Legal Issues Related to Proposed Drilling for Oil and Gas in the Arctic National Wildlife Refuge (ANWR)
Released: 2005-05-04T00:00:00

Introduction

Congress is currently considering whether to permit drilling for oil and gas in the coastalplain of the Arctic National Wildlife Refuge (ANWR), to designate the area as wilderness, or toretain the status quo of maintaining the Refuge without drilling. (1) Current law prohibits theproduction of oil and gas in the Refuge, but high prices for oil and natural gas have renewed debateover 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 PlainDomestic Energy, opening the Refuge to oil and gas development. On April 28, 2005, both theHouse and Senate agreed to H.Con.Res. 95 , a budget resolution that may necessitateoil and gas drilling in the Refuge to meet the budget reconciliation targets, and could permitlegislation on such drilling to be enacted on a simple majority vote, without the possibility of afilibuster. (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 arecentral to the debate on whether to open the Refuge to drilling. Attention has focused on Â§2207(a)(3) of H.R. 6, that would impose a 2,000 acre limit on the surface of the Coastal Plain thatcan be covered with support structures associated with oil and gas development. However, this limitmay not apply to some or all of the more than 100,000 acres of Native lands in the Refuge. Legalissues that relate to possible development of the Refuge and the recent proposals regarding possibleleasing in ANWR are discussed in this report. This report will be updated as circumstances warrant.

Background

The Arctic National Wildlife Refuge is managed by the United States Fish and WildlifeService (FWS) and consists of approximately 19 million acres located at the Northeast corner ofAlaska directly adjacent to Canada. The coastal plain of the Refuge on the Beaufort Sea isapproximately 1.5 million acres and is the part of the Refuge that is richest in wildlife and migratorybirds, including the Porcupine caribou herd, polar bears, musk oxen, eagles, snow geese, and manyothers. The coastal plain is directly east of Prudhoe Bay, a state-owned oil field that has provideda large volume of oil, and many experts believe that significant deposits of oil and natural gas mayexist under the Refuge as well. The presence of biological and wilderness values together with thepotential for large hydrocarbon deposits results in the current controversy over whether to allow oildrilling in the Refuge.

All lands on the North Slope were withdrawn January 22, 1943, by PLO 82. (4) In November 1957, anapplication for the withdrawal of lands to create an Arctic Wildlife Range was filed to protect thearea's wealth of wildlife and migratory birds. Under the regulations in effect at that time, thisapplication "segregated" the lands in question, removing them from disposal. This fact wasimportant 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 Secretaryof the Interior issued Public Land Order 2214, reserving the area as the Arctic National WildlifeRange. (5)

The Supreme Court has held that the initial segregation of lands before statehood wassufficient to prevent the passage of ownership of certain submerged lands within the Refuge to theState of Alaska at statehood. (6) If this ruling had been in favor of Alaska, certain lands beneath therivers in the coastal plain might have belonged to the state, which could have developed theresources in them, including the oil, gas, gravel, and water.

In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA) (7) to resolve Native claimsagainst the United States. This act provided the opportunity for the selection and conveyance oflands 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 Corporationswithin each Region. Usually, the Regional Corporations could receive the lands beneath the VillageCorporations in their area, but subsurface lands beneath pre-1971refuges were not available, andin-lieu lands were substituted for them. Under Â§ 22(g) of ANCSA, surface lands conveyed in suchrefuges were subject to the regulations applicable to the particular refuge of which they were a part.

In 1980 Congress enacted the Alaska National Interest Lands Conservation Act(ANILCA), (8) which,among other things, renamed the Range (9) to be the Arctic National Wildlife Refuge, and expanded the Refugeto include an additional 9.2 million acres, mostly to the south. (10) Section 702(3) ofANILCA designated much of the original Range as a wilderness area, but did not include the coastalplain. Instead, Congress postponed decisions on the development or further protection of the coastalplain. Section 1002 of ANILCA directed that all of the resources of the coastal plain of the Refugebe studied. (As a result, the coastal plain is sometimes referred to as the "1002 area.") The 1002area was administratively articulated as excluding the three townships of land belonging to theKaktovik 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 Â§ 1431(g) of ANILCA, KIC was entitled to receive approximately 19,588 additionalacres 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 "leasingor other development leading to production of oil and gas from the range" unless authorized by anact of Congress. (11)

In 1983 the United States and the Arctic Slope Regional Corporation (ASRC), a NativeRegional Corporation, executed an agreement ("the 1983 Agreement") embodying an exchange oflands under which ASRC would receive title to the subsurface estate beneath the KIC surface landsin 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 unlessCongress opens ANWR, the ASRC lands, or both to oil development. Conversely, if Congressopens ANWR, then the more than 92,000 acres of Native lands (KIC surface/ASRC subsurface) inthe four townships within the Refuge could be developed. These extensive Native holdings wouldbe affected by the authorization of oil and gas development on the coastal plain, and, in turn, couldalso affect the Refuge and its resources. In addition, there are individually owned Native allotmentswithin the Refuge that might be developed if oil and gas drilling is allowed. All types of Nativelands within the Refuge total more than 100,000 acres. The separate environmental constraints ofthe 1983 Agreement on ASRC's exploratory activities apply unless they are superseded by statuteor regulations, and ASRC also agreed to be bound by regulations on federal leases that are designedto protect the environment of the coastal plain. Whether particular limitations, such as the 2,000 acrelimit, would apply is not clear at this time.

As interest in the possible leasing of the coastal plain has increased, review of several legalaspects of possible drilling in the Refuge appears timely.

Issues

I. Environmental Constraints.

One of the most controversial aspects of any consideration of possible leasing in the Refugeis what the environmental effects of leasing are likely to be. There have been vigorous assertionson both sides -- either that the bills that have been considered are highly protective of theenvironment, or that they are not. Hence the environmental aspects of any bills are of particularinterest. Some of the most critical elements in an analysis of environmental provisions of any billsare: 1) the agency that would administer the leasing program; 2) the compatibility of leasing withthe purposes of the Refuge; 3) the standard for environmental protection and how might it functionin practice; 4) the level of industrial technology required; 5) the protections that would be statutorilyprovided with respect to the wildlife resources of the Refuge; 6) compliance with the NationalEnvironmental Policy Act; 7) the 2,000 acre "footprint" limitation; and 8) the extent to whichadministrative 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 adiscussion of possible environmental constraints on Native lands, see "Native Lands" below.

(A). Administration of Leasing. Under theNational Wildlife Refuge System Administration Act (Refuge Administration Act) on themanagement 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 addedby Congress in 1976 to clarify that management of refuges could not be administratively assignedto 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 governed by the refugeplanning provisions of ANILCA, (14) and Â§ 304(g) of ANILCA provides planning procedures forrefuges in Alaska and other provisions on refuge management.

Under current law applicable to non-Alaskan refuges, when evaluating whether to approvean 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 andthe particular unit were created. Longer-term uses must be compatible with all the purposes, majoror otherwise, of both the System and the particular unit. (16 U.S.C. Â§ 668dd(d)). Under Â§ 304 ofANILCA, the Secretary is authorized to enter into cooperative management agreements with NativeCorporations, the state, or political subdivisions of the state with respect to lands within, adjacentto or near any national wildlife refuge, which agreements shall provide that the land subject to theagreement shall be managed by the owner or occupant in a manner compatible with the majorpurposes of the refuge. Section 304 of ANILCA also generally withdraws all public lands includingwhatever submerged lands, if any, were retained in federal ownership at the time of statehood, butdoes not withdraw them from the operation of mineral leasing laws. Similarly, the RefugeAdministration Act does not withdraw non-Alaskan refuges from possible oil and gas leasing, butmany individual units are so withdrawn and leasing is allowed on very few.

Also with respect to refuges in Alaska, the Refuge Administration Act expressly subjectsresource management by any other agency of the federal government under cooperative agreementsto 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 FederalGovernment exercises administrative responsibility through cooperative agreement shall remain ineffect, subject to the direct supervision of the United States Fish and Wildlife Service, as long assuch agency agrees to exercise such responsibility. (15)

Although the Bureau of Land Management (BLM), another agency also in the Departmentof the Interior, is currently the general mineral development manager for the United States, (16) the Mineral Leasing Actdoes 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 onrefuge lands and reserve considerable authority to the Director of FWS with respect to oil and gasleasing in Refuges:

(a)... Sole and complete jurisdiction over such lands forwildlife conservation purposes is vested in the Fish and Wildlife Service even though such lands maybe subject to prior rights for other public purposes or, by the terms of the withdrawal order, may besubject to mineral leasing.

(b)... [t]here is to be no drilling or prospecting underany mineral lease heretofore or hereafter issued on lands within a wildlife refuge except with theconsent and approval of the Secretary with the concurrence of the Fish and Wildlife Service as tothe time, place and nature of such operations in order to give complete protection to wildlifepopulations and wildlife habitat on the areas leased, and all such operations shall be conducted inaccordance with the stipulations of the Bureau on a form approved by the Director [of the NationalWildlife Refuge System]. (17)

This protective posture is repeated in another regulation that provides:

Leases shall be issued subject to stipulations prescribedby the Fish and Wildlife Service as to the time, place, nature and condition of such operations inorder to minimize impacts to fish and wildlife populations and habitat and other refuge resources onthe areas leased. The specific conduct of lease activities on any refuge lands shall be subject tosite-specific stipulations prescribed by the Fish and Wildlife Service. (18)

Under current regulations, refuges in Alaska that are open to leasing are not to be availableuntil the FWS has first completed compatibility determinations. (19) A new compatibilitypolicy and new regulations were published on October 18, 2000, and became effective November17, 2000. (20) "Compatible use" is defined as a "proposed or existing wildlife-dependent recreational use or anyother use of a national wildlife refuge that, based on sound professional judgment, will not materiallyinterfere with or detract from the fulfillment of the National Wildlife Refuge System mission or thepurpose(s) of the national wildlife refuge." (21) As will be discussed, Native lands in Alaskan refuges that aresubject to certain restrictions under Â§ 22(g) of ANCSA are expressly subject to the specialregulations 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 Â§ 1003 of ANILCA reserved to itself the decision of whether to lease the coastal plainarea. (23) The current billswould authorize oil and gas leasing and address both management and compatibility.

H.R. 6 states in Â§ 2203(a) that leasing is to be under the Mineral Leasing Act(MLA) (24) andadministered by the Secretary of the Interior acting through the Director of the Bureau of LandManagement (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 leasingis in a refuge. Because there is no reference to the usual powers of the Director of FWS, andbecause, under Â§ 2203 of H.R. 6 the Secretary is to impose environmental constraints through newleasing 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 coastalplain area under Â§ 1002 of ANILCA to the United States Geological Survey rather than to FWS tobe unlawful because the Refuge Administration Act requires that the Refuge System be administeredby the Secretary of Interior through FWS, absent a clearly expressed legislative intent to thecontrary. (25) H.R. 6 expressly assigns leasing responsibilities to the BLM "in consultation with theDirector of [FWS]." Arguably, placing BLM in charge of the leasing program for ANWR andevidently reducing the otherwise applicable role of FWS could divorce the mineral developmentaspects from the biological/wildlife purposes and the expertise of FWS personnel, and may resultin the coastal plain of ANWR receiving less protection than lands in other refuges do under currentlaw and regulations. However, the bill does not expressly modify the usual authority of FWS tomanage and protect the Refuge resources and to condition mineral leases. Therefore, an argumentcan be made that FWS retains that authority, and would develop the environmental constraints onsurface disturbance in the leasing regulations. However, the intent of Congress in this regard is notclear. As the legislation evolves, the respective jurisdictions of BLM and FWS in this context maybe clarified.

Both the 1983 Agreement and many past bills in Congress continued responsibility forANWR leasing with the FWS, subject to congressionally enacted direction. Pursuant to Â§1002 ofANILCA, the FWS adopted regulations (see 50 C.F.R. Part 37) governing the exploratory activitiesthat 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, theoil and gas leasing program and activities authorized in that section are deemed to be compatiblewith the purposes for which the Arctic National Wildlife Refuge was established, and that no furtherfindings or decisions are required to implement this determination. (Emphasis added.) Thisprovision both answers the compatibility question and appears to eliminate the usual compatibilitydetermination processes for purposes of refuge management. It does not, however, resolve allambiguities as to what extent and by whom impacts resulting from activities occurring on federaland Native lands may be regulated. (See Native Lands section below.) Also, the general statementthat leasing "activities" are compatible arguably may encompass a great many actions such asconstruction and operation of port facilities, staging areas, personnel centers, etc.

(C). Environmental Standard. H.R. 6 uses "no significant adverse effect" on fish and wildlife, their habitat, subsistence resources, andthe environment as the standard to guide leasing. This phrase is not defined, but has been used inthe past. It was used in Â§ 1002 of ANILCA as the standard for the limited exploration of the coastalplain allowed under that section, it is used throughout the 1983 Agreement, in past bills that wouldhave authorized leasing in ANWR and it is used with respect to leasing in the NPRA. (26) Arguably, it could be seenas analogous to the standard used in the National Environmental Policy Act (NEPA), which is"significant effect on the quality of the human environment." (In practice this has been interpretedas addressing only significant adverse effects.) Although the contexts are different, judicialinterpretation of NEPA may provide guidance in applying the standard.

The standard of significant adverse effects might allow considerable environmental harmbefore the threshold is crossed. Although the standard has been used before, Congress has alsochosen other, more protective, language at times. For example, the language Congress used withrespect to exploration in environmentally sensitive areas of the National Petroleum Reserve - Alaskawas to "assure the maximum protection of such surface values consistent with the requirements ofthis act for the exploration of the reserve." (27) Another example of other language Congress has used is theWilderness Act of 1964, which requires that mineral leases in wilderness areas "shall contain suchreasonable stipulations as may be prescribed by the Secretary of Agriculture for the protection of thewilderness character of the land consistent with the use of the land for the purposes for which theyare leased, permitted, or licensed. (28) A statute that addresses already existing mining rights in nationalparks requires that mining rights be "subject to such regulations prescribed by the Secretary of theInterior as he deems necessary or desirable for the preservation and management of those areas. (29) In ANWR, Congresswould be authorizing new leasing in a special statute, and hence would have greater latitude toimpose 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 andgas exploration, development, and production" and Â§ 2207(a)(2) would require that standard for all new exploration, development, and production operations. A computer search indicates that thephrase "best commercially available technology" is not currently used in the U.S. Code, and does nothave any available judicial interpretation. (30) Because it refers to technology that already is more widelyavailable, it may be a more lenient standard than "best available technology economicallyachievable," or "best practicable control technology" -- both of which standards are used in the CleanWater Act. (31) Section2203(a)(2) goes on to direct that the best commercially available technology standard be applied "ina manner that ensures the receipt of fair market value for the public for the mineral resources to beleased." 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 muchto the discretion of the Secretary. The evaluations of environment effects made by the Secretary, andthe particular actions taken by the Secretary in the exercise of the Secretary's discretion would beinsulated under Â§ 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 -- isrelevant to many of the provisions discussed in this part.

2,000 Acre Limitation. Section 2207(a)(3) of H.R. 6 contains an acreage limitation on surface area that can be covered by productionand support facilities. The language provides that the maximum amount of surface acreage coveredby production and support facilities, including airstrips and any areas covered by gravel berms orpiers for support of pipelines, not exceed 2,000 acres on the Coastal Plain. The reference to surfaceacreage "covered by" production and support facilities appears to exclude the parts of structures andfacilities that don't touch the ground, e.g. the pipes in elevated pipelines. Two thousand acres is asmall amount relative to the 1.5 million acre plain. However, given that the Secretary would berequired to lease not less than 200,000 acres in the first lease sale, a greater footprint might provenecessary, and this limitation would be changed. Also, it is likely that oil development facilitieswould not be in a single, consolidated footprint, but would be scattered over a much larger area andbe connected by pipelines and possibly roads that would impact a much larger area. (32) Equally important, if oiland gas were discovered in commercial quantities, it appears that support and development facilitiescould 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" below.

Special Areas. Section 2203(e) of H.R. 6 provides that the Secretary, "after consultation with the State of Alaska, City of Kaktovik, and theNorth Slope Borough," is authorized to designate up to a total of 45,000 acres of the Coastal Plainas "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 prohibitssurface occupancy by lessees. (33) This provision does not expressly require consultation with theFWS, 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.

This section would also impose an acreage limit of 45,000 acres (out of the 1.5 millioncoastal plain acres) that could be designated as Special Areas for optional special protection orclosure. The Secretary is directed to designate the Sadlerochit Spring area (approximately 4,000acres), as a Special Area, and to manage the Special Areas "to protect and preserve the area's uniqueand diverse character including its fish, wildlife, and subsistence resource values." The closureauthority in the bill is stated as being the sole source of closure authority. This might eliminate anyseparate authority under the Refuge Administration Act to close areas, and also raises the questionof whether closure is an available option if it is determined to be necessary to avoid jeopardizing aspecies under the Endangered Species Act. Possibly ESA-necessitated closures could exhaust theacreage available for closure, making that tool unavailable where closure is merely desirable to avoidharm, rather than being crucial to survival of a species.

Seasonal Closures. Section 2206(a)(2) provides thatthe 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 fishand wildlife, and Â§ 2207(d)(2) authorizes "[s]easonal limitations on exploration, development, andrelated activities, where necessary, to avoid significant adverse effects during periods of concentratedfish and wildlife breeding, denning, nesting, spawning, and migration," language that did notexpressly include the word "production." It is not clear what would have needed to be shown todemonstrate the necessity of seasonal closures, or to demonstrate effects sufficiently significant andadverse to justify closure. It also is not clear whether seasonal closure areas would have countedtoward the acreage limitation on closures, but probably they would not.

Environmental Regulations. Under Â§2203 of H.R. 6 , the Secretary is to develop regulations to govern the leasing of the coastal plainwithin 15 months of enactment, and under Â§ 2204(e)(1), the first lease sale is to be held within 22months after enactment. See the heading "NEPA Compliance" below for a discussion of the fact thatother bill provisions would eliminate comprehensive new environmental studies in order to achievethis accelerated leasing schedule.

The leasing regulations required under the House bill are required to include regulations thatrelate to the protection of the fish and wildlife, their habitat, subsistence resources, and theenvironment of the Coastal Plain. In addition, the Secretary is directed to impose terms andconditions on leases to address environmental concerns. The environmental provisions wouldundoubtedly provide some protections, but the net import of some of the provisions is unclear.

Under Â§ 2206(a)(6), environmental conditions could be a part of a lease "as required "pursuant to Â§ 2203(a)(2). (Emphasis added.) This language might mean only as required to avoid"significant adverse effects."

Reclamation. The reclamation standard inÂ§2206(a)(5) requires reclamation to a condition capable of supporting the uses which the lands werecapable of supporting prior to exploration or development or "upon application by the lessee, to ahigher or better use as approved by the Secretary." Under general zoning law, "higher or better" usesare those that "bring the greatest economic return." (34) Uses that are 'higher and better' than undeveloped wildlifehabitat could include many conditions.

Compliance with Other Laws. Section 2207(d) of H.R. 6 requires that the proposed regulations and lease conditions comply with allapplicable provisions of Federal and State environmental law, which would include a broad rangeof requirements. However, the applicable laws governing management of refuges might be modifiedby the legislation, as indicated. Section 2207(d)(1) requires protective standards "at least as effectiveas the safety and environmental mitigation measures set forth in items 1 through 29 at pages 167-169of 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 certainactivities may basically condone those activities -- e.g. the provisions that address roads and otherpermanent infrastructure facilities, incinerators, marine facilities, docks, causeways, etc. Althoughthe H.R. 6 language requires the new ANWR leasing standards to be "at least aseffective as" the 1987 measures and therefore allows more stringent measures, additional statutoryrequirements and guidance might provide clarity regarding some of those important infrastructuretopics and to guide development on both the federal and the Native Lands in the Refuge.

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 theenvironment. (See the discussion of NEPA Compliance below.) Section 2207(b)(2) requires thata 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 adverseeffects is clearly a protective posture. However, under Â§ 2207(b)(3) this plan is to be developed"after consultation with" the agency or agencies having jurisdiction over matters mitigated by theplan. Apparently, this last reference is to the FWS, which agency under current law has the authorityto develop and approve of such plans and activities, rather than merely to consult regarding them.

Exploration. Section 2207(d)(3) requires that exploration activities be limited to the winter and be "supported" by ice roads etc., but then alsoprovides that the Secretary may allow other exploration if the Secretary finds such exploration wouldhave no significant adverse effect on the fish and wildlife, their habitat, and the environment of theCoastal Plain. There is no similar requirement applicable to production activities.

Roads. Similarly, Â§ 2207(d)(4),(5),(7), and (12) relateto potential controls of roads, transportation, and air traffic disturbance, but no specific controls arespecified. Here too, the regulations depend on the Secretary's interpretation and wording of anyprohibitions. This is also true with respect to the requirements for "appropriate" controls onexplosives, sand and gravel extraction, etc.

Penalties. It may also be asked what penalties wouldbe 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 providesfor cancellation of leases for infractions, (35) and also provides civil and criminal penalties for leasingviolations, including failure to comply with lease terms. (36) Because of the ambiguity about the role of FWS regardingleasing activities, it was not clear whether the penalties usually available for infractions on refugelands would continue to apply. If so, these include fines and imprisonment. (37) Penalties for a specificviolation of another law, such as the Clean Air Act, arguably would still be available under that law.

(F). Possible Effects on International Polar BearAgreement. Beginning in the sixties, concern grew regarding the protection ofmarine 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 SovietSocialist Republics developed an international agreement on polar bear conservation. (38) This Agreement wasratified by the United States in 1976.

The Agreement prohibits the "take" of polar bears, which term is defined as "hunting, killingand capturing." (39) Article III sets out five exceptions to the taking prohibition, which a party to the Agreement mayallow. These exceptions include several relating to traditional take by a party's nationals; take forscientific purposes, for conservation purposes, or to prevent serious disturbance of the managementof other living resources.

Article II of the Agreement requires certain actions to protect habitat of the bears. Parties areto:

1) take "appropriate action to protect the ecosystem ofwhich polar bears are a part;"

2) give "special attention to habitat components suchas denning and feeding sites and migration patterns;" and

3) manage polar bear populations in accordance with"sound conservation practices" based on the best available scientificdata.

Recently, some critics have asserted that oil and gas development in the Arctic may beinconsistent with or violate the Agreement in that such development could result in the death of polarbears. A draft report to Congress raised questions in this regard. (40) One of the principal issuesraised is that the MMPA permits the unintentional taking of polar bears incidental to other lawfulactivities. The draft report asserts that such take would be inconsistent with the Agreement becausethere is no exception for such take in Article I or III and "if a lethal take were to occur duringactivities conducted under incidental take authority, the United States arguably could be consideredto not be in compliance with the Agreement." (41)

However, the argument can be made that all references to killing or taking polar bears in theAgreement, whether in the prohibition or the exceptions sections, are to intentional take. Given thisfact, the argument could continue, it is not inconsistent with the Agreement for an implementing lawto permit but regulate incidental take. That this could be an appropriate interpretation is bolsteredby the wording of the discussion accompanying the recommendation to ratify the Agreement, whichalso discusses only intentional takes -- whether through hunting, or for other specified reasons. (42) Furthermore, the StateDepartment, in presenting the Agreement to the President for transmission to the Senate for itsadvice and consent, took the position that the MMPA provided adequate domestic legislation toimplement 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 developmentprogressed in actuality, could violate the pledge by the United States to protect the ecosystem uponwhich the bears depend. (43) In such an eventuality recourse would be available to the otherparties 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 theAgreement, such that either the Agreement or the MMPA should be amended.

The Polar Bear Agreement does not authorizeincidental take within the polar bear protection zone. Such takes are authorized under section101(a)(5) of the MMPA. Because the Agreement does not now prohibit harassment, aninconsistency exists only to the extent such takes would be lethal, involve the capture of bears, orbe a product of habitat degradation or destruction. Because there is potential for polar bears to belethally taken incidental to activities such as oil and gas operations, it is necessary to either amendthe Agreement or to amend the MMPA to prohibit such takes if consistency with the Agreement isthe goal. Takes by harassment could still be allowed under the MMPA, consistent with theAgreement. (44)

(G). Discussion. There are no specificrequirements in H.R. 6 that address particular items of environmental concern, such asport and support facilities, airstrips, disposal of wastes, gravel mining, water sources, etc. Manydetails of the environmental constraints are left to the leasing regulations that are to be developedby the Secretary with very little advance study and little statutory guidance other than the avoidanceof significant adverse effects. The role of the FWS is ambiguous, but would be less than under itscurrent authority. Many decisions relating to the protection of the fish and wildlife resources of theRefuge and the protection of the environment in general would be committed to the discretion of theSecretary, acting through the Director of BLM, whose choices would be difficult to challenge underthe strict standards for judicial review. H.R. 6 would apparently rely principally on thepenalties available under the MLA. It is unclear whether the separate penalties for violations inrefuges would be available. Arguably, at the end of the potentially lengthy period of mineral leasingactivity, restoration of lands to current wildlife uses would not necessarily be required.

II. Native Lands.

Section 2203(b) of H.R. 6 would repeal Â§ 1003 of ANILCA, thereby permittingoil 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 wereadministratively excluded from the "Coastal Plain" as a defined term. Native lands in the Refugetotal over 100,000 acres, and although some of the most important elements in assessing the possibleimpacts of opening ANWR to leasing involve the property interests of Native-Americans in theRefuge, 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 termsof the Agreement are superseded by statute or regulations. Statutory and regulatory leasingrequirements designed to protect wildlife and the coastal plain would apply to development andproduction of ASRC oil, but it is not clear to what extent specific provisions, such as the 2,000 acrelimitation on the use of the surface within the Coastal Plain, would apply. Both Native individualsand Native Village and Regional Corporations have various interests relevant to the issue of oildrilling in ANWR.

(A). The Nature and History of Native Rights inANWR.

ANCSA. In 1971, Congress enacted the AlaskaNative Claims Settlement Act (ANCSA) to resolve Native aboriginal claims against the UnitedStates. ANCSA provided for monetary payments and also created Village Corporations that receivedthe right to select the surface estate to approximately 22 million acres of lands in close proximity tovillages. A village located in or adjacent to a refuge could select a certain amount of surface landswithin the refuge, (45) thereby maintaining traditional ways of life. Under Â§22(g) of ANCSA, lands chosen in pre-ANCSArefuges were subject to the laws and regulations governing the use of the refuge of which they werea part. (46) The KakovikInupiat Corporation (KIC), a Village Corporation in the Refuge, received selection rights to threetownships under ANCSA. (47)

ANCSA also created Regional Corporations which could receive subsurface rights to somelands and either surface rights or full title to others. The Regional Corporations typically wereentitled 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 selectionrights were provided to substitute for such lands. (48) Even though the shareholders of a Village Corporation sharedin the profits of the relevant Regional Corporation, the interests of a Regional Corporation inmaximizing the economic development of its subsurface estate may not always coincide with theinterests of a Village Corporation in possibly using the surface estate for subsistence hunting andother traditional uses.

ANILCA. The 1980 ANILCA contained manyprovisions 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 largefoam-board panel that shows the three ANCSA-authorized KIC townships marked in the samemanner as is the exterior boundary of the Refuge, but without any explanation of the intendedmeaning of the delineation. The boundaries of the pool of lands from which KIC selections couldbe made also is depicted, so the delineation could have been informational only, or could have beenintended to connote something more. The KIC lands are not differentiated by color from the rest ofthe 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 nowdisappeared.

An agency map dated 1980 shows the boundaries of the KIC lands with those boundariescrossed out by hand, but without explanation of when and by what authority these marks appearedor what their intended significance was with respect to whether the KIC lands, and whether theywere regarded as being within the coastal plain. Other maps also show the Refuge as a whole withthe 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 eachchange in land management status effected by this act and "each such description shall have the sameforce and effect as if included in this act ..." However, only minor boundary adjustments -- statedas an increase or decrease of not more than 23,000 acres -- were authorized, and only after notice inwriting to the Congress. (49) The map published with the notice of the legal description ofthe boundaries of National Wildlife Refuges in Alaska (50) shows the Arctic National Wildlife Refuge as a whole, thewilderness 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 AppendixI to the final rule on exploration of the coastal plain (50 C.F.R. Part 37), excludes the threeANCSA-authorized townships of KIC lands. The introductory material to the legal descriptionstates: "By virtue of the map referred to in section 1002(b)(1), [which as discussed above does notclearly exclude the native lands from the coastal plain] lands in which the surface estate has alreadybeen conveyed to Kaktovik Inupiat Corporation ... are excluded from the coastal plain, and therefore,a permit issued pursuant to Â§1002(b)(1) cannot authorize exploration of those lands." (51) However, at this time, thesubsurface was still federal and its development was subject to federal regulation. Further, it isimportant to note that geographically the KIC lands are on the coastal plain and are important to thewildlife of the area.

Section 103(c) of ANILCA states that only the public lands within the boundaries of anconservation system unit are deemed to be included as a portion of the unit, and that non-publiclands (i.e. conveyed Native (or state) lands) are not subject to the regulations applicable solely to thepublic lands within such units. This issue of separate regulations is addressed elsewhere in thisreport.

Under Â§ 1431(g) of ANILCA, KIC was authorized to obtain additional lands, and obtainedthe rights to a fourth township in the 1002 area. As a result, KIC has surface rights to threetownships along the coast of ANWR that are outside the defined Coastal Plain, and one townshipinside that area, all totaling approximately 92,160 acres. However, all of the KIC lands are withinthe Refuge as a whole and hence are subject to: 1) the restrictions on oil and gas development in Â§1003 of ANILCA; and 2) under Â§ 22(g) of ANCSA and Â§ 1431(g) of ANILCA, to the laws andregulations governing the Refuge, as possibly modified by the other sections of ANILCA discussedabove.

Section 1431(o) of ANILCA, captioned "Future Option to Exchange, etc.," authorized theArctic Slope Regional Corporation (ASRC), whose shareholders are Inupiat Eskimos, to obtainsubsurface rights beneath the KIC lands in ANWR upon the occurrence of certain events. ASRCcould obtain subsurface rights beneath lands belonging to villages in the National PetroleumReserve-Alaska or ANWR, if parts of those two areas within a certain proximity to Native villagelands 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 theKIC lands in the Refuge until ANWR was opened for commercial development. Furthermore, anyoil and gas development of ASRC interests would be subject to protective regulations "consistentwith the regulations governing the development of those lands with the Reserve or Range whichhave been opened for purposes of development ...."

1983 Agreement. However, instead of proceeding atsome future date with an exchange under the Â§1431(o) authority, then Secretary of the Interior JamesG. Watt on August 9, 1983 (four months after publishing the legal description of the 1002 area thatexcluded the KIC lands based on nonfederal mineral ownership), entered into an exchangeagreement (known as the "1983 Agreement" or the "Chandler Lake Agreement" after lands acquiredby the United States in the Gates of the Arctic National Park) using the general exchange authorityof Â§ 1302(h) of ANILCA. Under this Agreement, the United States received the surface rights tocertain 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 authorizingsuch development.

Section 1431(o)(4) of ANILCA provides that the Secretary may promulgate regulationsregarding the subsurface estates acquired pursuant to that subsection to protect the environmentalvalues of the Reserve or Range consistent with regulations governing the development of those landswithin the Reserve or Range which have been opened for purposes of development, including Â§22(g) regulations. However, that subsection of ANILCA did not apply to the ASRC exchange inANWR since a different exchange authority was utilized. Instead, the 1983 Agreement containedconsiderable detail relating to exploration and environmental issues, thereby making those featuresa matter of contract law. ASRC also agreed in the 1983 Agreement that Â§ 22(g) -- and hence Refugeregulations -- 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 1002area. One test well was drilled within the specified time, but the results of that well have been keptconfidential. However, full oil and gas development of the ASRC lands was prohibited until andunless Congress opened the coastal plain, the ASRC lands, or both, for such development. (52) Conversely, if Congressopens the coastal plain to development, the Agreement provides that ASRC may proceed withdevelopment of its subsurface interests.

The Barrow Gas Field Transfer Act. The Barrow GasField Transfer Act of 1984 (53) addresses several North Slope issues, primarily involvingexchange agreements involving the Point Barrow gas fields, including a 1984 agreement on thatsubject. It also refers to the August 9, 1983 Agreement (the ASRC/ANWR Agreement), stating inÂ§5(d):

All of the lands, or interest [sic] therein, conveyed toand received by Arctic Slope Regional Corporation pursuant to this section of the ASRC Agreementand pursuant to the August 9, 1983 agreement between Arctic Slope Regional Corporation and theUnited States of America shall, in addition to other applicable authority, be deemed conveyed andreceived pursuant to exchanges under section 22(f) of the Alaska Native Claims Settlement Act, asamended (43 U.S.C. 1601, 1621(f).

The committee report accompanying this act states that one purpose of the act is to "ratifycertain land exchanges and other agreements ...." (54) It also states that lands received by ASRC are to be regarded asthough they had been obtained by an ANCSA exchange:

Subsection (d) provides that all lands or intereststherein conveyed to the Arctic Slope Regional Corporation pursuant to this section or the RegionalCorporation's 1984 agreement and pursuant to the August 9, 1983 Agreement Between the ArcticSlope Regional Corporation and the United States are to be deemed conveyed and received pursuantto exchanges under section 22(f) of the Alaska Native Claims Settlement Act, as amended, inaddition to other applicable authority. The purpose of this subsection is to ensure that the lands andinterests in land received by Arctic Slope Regional Corporation in the two referenced exchanges aretreated as lands received under section 22(f) exchanges, thereby, for example resulting in theapplicability of subsection 21(c) and (d) [re taxation] and subsection 23(j) [re interim conveyancesand underselections] of the Alaska Native Claims Settlement Act, as amended to the lands andinterests in land so received. (55)

The floor debates in both the House and Senate are very brief and focus almost exclusivelyon the Barrow gas provisions and related exchange agreements. (56)

Arguably, if the exchange is made under Â§22(f) of ANCSA, the ASRC lands received underthe 1983 Agreement are subject to Â§22(g) constraints (those specifying that Native lands in refugesremain subject to the laws and regulations governing the refuge of which they are a part) as a matterof law, rather than being a matter of contractual obligation.

Subsequently, the Department of the Interior began negotiations with several other Nativecorporations and their oil company partners to develop other exchanges for subsurface rights inANWR. These actions raised the issue at the time of whether such exchanges were valid andwhether they would preempt the authority of Congress to make the decision of whether to lease anddevelop the oil and gas resources of the coastal plain of ANWR (57) by presenting Congresswith exchanges that might result in pressure to open the Refuge. As a result, Congress addressedthe issue in 1988.

1988 ANILCA Amendment. In 1988, Congresslegislated to prevent any more exchanges by amending the general exchange authority in ANILCAthat had been used as authority to complete the 1983 Agreement:

Nothing in this Act or any other provision of law shallbe construed as authorizing the Secretary to convey, by exchange or otherwise, lands or interest inlands within the coastal plain of the Arctic National Wildlife Refuge (other than land validly selectedprior to July 28, 1987), without prior approval by Act of Congress. (58)

The House Report addressed the validity of such exchanges, linked exchanges to the decisionof whether to open the Refuge to oil and gas development, and reiterated the control of Congressover whether the coastal plain would be opened for oil and gas development. The Report states:

The committee believes that, under current law, theSecretary of the Interior does not have authority to administratively exchange lands within the coastalplain of the Arctic National Wildlife Refuge, as defined in Section 1002(b) of ANILCA. Congressclearly reserved to itself the sole prerogative to make the decision as to whether ANWR would beopened to oil and gas development and, if so, under what terms and conditions. Section 1003 ofANILCA states:

Production of oil and gas from the Arctic NationalWildlife Refuge is prohibited and no leasing or other development leading to production of oil andgas from the range [sic] shall be undertaken until authorized by an Act ofCongress.

It is the Committee's view that the 96th Congress didnot intend the Secretary's general exchange authority under Section 1302(h) to apply to the coastalplain of ANWR. (59)

The Report goes on to discuss the fact that the Department continued to assert that it hadcomplete and unilateral authority to trade away oil and gas rights, to allow exploratory drilling, andto 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 groupsand their oil company partners for exchanges similar to the ASRC exchange of 1983, and hadconducted a "conditional auction" for oil and gas rights to 73 tracts in the coastal plain of ANWR. Then the Report discussed the intent of the new provision:

Title II and section 201 are designed to preserve thestatus quo and to permit, as ANILCA intended, Congress to decide the future status of the coastalplain on the merits. Section 201 makes it clear that the "mega-trades" or any other exchanges, aswell as any other prospective conveyances involving lands or interests in lands within the coastalplain may only be implemented after Congressional review and after securing legislative approvalby an Act of Congress. However, this section is not intended to effect [sic] lands validly selectedprior to July 28, 1987. (60)

This reiteration of Congress' authority to make the decision regarding oil and gas leasing inthe coastal plain of ANWR is repeated on p. 12 of the Report: "The Committee would note that thedecision of whether to open the Arctic National Wildlife Refuge for oil and gas development is adecision which Congress has reserved for itself."

The Senate Report repeats the language in the House report regarding the fact that Congressreserved to itself the right to decide if and when oil and gas leasing would be permitted in ANWRand 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 previousenactment) expressing an interpretation of a previous statute is not given much weight because, asthe Supreme Court has put it, "[t]he views of a subsequent Congress form a hazardous basis forinferring the intent of an earlier one." (62) However, the views of a later Congress incorporated into a laterstatute must be interpreted and applied, and are given great weight in statutory construction. (63) Still other statutes maybe premised on a particular interpretation of an earlier statute. If so, the interpretation may be giveneffect, especially if a contrary interpretation would render the amendments pointless orineffectual. (64)

The 1988 amendment to ANILCA seems somewhere between the latter two interpretivechoices. The 1988 direction that no more lands could be conveyed in the coastal plain withoutcongressional approval is stated as being premised on the fact that Congress reserved to itself, andreiterates the ANILCA authority, to make the decision regarding oil and gas development of thatarea. Exchanges like the 1983 one with ASRC were evidently regarded as predisposing the decisionprocess, and hence Congress stepped in to legislate that no further conveyances were to take placeunless and until Congress so authorized -- in order to preserve its view of Â§1003 of ANILCA. Thislater enactment and the reasons for it arguably are entitled to weight in interpreting whether anymodification of the ANILCA reservation of authority for Congress to decide the question of oil andgas development of the coastal plain has occurred with respect to ASRC.

Final Selections. On March 17, 1993, lands werewithdrawn by Public Land Order 6959 to allow KIC to make its final selections to complete its fourtownships in the Refuge. (65) Pursuant to Â§ 22(h)(2) of ANCSA and Â§ 1410 of ANILCA, theOrder made more lands available than was KIC's entitlement, thereby providing some flexibility asto choices. This larger quantity of lands desired by KIC had been identified initially in an agreementeffective January 22, 1993, before the PLO was issued. Those lands were withdrawn and, under theterms of the January agreement, KIC was then to have filed a selection application andsimultaneously submitted a prioritization of land choices from which conveyances could becompleted up to the amount of the entitlement.

Allotments. In addition to the KIC and ASRC Nativelands, there are also individual Native "allotments" within the coastal plain and elsewhere in theRefuge. Approval and conveyance of many allotments has been completed; other lands have beenapplied for, but may not be approved. BLM has compiled the locations, acreage, and status ofallotments and applications. It appears, based on a preliminary mapping, that allotments andapplications for allotments are clustered primarily along the coast and near Sadlerochit Spring, bothof which are considered vital wildlife areas. BLM reports that allotments range in size up to 160acres each and that approximately 9,797 acres have been conveyed, with an additional 1,719.66acres approved but still pending.

Allotments conveyed under the provisions of ANCSA are expressly for the surface estateonly. However, if a claimant qualified for and opted for a conveyance under previous statutes, thestatus of the mineral estate of a particular allotment would have to be checked. Nonmineral lands(in the sense of "hardrock" minerals such as gold, silver, etc.) were not to be available for selection,and typically the United States reserved any oil and gas. (66)

P.L. 108-337 , the Alaska Native Allotment Subdivision Act, (67) authorizes the subdivisionand dedication of "restricted lands" (allotments) with the same effect as if the restricted land wereheld in unrestricted fee simple title. This could facilitate the development of allotments once theRefuge 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 berecalled that congressional authorization to complete the conveyances is required by the 1988amendment to ANILCA. More than sufficient lands for identification of selections were madeavailable in PLO 6959, as identified by KIC in the agreement effective January 22, 1993. Conveyance of the selected lands is to be in accordance with the January 22, 1993 Agreement, andÂ§2211(2) directs that ASRC receive the remaining subsurface estate to which it is entitled under theAugust 9, 1983 agreement.

(2). Environmental Constraints on Native Lands. Asdiscussed above, H.R. 6 addresses oil development activities in the coastal plain/1002area, 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 thefederal Refuge lands would also pertain to the Native lands within the Refuge, or, if not, what otherconstraints 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 developmenton the Refuge.

In considering this question, the various Native property interests must be consideredseparately: 1) the interests of KIC in the surface estate of lands, within the coastal plain and theRefuge as a whole; 2) the interests of ASRC in the subsurface (and related use of the surface), withinthe 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; threetownships are outside the defined Coastal Plain; all are on the geographical coastal plain and withinthe 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 itsappendices address oil exploration and development on the ASRC lands and provide that its termswill govern unless superseded by statutory or regulatory provisions. Although ASRC holds thesubsurface estate, the owner of a mineral estate typically has the right to use as much of the surfaceas 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 "asthe context requires" the surface of such lands. (69)

Appendix 2, Part B, governs exploration activities and contains many environmentalprovisions. Paragraph B.9 of the Agreement states that development and production activitiesundertaken "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 andregulatory requirements governing oil and gas exploration, including exploratory drilling, anddevelopment and production that are designed to protect the wildlife, its habitat, and the environmentof the coastal plain , or the ASRC Lands, or both. (Emphasisadded.)

Other provisions of the 1983 Agreement also pertain to environmental effects. Appendix 1provides that the grant of lands to ASRC is subject to:

1. the requirements of the second sentence of Â§ 22(g)of ANCSA, (which requires compliance with the regulations of theRefuge).

6. the covenant that ASRC will use the lands "inconformance with the 'Land Use Stipulations" attached as Appendix2.

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 billsapplicable to the coastal plain arguably would apply to development of all ASRC lands, both withinthe coastal plain and outside it. (70) The same standard -- the avoidance of significant adverse effects-- is used in the 1983 Agreement and in both bills.

However, absent express new statutory language that addresses the relationship of the newlegislation to the 1983 Agreement and to particular management and land use considerations, issuesmay arise. H.R. 6 leaves much to be fleshed out by the Secretary of the Interior in newleasing regulations for the Refuge. The 1983 Agreement contemplates that subsequent legislationand regulations may supersede its provisions on exploration, and will apply to development andproduction. To whatever extent the congressional acts and administrative regulations do not clearlysupersede the 1983 Agreement, it appears that the terms of the agreement will govern oil explorationon the ASRC lands. Paragraph B.9 of Appendix 2 (pp. 28-29) states that certain provisions inParagraph B.3(c) - (m) -- that set out an approval process for a "plan of operations" for oilexploration -- will remain in effect. (71) This provision may mean that Congress would have to expresslyaddress and change this plan approval process, or the terms of the Agreement may still govern. Thereferenced Paragraph B.3(c)-(m) provisions provide a special process for approval of a plan ofoperations for ASRC exploration under which if the Regional Director of Fish and Wildlife Serviceand ASRC disagree as to whether a part of a proposed plan would significantly adversely affect thewildlife, habitat, or environment of the ASRC lands or Refuge lands or would otherwise beinconsistent with any provision of the Agreement, ultimately (after some prescribed exchanges ofwritten points of view and negotiations) the United States must obtain a court order restrainingimplementation of the plan of operations, or else ASRC will have the right to implement the planof operations as originally proposed or as subsequently modified. In other words, the opinion ofASRC as to harm will prevail unless the United States obtains the agreement of a court with itsviews in every instance.

Should ASRC assert that this provision remains in effect even if the Director of BLM, ratherthan the Regional Director of FWS is the responsible leasing official, this language appears toimpose a difficult burden on the United States to assert and control adverse effects of oil and gasexploration on Native lands. Also, if other terms are not superseded, some Agreement provisionsthat were intended as "state of the art" environmental constraints in 1983 but which are less desirablestandards 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, whilecurrent practice is to reinject wastes underground, rather than using reserve pits. Other provisionsin the Agreement also address environmental considerations in ways that might not be consideredacceptable 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, someof these provisions of the Agreement that are not expressly superseded may ultimately function topermit pollution and the siting and use of facilities that might not be permitted under currentpractices.

H.R. 6 does not clarify how it relates to the 1983 Agreement with ASRC; it doesnot expressly provide that any of its environmental constraints supersede the provisions of thatAgreement, and therefore, arguably, the provisions of the Agreement on oil and gas explorationapply, unless changed in the regulations, and so does the general provision that activities on ASRClands will be covered by the statutory and regulatory constraints applicable to federal oil and gasactivities.

Specific issues may arise, however. For example, the applicability of the 2,000 acre surfacefootprint limitation on the Coastal Plain is not clear. ASRC agreed in the 1983 Agreement to bebound by substantive statutory and regulatory requirements "designed to protect the wildlife, itshabitat, and the environment of the coastal plain, or the ASRC Lands, or both." The 1983Agreement defines "coastal plain" 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 arguablysubject to the 2,000 acre limitation on any surface use. If so, how a decision might be made as tohow to allocate the 2,000 acres among federal and ASRC lands in the Coastal Plain is unclear.

An argument can also be made that development on all of ASRC lands is subject to the 2,000acre limit in that Paragraph B.9 states that development "on ASRC Lands" shall be in accordancewith ... requirements to protect the wildlife and coastal plain."

The 2,000 acre limit does not appear to apply to surface development on Native lands outsidethe defined Coastal Plain that is not associated with development of ASRC lands -- e.g. surface useand development on KIC lands that serves federal oil and gas development in the Coastal Plainthrough support facilities, ports, dumps, airstrips, etc.

Some bills in previous Congresses have specifically addressed oil development-relatedactivities on Native lands within the Refuge and expressly set out development limitations andspecifications, together with expedited judicial review of possible Native claims for breach ofcontract 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 facilitiesand other development support activities and directed the promulgation of Refuge-wide regulationswithin a specified time.

(3). Section 22(g) Constraints. Both the KIC andASRC lands are currently subject to Â§ 22(g) of ANCSA, and hence to the laws and regulationsgoverning ANWR; the KIC lands by the terms of ANCSA, and ASRC lands by the terms of the 1983Agreement and, arguably, the 1984 Barrow Gas Field Act. Beginning in 1973, analysis of how Â§22(g) might apply to Native lands in a refuge concluded that, because the lands wereprivately-owned, separate regulations were appropriate: one set of regulations should govern the useof the public lands within a refuge and separate regulations should govern what could be done byNatives on their lands. The latter regulations should also reflect the fact that the Native lands hadbeen conveyed under a statute (ANCSA) to accomplish a settlement "in conformity with the realeconomic and social needs of the Natives" and with their maximum participation. (72)

This interpretation -- that separate regulations are appropriate -- was confirmed by certainaspects of ANILCA, notably language in Â§ 103(c) which states that only

those lands within the boundaries of any conservationsystem unit which are public lands (as such term is defined in this Act) shall be deemed to beincluded as a portion of such unit. No lands which, before, on, or after the date of enactment of thisAct, are conveyed to the State, to any Native Corporation, or to any private party shall be subject tothe regulations applicable solely to public lands within suchunits....

"Federal lands" is defined in Â§102(2) as lands the title to which is in the United States, and"public lands"is defined in Â§102(3) as federal lands, except lands selected by a Native Corporationbut not yet conveyed, or lands referred to in section 19(b) of ANCSA (certain entitlements of VillageCorporations). Therefore, it appears that the Department of the Interior concluded -- before theenactment of the Barrow statute in 1984 -- that special regulations applicable to Native lands inrefuges are appropriate to implement 22(g). (73)

Before the development of separate compatibility regulations for lands subject to Â§ 22(g),several exchanges, including the ASRC exchange, had contained land-use stipulations to attempt toclarify what could and could not be done on the Native lands. Because Â§ 22(g) requires compliancewith 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 specialregulations governing those lands might also be developed.

Current 43 C.F.R. Â§ 2650.4-6 states that regulations governing the use and development ofrefuge lands conveyed pursuant to Â§ 14 of ANCSA "shall permit such uses that will not materiallyimpair the values for which the refuge was established." This appears to be a standard that wouldallow a considerable range of activities.

The new compatibility regulations address Â§22(g) lands and state that compatibilitydeterminations for those lands are to be made in compliance with the requirements stated in theregulations, 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 theNative lands itself, will be considered, and that the Refuge management plan will not include theNative lands:

(1)(I) Refuge managers will work with 22(g)landowners in implementation of these regulations. The landowners should contact the RefugeManager in advance of initiating a use and request a compatibility determination. After acompatibility determination is requested, refuge managers have no longer than ninety (90) days tocomplete the compatibility determination and notify the landowner of the finding by providing acopy 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 willnotify the landowner prior to rendering a decision to encourage dialog on how the proposed usemight be modified to be compatible.

(ii) Refuge managers will allow all uses proposed by22(g) landowners when the Refuge Manager determines the use to be compatible with refugepurposes.

(iii) Compatibility determinations will include onlyevaluations of how the proposed use would affect the ability of the refuge to meet its mandatedpurposes. 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 longas they do not conflict. If conflicts arise, ANILCA purposes will take precedence.

(iv) A determination that a use is not compatible maybe appealed by the landowner to the Regional Director. The appeal must be submitted in writingwithin forty-five(45) days of receipt of the determination. The appeals process provided for in 50C.F.R. 36.41(i)(3) through (5) will apply.

(v) Compatibility determinations for proposed uses of22(g) lands will only evaluate the effects of the use on the adjacent refuge lands, and the ability ofthat refuge to achieve its purposes, not on the effects of the proposed use to (sic) the 22(g)lands.

(vi) Compatibility determinations for 22(g) lands thata use is compatible are not subject to re-evaluation unless the use changes significantly, significantnew information is made available that could affect the compatibility determination, or if requestedby the landowner.

(vii) Refuge comprehensive conservation plans will notinclude 22(g) lands and compatibility determinations affecting such lands will not be automaticallyre-evaluated when the plans are routinely updated.

(viii) Refuge special use permits will not be requiredfor compatible uses of 22(g) lands. Special conditions necessary to ensure a proposed use iscompatible may be included in the compatibility determination and must be complied with for theuse to be considered compatible.

(g) Except for uses specifically authorized for a periodlonger than 10 years (such as rights-of-ways), we will re-evaluate compatibility determinations forall existing uses other than wildlife-dependent recreational uses when conditions under which theuse is permitted change significantly, or if there is significant new information regarding the effectsof the use, or at least every 10 years, whichever is earlier. In addition, a refuge manager always mayre-evaluate the compatability (sic) of a use at any time.

(h) For uses in existence on November 17, 2000 thatwere specifically authorized for a period longer than 10 years (such as rights-of-ways), ourcompatibility re-evaluation will examine compliance with the terms and conditions of theauthorization, not the authorization itself. We will frequently monitor and review the activity toensure that the permittee carries out all permit terms and conditions. However, the Service willrequest modifications to the terms and conditions of these permits from the permittee if the Servicedetermines that such changes are necessary to ensure that the use remains compatible. AfterNovember 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 tothe terms and conditions, if necessary to ensure compatibility. We will make a new compatibilitydetermination prior to extending or renewing such long-term uses at the expiration of theauthorization. When we prepare a compatibility determination for re-authorization of an existingright-of-way, we will base our analysis on the existing conditions with the use in place, not from apre-use perspective. (74)

These regulations, and the 1983 Agreement, could allow a considerable range of developmenton the KIC and ASRC lands, unless superseded or elaborated on by new statutory and regulatoryleasing provisions. H.R. 6 provides that oil and gas leasing in the Refuge is compatiblewith the purposes of the Refuge and no further findings or decisions are required to implement thisdetermination. The exact effect of this statutory finding on the scope of possible regulation underÂ§22(g) is not clear.

(4). Allotments. Allotments, it will be recalled, arelands 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 innon-federal ownership and can be developed. Allotments within the Refuge were not subject to therequirement of Â§ 22(g) of ANCSA that uses on Native lands chosen under that act must comply withthe regulations of the Refuge, but under the 1983 Agreement, ASRC received the subsurface beneathmost allotments in the Refuge and agreed to be bound by 22(g) in its development of them. (75)

The uses that an allottee might make of these lands or permit to be made of these lands couldhave significant impacts on the Refuge -- if oil development were allowed, allotments could be usedfor staging areas, port development, or refuse storage or direct drilling development. Therefore, thesize and location of allotments is relevant to assessing the possible overall effects of oildevelopment on the coastal plain and the Refuge. As noted above, some patented allotments arelocated on the coast, but outside the defined Coastal Plain, and in the Sadlerochit Spring area. BLMadvises that 9,797 allotment acres have been conveyed in the Refuge and another 1,720 acres havebeen approved.

Other statutes relating to the management of environmentally sensitive federal conservationunits have provided for regulation of valid existing rights and inholdings. For example, theWilderness Act authorizes mineral leasing under "such reasonable stipulations as may be prescribedby the Secretary of Agriculture for the protection of the wilderness character of the land consistentwith the use of the land for the purposes for which they are leased ...." (76) Congress also subjectedexisting mining rights in national parks to "such regulations prescribed by the Secretary of theInterior as he deems necessary or desirable for the preservation and management of thoseareas." (77)

As discussed above, P.L. 108-337 authorizes the subdivision and virtual conveyance ofallotments as if they were held in fee simple.

H.R. 6 does not address allotments within the Refuge at all -- e.g., by providingfor regulated use, or for buying them out, etc.

(5). Timing. Section 2203(b)(1) of H.R. 6 would repeal the Â§ 1003 prohibition against oil and gas development in the Refuge, therebyallowing such development, but would not place any time limitations on activities on Native landsleading to development or production, even though leasing regulations for the federal lands are notto be finalized for 15 months. As discussed above, the bill does not expressly address the 1983Agreement and which of its provisions are superseded. Therefore, it is not clear that ASRC mustwait until the federal leasing regulations are completed before moving forward in accordance withthe terms of the 1983 Agreement. It will be recalled that an exploratory well was already drilled onKIC lands and some oil companies could be ready to move forward immediately on the Native lands. Express provisions addressing this issue of timing could ensure a fair start under the same rules.

III. Access, Rights of Way, and Exports.

Title XI of ANILCA provides for rights of way across federal conservation areas fortransportation and utility systems. Section 2210(a) of H.R. 6 provides that Title XI ofANILCA "shall not apply to the issuance by the Secretary under section 28 of the Mineral LeasingAct ... 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 withexpressly. Subsection (b) of Â§ 2210 requires that terms and conditions on rights of way or easementsto transport oil and gas ensure that such transportation does not result in a significant adverse effecton the fish and wildlife, subsistence resources, their habitat, and the environment of the CoastalPlain. Current 30 U.S.C. Â§ 185(h), on rights of way under the MLA, requires that the Secretaryimpose stipulations on the right of way that are "designed to control or prevent (i) damage to theenvironment (including damage to fish and wildlife habitat), ...." This standard in current law maybe more protective than that in H.R. 6 .

The rights of way language in H.R. 6 addresses only the transportation of oil andgas under the MLA, which section relates only to pipelines. H.R. 6 does not address access to theareas or other forms of rights of way that might be needed. Any use of the surface of the federallands 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 wouldotherwise be the managing/permitting authority and with what scope of authority, hence it is notclear under the H.R. 6 which laws and regulations would pertain to non-pipeline rightsof ways used in connection with leasing activities. Title XI of ANILCA provides a process forobtaining rights of way for transportation and utility systems in federal conservation areas in Alaska(which term includes refuges), and Â§ 2210(a) states only that Title XI of ANILCA does not apply tothe issuance of pipeline rights of way. The Refuge Administration Act provides at 16 U.S.C. Â§668dd(d)(1)(B) that the Secretary (acting through the FWS) may grant easements across or uponrefuge lands. Whether these provisions could come into play may depend on how the managementdivision between BLM and FWS is interpreted. Arguably too, rights of way could be addressed inthe regulations authorized by Â§ 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 underÂ§ 1110(b) of ANILCA, notwithstanding any other law, the Secretary is to grant access rights to theowner or occupier of inholdings in conservation system units. (78) The access rights are tobe:

as may be necessary to assure adequate and feasibleaccess for economic and other purposes to the concerned land .... Such rights shall be subject toreasonable regulations issued by the Secretary to protect the natural and other values of suchlands. (79)

As noted, the Refuge Administration Act provides that the Secretary (acting through theFWS in that instance) may provide permit or grant easements across or upon areas within the RefugeSystem, but because of the "notwithstanding" language in the ANILCA access provision, arguablythis statute would not apply to access easements. (80)

Subsection (s) of 30 U.S.C. Â§ 185, allows the export of oil transported by pipeline throughthe Trans-Alaska Pipeline System (TAPS) unless the President determines that export is not in thenational interest. It has generally been assumed that oil from ANWR would be piped over to theTAPS for transport south to the port of Valdez. If so, then the oil normally could be exported. However, Â§ 2206(a)(8) would require ANWR leases to prohibit export of oil produced under thelease.

IV. Compliance with NEPA.

Some observers question whether the existing final legislative environmental impactstatement (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 declaratory judgment action in 1991 (81) held that the DOI should have prepared a SupplementalEnvironmental Impact Statement (SEIS) at that time to encompass new information about the 1002area in connection with the Department's recommendation that Congress legislate to permitdevelopment. Therefore, it seems clear that either an SEIS or a new EIS would have to be preparedbefore development, unless Congress changes this requirement.

Section 2203(2) of H.R. 6 states that the Congress finds the 1987 EIS adequateto satisfy the legal and procedural requirements of [NEPA] with respect to the actions authorized tobe taken by the Secretary of the Interior in developing and promulgating the regulations for theestablishment of the leasing program, thereby eliminating the need to redo or update the EIS for theleasing regulations. Under Â§ 2203(c)(3) of H.R. 6, the Secretary is directed to prepare an EIS withrespect to actions other than the preparation of the regulations. This is noteworthy because only thesmaller document, an environmental assessment, might normally be sufficient, depending on themagnitude of the action involved. The rest of that paragraph sets out limitations on the alternativesthat the Secretary must consider as to leasing , as though this paragraph relates only to the leasingstage, rather than to all actions. The section goes on to say that the Secretary is to identify only apreferred action for leasing and a single alternative and analyze only those two choices, and toconsider public comment only on the preferred alternative. Public comments must be submittedwithin 20 days of publication of the environmental analysis, and the Secretary may only considerpublic comments that specifically address the preferred action. The analysis on the first lease saleis to be completed within 18 months of enactment. Compliance with paragraph (c)(3) is stated assatisfying 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 thanthe development of coastal plain leasing regulations, yet also speaks as though it is only meant toaddress 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 effectsof any drilling or related activities, which analysis arguably must be an EIS under the Â§2203(c)(3)requirement.

V. Judicial Review.

H.R. 6 contemplates prompt action to put a leasing program in place andexpedites judicial review. Section 2208 of H.R. 6 requires that judicial review be sought within 90days from the date of the action being challenged or the date the complainant knew or reasonablyshould have known of the grounds for the complaint. Section 2208(a)(1) requires filing of anychallenge to the leasing title or to any action of the Secretary under the title in "any appropriatedistrict court," yet Â§2208(a)(2) requires filing of challenges to an action of the Secretary only in theU.S. Court of Appeals for the District of Columbia. The section also provides that actions of theSecretary that could have been reviewed under the section on judicial review may not be reviewedas part of a civil or criminal enforcement proceeding.

In addition, Â§2208 of H.R. 6 also limits the scope of review by stating thatreview 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 uponthe administrative record of that decision. Furthermore, the Secretary's identification of a preferredcourse of leasing action and the Secretary's analysis of environmental effects is "presumed to becorrect unless shown otherwise by clear and convincing evidence to the contrary." The requirementof clear and convincing evidence in this context differs from the usual standards for proof and maybe confusing, (82) butappears to be intended to make overturning a decision difficult.

VI. Disposition of Leasing Revenues.

Another issue that has arisen during debates over leasing in the ANWR is that of dispositionof possible revenues -- whether Congress may validly provide for a disposition of revenues otherthan the 90/10 percent split mentioned in the Alaska Statehood Act.

Under Â§ 35 of the Mineral Leasing Act (MLA), (83) an act that applies to the leasing of oil and gas and certain otherminerals from federal public lands, certain western states receive directly 50% of revenues. Anadditional 40% goes to those states indirectly through the construction and maintenance of irrigationprojects under the Reclamation Act of 1902. These percentages previously were 37 Â½% and 52 Â½%respectively. Because the territory of Alaska did not benefit from the Reclamation Act, it initiallyreceived only a 37 Â½% share of federal leasing revenues. Before enactment of the Alaska StatehoodAct, Congress amended the MLA to provide that the territory of Alaska would receive an additional52 Â½% 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 theMLA to change the references from the territory of Alaska to State of Alaska. (85)

Section 317 of the Federal Land Policy Management Act of 1976 again amended therevenues section of MLA to direct payment of 90% to Alaska, rather than the separate percentagespreviously stated. (86) The committee report accompanying the 1976 change states, under a heading regarding changes todistribution of revenues from MLA operations, that the action was intended to clarify that Alaskawas 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 andmust always be paid to the state because the Statehood Act is a compact between the prospectivestate 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 sharingrevenues under the MLA , but does not preclude the Congress from changing the MLA or at timesmaking 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 hadan obligation under the Statehood Act both to maximize mineral leasing in Alaska and to always paya 90 % share of gross receipts to Alaska, the United States had either breached the contractestablished by the Statehood Act, or "taken" property of Alaska by withdrawing some lands inAlaska from leasing (notably ANWR), and by deducting administrative costs prior to thedisbursement of the 90% revenues to the State. The court found that the Statehood Act and theprevious statute providing the territory of Alaska with the same shares as the other states "simplyplugged [Alaska] into the MLA, along with the other States." (88) Therefore, Congress couldamend the MLA, e.g., to provide a different way of calculating receipts, and the changes wouldlawfully pertain to Alaska. Furthermore, the court concluded that the United States did not promisein the Statehood Act to make federal mineral lands productive of royalty revenues for the State, andthat 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 costsbefore dividing MLA revenues with Alaska, arguably the same analysis of the provision in questionwould apply to a direct challenge to the authority of Congress to change the revenue shares undera 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 theMLA, the question may be asked whether Congress may legislate specially as to ANWR andprescribe different revenue-sharing provisions in that particular leasing context. Congress hasdirected a different split in the past with respect to leasing under particular statutes, e.g., the NationalPetroleum Reserves, in which situation all of the revenues go into the federal Treasury, (90) and the National PetroleumReserve in Alaska, in which instance the revenue sharing is 50/50. (91) Therefore, arguablyCongress has flexibility regarding revenue sharing in special legislation regarding oil and gas leasingin the Refuge. Absent new provisions, revenues might either be divided as currently provided underthe MLA -- if leasing in ANWR is under that statute -- or go to the U.S. Treasury as miscellaneousreceipts under 31 U.S.C. Â§ 3302, or be divided in some other way Congress specifies. Issues mayremain, 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 theMLA, yet Â§ 2209 states that "[n]otwithstanding any other provision of law" 50% of revenues are tobe paid to Alaska. Given that leasing is to be under the MLA, whether the revenue splittinglanguage validly overrides the provisions in the Alaska Statehood Act is not clear. If not, and thelanguage is stricken, a court would then be faced with severability questions, and the validity of therest of the bill could be at issue. H.R. 6 has no severability section, so a court mightstrike the revenue splitting language, in which case the court would have to decide whether the usualMLA 90/10 split should again pertain, or the court could strike the revenue language and also decidewhether Congress would have enacted the legislation without the new revenue provisions. If a courtconcludes that Congress would not have done so, the entire title might fall.

Section 2212 of H.R. 6 establishes a Local Government Impact Aid andCommunity Service Assistance Fund for the Secretary to provide assistance to eligible entities. TheFund is capped at $11 million, but under Â§ 2212(e), $5 million is authorized to be appropriated tothe Secretary for each fiscal year.