain, and in the Sadlerochit Spring area. BLM
advises that 9,797 allotment acres have been conveyed in the Refuge and another
Other statutes relating to the management of environmentally sensitive federal
conservation units have provided for regulation of valid existing rights and
inholdings. For example, the Wilderness Act authorizes mineral leasing under “such
reasonable stipulations as may be prescribed by the Secretary of Agriculture for the
protection of the wilderness character of the land consistent with the use of the land
for the purposes for which they are leased ....”76 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 of77
As discussed above, P.L. 108-337 authorizes the subdivision and virtual
conveyance of allotments as if they were held in fee simple.
74 50 C.F.R. § 25.21 at 65 Fed. Reg. 62481-62482.
75 Appendix I-1.
76 16 U.S.C. § 1133(d).
77 16 U.S.C. § 1902.
H.R. 6 does not address allotments within the Refuge at all — e.g., by providing
for regulated use, or for buying them out, etc.
(5). Timing. Section 2203(b)(1) of H.R. 6 would repeal the § 1003 prohibition
against oil and gas development in the Refuge, thereby allowing such development,
but would 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 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
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 2210(a) of H.R. 6 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.” (Emphasis added.) However, access to
develop the oil and gas for transportation is not dealt with expressly. Subsection (b)
of § 2210 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 may be more
protective than that in H.R. 6.
The rights of way language in H.R. 6 addresses only the transportation of oil and
gas under the MLA, which section relates only to pipelines. H.R. 6 does not address
access to the areas or other forms of rights of way that might be needed. Any use of
the surface of the federal lands is a “right of way.” 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 situations. 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 H.R. 6 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 § 2210(a) states only
that Title XI of ANILCA does not apply to the issuance of pipeline rights of way.
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 these provisions could come into play may depend on how the management
division between BLM and FWS is interpreted. Arguably too, rights of way could
be addressed in the regulations authorized by § 2203, but it is unclear what statute
would provide that authority.
H.R. 6 does not address access to the Native inholdings in the Refuge, but 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.78
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 other79
values of such lands.
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
easem ent s . 80
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
of Valdez. If so, then the oil normally could be exported. However, § 2206(a)(8)
would require ANWR leases to prohibit export of oil produced under the lease.
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 a Supplement or a new EIS should be prepared. A court in a declaratory81
judgment action in 1991 held that the DOI should have prepared a Supplemental
Environmental Impact Statement (SEIS) at that time to encompass new information
78 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, if BLM would be administering leasing in the Refuge, rather than
managing the Refuge lands under FLPMA, this ANILCA access provision appears not to
79 16 U.S.C. § 3170(b).
80 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
wilderness, ... by means which have been or are customarily enjoyed with respect to other
such areas similarly situated.”
81 NRDC v. Lujan, 768 F. Supp. 870 (D.D.C. 1991).
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.
Section 2203(2) of H.R. 6 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 §
2203(c)(3) of H.R. 6, the Secretary is directed to prepare an 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. 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 environmental analysis, and the
Secretary may only consider public comments that specifically address the preferred
action. The analysis on the first lease sale is to be completed within 18 months of
enactment. Compliance with paragraph (c)(3) is stated as satisfying all requirements
for consideration and analysis of environmental effects. However, paragraph (c)(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 2207(b)(1) of H.R. 6, requires a site-specific analysis to study the effects
of any drilling or related activities, which analysis arguably must be an EIS under the
V. Judicial Review.
H.R. 6 contemplates prompt action to put a leasing program in place and
expedites judicial review. Section 2208 of H.R. 6 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. Section 2208(a)(1) requires filing of any challenge to the leasing title or
to any action of the Secretary under the title in “any appropriate district court,” yet
§2208(a)(2) requires filing of challenges to an action of the Secretary only in the U.S.
Court of Appeals for the District of Columbia. The section 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, §2208 of H.R. 6 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, 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,82 but appears to be intended to make overturning a
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
Under § 35 of the Mineral Leasing Act (MLA),83 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.84 Section 28(b) of the Alaska Statehood Act again
amended the MLA to change the references from the territory of Alaska to State of
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.86 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.87
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
82 See Charles H. Koch, ADMINISTRATIVE LAW AND PRACTICE, § 10.8 (2d ed. 1997).
83 Act of February 25, 1920, ch. 85, 41 Stat. 450, 30 U.S.C. §191.
84 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.
85 P.L. 85-508, 71 Stat. 339, 351.
86 P.L. 94-579, 90 Stat. 2743, 2770-2771.
87 H.Rept. 94-1724 at 62 (1976).
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.”88
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.89 Because of these
findings, the court also granted the government’s motion for summary judgment on
the takings claim. Although this case was in the context of the power of the United
States to pay administrative costs before dividing MLA revenues with Alaska,
arguably the same analysis of the provision in question would apply to a direct
challenge to the authority of Congress to change the revenue shares under a particular
statutory leasing regime as opposed to paying 90% as stated in the Statehood Act.
If the Statehood Act simply means that Alaska will be treated like other states
under the MLA, the question may be asked whether Congress may legislate specially
as to ANWR and prescribe different revenue-sharing provisions in that particular
leasing context. Congress has directed a different split in the past with respect to
leasing under particular statutes, e.g., the National Petroleum Reserves, in which
situation all of the revenues go into the federal Treasury,90 and the National
Petroleum Reserve in Alaska, in which instance the revenue sharing is 50/50.91
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, or be divided in some other way Congress specifies.
Issues may remain, however, because of the wording of the current bills.
Section 2203(a) of H.R. 6 states that the leasing program is to be under the
MLA, yet § 2209 states that “[n]otwithstanding any other provision of law” 50% of
88 Alaska v. United States, 35 Fed. Cl. 685, 701 (1996).
89 Ibid., p. 706.
90 10 U.S.C. § 7433.
91 P.L. 96-514, 94 Stat. 2964, 42 U.S.C. § 6508.
revenues are to be paid to Alaska. Given that leasing is to be under the MLA,
whether the revenue splitting language validly overrides the provisions in the Alaska
Statehood Act is not clear. If not, and the language is stricken, a court would then
be faced with severability questions, and the validity of the rest of the bill could be
at issue. H.R. 6 has no severability section, so a court might strike the revenue
splitting language, in which case the court would have to decide whether the usual
MLA 90/10 split should again pertain, or the court could strike the revenue language
and also decide whether Congress would have enacted the legislation without the
new revenue provisions. If a court concludes that Congress would not have done so,
the entire title might fall.
Section 2212 of H.R. 6 establishes a Local Government Impact Aid and
Community Service Assistance Fund for the Secretary to provide assistance to
eligible entities. The Fund is capped at $11 million, but under § 2212(e), $5 million
is authorized to be appropriated to the Secretary for each fiscal year