Earl Warren: Stewart L. Udall, Secretary of the Interior, Petitioner, versus James K. Tallman et al. Mr. Barnett.
Wayne G. Barnett: Mr. Chief Justice, may it please the Court. The Mineral Leasing Act of 1920 authorizes the Secretary of the Interior to issue oil and gas leases on the public lands. By its terms, that statute is fully applicable to areas that have been withdrawn or set aside for use as wildlife refuges. This case involves the validity of oil and gas leases issued by the Secretary of Interior under that Act and the Kenai National Moose Range in Alaska. At page 17 of the record, you'll find a map of the Kenai Peninsula and the insert at the lower right shows the relationship of the Peninsula to Alaska. The larger map shows the boundaries of the Moose Range on the Peninsula. The Moose Range was created in 1941 by order of President Roosevelt which set it aside for the use by the Department of the Interior as a refuge for wildlife, primarily for the giant Kenai moose. This large exhibit involves and furnished to do with individual copies of the same exhibit for your convenience but it shows the Moose Range divided into three separate parts. Each of which has a somewhat different status. The one on the right, that large area which we have labeled area one was withdrawn by the original Executive Order 1941, Executive Order 8979 withdrew that area and only that area from a settlement, location, sale or entry or other disposition. And the basic question in the case will be what that means. The two areas on the right -- I'm sorry, on the left, your left were accepted from the original order. However, the one on the bottom which we call area two was seven years later withdrawn by a public land order issued by the Secretary of Interior is at that time was withdrawn from settlement location, sale or entry. The third area, top on the left, area three, was never withdrawn by either order. It in fact is wholly irrelevant to this case and we have it there only for the sake of completeness and I won't -- again refer to it. The colored areas on the map represent oil and gas leases, leases issued by the Secretary of the Department of Interior, all on applications which were filed during 1954 and 1955.
William O. Douglas: All colors are leases?
Wayne G. Barnett: All the colors. The lease -- the difference in the colors is the time the leases were issued. The applications were all filed at the same time.
William O. Douglas: The white is not leased?
Wayne G. Barnett: I'm sorry?
William O. Douglas: The white portions are not leased.
Wayne G. Barnett: The white portions are not leased.
William J. Brennan, Jr.: Except for those areas two and three that were pulled out later.
Wayne G. Barnett: No, they were also leased and --
William J. Brennan, Jr.: There is white up there?
Wayne G. Barnett: Well, some of it is white, that's right. Any area that is not colored was never leased or at least not leased to an irrelevant period. It may have been subsequently.
William J. Brennan, Jr.: It would be like --
Wayne G. Barnett: Right.
William J. Brennan, Jr.: -- clear about this. On my map is there's a white area here which you have an arrow and on the left we have a blue area.
Wayne G. Barnett: The arrows I've exploded in the map. This -- the three areas are in fact all contiguous.
William J. Brennan, Jr.: Oh, I see.
Wayne G. Barnett: And I've separated them out for ease of reference.
William J. Brennan, Jr.: Well, what's the --
Wayne G. Barnett: The arrows -- the arrows show where they fit together.
William J. Brennan, Jr.: Yes, but the segment which is white in the right, the blue on the left is under lease now, is it?
Wayne G. Barnett: No.
William J. Brennan, Jr.: No?
Wayne G. Barnett: This white area down here. All of that area has not been --
Byron R. White: The area of three for example is colored. A lot of it is colored.
Wayne G. Barnett: Most of it is colored.
Byron R. White: But it comes from the place from which it fits in is now white?
Wayne G. Barnett: Yes. But with this belongs over here, alright, I just moved it over to separate the areas visually. And this belongs in here. Now, the area that was leased and the areas were -- we're concerned as I say only with this large area and the small area two. And the areas that were leased and those two areas total about 800,000 acres which is about 1,300 square miles. It's a very large area. The black dots which are clustered mostly up here and there are few down in area two. Those represent producing oil or gas wells that have been brought in under the leases. Their first oil discovery was in 1957, July of 1957. And the productions today have been substantial and the tens of millions of dollars perhaps aggregated in about a $100 million. The reserves, the proven reserves, have been estimated at $1 billion. I might also say that the 90% of the royalties and rents under the leases are paid to Alaska, the State of Alaska, and are very significant part of that state's revenues.
William O. Douglas: What percent?
Wayne G. Barnett: 90%.
William O. Douglas: 90%?
Wayne G. Barnett: 90%. Now, what the Court of Appeals for the District of Columbia held in this case and in fact was that all of those leases were invalidly issued and are nullities. And that is why we brought the case here. Now, the case -- the land is actually in issue in the particular case are these crosshatched area, in area one that includes nine blocks of four sections each, it's a total of about 36 square miles. Also in issue are in scattered figures which are also crosshatched in area two, they total only about 2,000 square miles. Those are the lands which responded Coyle in this case seeks. The other nine respondents, respondent Tallman and the other eight are concerned only with the land in the large area. I think it's agreed that if the nine respondents are not entitled to leases in the large area, respondent Coyle has a fortiori not entitled to a lease in the smaller area two. Now, solely for purposes of simplifying the case as much as possible, I will confine my detailed statement and argument to the large area on the right, the case involving the nine respondents. But what happened was that in October 1954 --
Potter Stewart: Under the -- before we leave the map, what are the difference of the shading of color?
Wayne G. Barnett: That was the draftsman's own innovation -- I'm sorry. The difference of color is insignificant. The difference in shading --
Potter Stewart: That's what I know.
Wayne G. Barnett: -- the dark color as opposed to light colors is their difference in time that the leases were issued. The applications were filed at the same time. The leases were issued at different times. Specifically, I'll come to this, this area, this dark area up here is called the Swanson River Unit was leased in 1956. The rest of the area, all of this light orange was not leased until about September 1958. The reasons are later explained why that leasing was delayed. But the applications were all about the same time and the issue really is the status of the lands when the applications were filed.
Tom C. Clark: When was the brown leased? Is that brown or what color is it?
Wayne G. Barnett: When -- which?
Tom C. Clark: The area in the controversy? When was it leased?
Wayne G. Barnett: This is area was leased at the same time that all of these other area was leased.
Tom C. Clark: Is that two dots you have there?
Wayne G. Barnett: There's one dot, there which is a -- that's a producing gas well. The other dot is a dry hole.
Speaker: There's only one that has gas.
Wayne G. Barnett: That's right, that's right. And that isn't -- that is not within these leases. That's just beyond the boarder of these leases. The facts of this case are that in nine -- October 1954, between October 1954 and January 1955, three-month period, applications for lease were filed on this area in controversy by -- when D.J. Griffin and various other persons. For convenience, I'll refer to them all as the Griffin group. The applications were accepted for filing and initially processed. However, final action was not taken because an internal instruction had been sent out to withhold final action in all leasing applications pending a study and revision of the leasing regulations.
William J. Brennan, Jr.: This procedure's at all relevant?
Wayne G. Barnett: No. I think at one point, at one point an argument was made about the suspension order, the instruction not to take final action. I think that has been abandoned by the respondents and I think it's now agreed that that was simply an internal instruction since a hold up because we're studying the regulations.
Hugo L. Black: When was the lease was withdrawn at that point?
Wayne G. Barnett: Well it is in coordinate -- in the chronology of the findings by the respondents. These leases --
Hugo L. Black: But I thought that this is the application.
Wayne G. Barnett: Well, that determines this -- that their argument is that at that time the range was closed to leasing and the applications were invalid.
Arthur J. Goldberg: (Inaudible)
Wayne G. Barnett: Yes.
Arthur J. Goldberg: And were holding lease at bar.
Wayne G. Barnett: That is correct.
Arthur J. Goldberg: (Inaudible)
Wayne G. Barnett: That is correct, that is correct, that is correct. Because they say they weren't acted on immediately and almost four years later, in August of 1958, the respondents top file, they filed applications on the same lands in August of 1958. A month or two after that, final action was taken and the leases were issued to the original applicants, the Griffin applicants. And in due course, the respondent's top file applications were rejected. They then brought this suit against the Secretary in the nature of mandamus to require him in effect to issue the leases to them. The District Court granted summary judgment for the respondent -- for the Secretary. The Court of Appeals reversed. What the Court of Appeals held was that the Executive Order that created the range in 1941 which withdrew the lands from settlement location, sale or entry or other disposition whose other language I'll deal with later, in effect closed the area to leasing it, prohibited leasing in that area and so the earlier applications were invalidly filed and the leases issued on them were nullities. Now, it also held that the -- some regulations which I'll come to later also, they were issued in 1958 and an implementing order have the effect of opening the range to leasing and therefore, the -- the Tallman group as those first to file after the range was opened, became entitled to the leases. Now, I already generally -- the ultimate question is the interpretation of the Executive Order. But that is not a question to be decided by the Court in the first instance. The Secretary's interpretation is reasonable. It is not capricious and arbitrary. I think it's settled that his interpretation must be upheld. And so I first want to establish what his interpretation was to both by his consistent practice in administering the range and by regulations. Now, we would then examine --
Speaker: In what order it was?
Wayne G. Barnett: I'm sorry?
Speaker: The 1941 order.
Wayne G. Barnett: The 1941 order, I would talk only about 1941 order and this large area of the range on the right.t
William J. Brennan, Jr.: And is government's case in, don't accept it but I don't think they come out of the interpretation made by them.
Wayne G. Barnett: As the case has been argued, it does. There are some other arguments I think very strong ones why even so Tallman will not be entitled to the leases. We have not made them and think to say we've made them primarily because we are confidence in the basic issue and we didn't want to complicate the case.
William J. Brennan, Jr.: Well, I'm just trying to (Voice Overlap), does it then come down to whether we agree or not in view which words on as far as argument but before as to the effect.
Wayne G. Barnett: Yes, as to the effect of the 1941 Executive Order. But as I say one has to give great deference in that to the Secretary's consistent application of it. Now, I might briefly -- I told you generally that the leasing practices that occurred. I might briefly explain why the sequence of them. In October 1954, prior then that no significant leasing action had occurred, so it all started in October 1954, when Richfield Oil Corporation filed applications on this area up here, the dark orange area which is known as the Swanson River Unit. Now, when the word got out that Richfield was filing apparently because the oil companies don't file unless they have good reasons to think that there's oil, there was a land rush on the office and within the next few months, applications were filed covering the whole range.
William J. Brennan, Jr.: Now, what -- this is 1954?
Wayne G. Barnett: This is October 1954 through the spring of 1955, alright. April 1955 is about the last application.
William J. Brennan, Jr.: Is Richfield a respondent?
Wayne G. Barnett: Richfield is not a respondent. The -- none of the holders of the leases are parties in the case. They did file briefs as amicus curiae, both Richfield and other oil companies that have since been assigned that the lease is an issue. So the leases issued to the Griffin application, the Griffin applicants were later working at these or the leases themselves were later assigned to some oil companies with sufficient capital to develop them.
William O. Douglas: But this is not a -- a quiet opinion of the Secretary on oil companies who despite being -- that oil company gets a land.
Wayne G. Barnett: Well, the respondents are individuals at least this respondent Tallman.
William O. Douglas: Well yes, but they represent all interest?
Wayne G. Barnett: No, they don't, they don't. The applications filed by them were in their own names as individuals. They haven't gotten them yet. If they get them, they're free to assign them to an oil company and might very well do so.
William O. Douglas: Yes, but the application is for oil, I mean --
Wayne G. Barnett: Yes, that's right. It's the oil and gas lease.
William O. Douglas: The oil and gas lease.
Wayne G. Barnett: The application. That's right. Now it's agreed that somebody get to this.
William O. Douglas: They're not updated. They were still candor there.
Wayne G. Barnett: Oh no, no. They're not there to protect the moves and sometimes it seems to suggest they are. They want the leases instead of the Griffin application.
William J. Brennan, Jr.: Well, I noticed Mr. Barnett in the brief amicus, one of the point is that they're irresponsible parties.
Wayne G. Barnett: That's correct.
William J. Brennan, Jr.: Did they try to get in?
Wayne G. Barnett: They, I don't want to get into that controversy. They were not given a notice in the suit in the District Court. They did participate in the administrative proceedings. They weren't served their all -- all of the existing lessees. According to the amici, they didn't hear about this suit until after the Court of Appeals decision was announced at the first time, and they were never joined.
Byron R. White: Although they're leases the --
Wayne G. Barnett: That's right.
Byron R. White: They'll disappear unless you win.
Wayne G. Barnett: Well, I think probably the result was there'd be some more litigation. I hope we'll win and stop the litigation, that's why we're here.
Tom C. Clark: And part, they'll thought to bring this issue.
Wayne G. Barnett: Yes, yes. The -- as I say, the range was covered with applications in 1954 and 1955. But action was -- the final action, they were exempted for filing but filed action on the application was withheld under this suspension directive not to take file action because of a possible revision of regulations. And there the matter stood until 1956. In 1956, some bills were introduced in Congress to restrict by statute leasing in wildlife refuges. This is across the country not just the Moose Range. The committees did not report out the bills. However, the House Committee noted in its report that an understanding had been reached between the Committee and the Secretary whereby the Secretary would not issue any more leases in wildlife refuges without first advising the Committee and asking for its approval. So, in July 1956 -- June 1956, the Secretary submitted to the Committee a proposal to lease, to issue leases on the Swanson River Unit. That's the dark area up at the top. The Committee held public hearings on the proposal and ultimately in July, advised the Secretary by letter that the Committee was in unanimous agreement that issuing those leases would not be detrimental to wildlife uses and they might properly go ahead and issue those leases without awaiting the final resolution of the policies generally to be followed. So in September 1956, leases in fact were issued in the Swanson River Unit which is the dark area on the top. That's a large area at 71,000 acres over 100 square miles. Now, under those leases oil was discovered in July 1957. That was responsible -- that discovery lead to the development of this oil field which is shown by the custard dots. And mind you, all of these was during the time that the Court of Appeals holds that the range was closed leasing. Now, the next thing that happened is that in 1958, the new set of regulations was finally issued in an implementing order specifically applicable to the Kenai range was issued which became effective August 14th. Now, what the order did was to in effect, we -- well, we say what it did was to close the lower half of the range. It forbad any leasing at all. And this part of the range down at the bottom is outlined in the heavy line also in a small piece over the top. But it directed that the pending applications now be acted on and so promptly after that, they acted on all the pending applications and then in the next few months issued, I think it's 294 leases covering 620,000 acres on the application that have been filed back in 1954 or 1955, leasing thereby substantially the whole range that was still available for leasing. Among those leases were the leases involved in this case issued to the Griffin applicants and the status then is exactly the same as the status of all of the other leases that were issued at that time. Now, I would like -- I think just that practice alone --
William J. Brennan, Jr.: Now when that is done, many of these stopped filing?
Wayne G. Barnett: Yes, on the --
William J. Brennan, Jr.: (Voice Overlap)
Wayne G. Barnett: When the -- the regulations of 1958 were issued in January 8. At that time they forbid any further filings and said that the pending offers shall continue to be suspended until this later order which was issued in August 2nd of 1958. So for an eight -- eight-month period no filings were permissible. When the new order came out, it said that this bottom half is closed leasing, the top half may be leased and new offers may now be filed, starting 10 days from the time it's recorded which was August 14th and for a 10-day period after, that all new offers will be treated as simultaneously filed.
Tom C. Clark: This is not an Executive Order.
Wayne G. Barnett: This is a --
Tom C. Clark: Regulation --
Wayne G. Barnett: Order of the Secretary. I might explain that Justice Clark. The original withdrawal was by an Executive Order signed by the President.
Tom C. Clark: Would that be an 8979?
Wayne G. Barnett: 8979.
Tom C. Clark: But after that it's still in effect?
Wayne G. Barnett: It's still in effect, still in effect.
Tom C. Clark: Nothing has happened so far as the executive is concerned --
Wayne G. Barnett: Well no.
Tom C. Clark: That has been said.
Wayne G. Barnett: No. Their argument is that this 1958 order modified the Executive Order which the Secretary has powered to do. I might explain that. You will know that the original withdrawals by an Executive Order and the withdrawals of area two and 50 -- 48 was by a public land order. What happened was the -- such withdrawals were formally always signed by the President and were Executive Orders. In 1943, this President delegated the function to the Secretary and thereafter the Secretary has the plenary power to make withdrawals and to modify the existing withdrawals. And the Secretary could have revoked the Executive Order it will. And in fact, the Executive Order became the Secretary's order in 1943 and there's really no difference in the status between it and the Public Land Order that was later issued in this small area.
William J. Brennan, Jr.: Is the Secretary by this 1943 action was given the power to revoke?
Wayne G. Barnett: Yes.
William J. Brennan, Jr.: To effective order.
Wayne G. Barnett: That's right, that's right.
Speaker: And there's an argument here that the 1958 was modified --
Wayne G. Barnett: Yes, that's the respondent's argument that the 1958 order for the first time that the Executive Order closed its leasing. In the 1958 order from the first time opened it by modifying the Executive Order. I might know by the way that the delegation of authority to the President is quoted at 102 of the record. The relevant part of it is, it's not quoted in our brief unfortunately, and it said that all orders issued by the Secretary under the authority of this order shall be designated as Public Land Orders. Now, I'm not arguing that -- that a regulation couldn't be given effect as the modification of any existing withdrawal. In fact, however, when the Secretary thinks that's what he's doing he does it by Public Land Orders. That's what the delegation of authorities said he should do. And as -- when he withdrew this area two, he did it by Public Land Order and in the briefs of the amici you will find lists and lists of Public Land Orders and that's what he does when he means to alter a withdrawal. What we will argue is that the regulations weren't -- didn't -- weren't intended to modify the Executive Order. They simply reflect the longstanding interpretation of the Executive Order as never having part of any leasing. Now, the regulation, I'd like to go back a bit on the regulation that the 1955 version of the regulations, we think at equally confirmation of the Secretary's interpretation of the Executive Order. The regulations begin at page 3A of the government's brief, in the appendix to the government's brief. Now, what the regulations are the Mineral Leasing Act itself applies to wildlife refuges generally. But it's not mandatory, it just gives the Secretary the power and he therefore has discretion to limit leasing any place in the public domain and this regulation states the departmental policy on leasing in wildlife refuges. There's no doubt he has the power so to limit or control leasing in wildlife refuges. So the original one was issued 1947 and it said very little. It simply said that oil and gas -- that no oil and gas leases may be issued in the wildlife refuge unless it's subject to a unit plan and no drilling or prospecting under the lease may be conducted without the consent of the Secretary on the advice of the Fish and Wildlife Service. Now, as I say in 1953, August of 1953, they took under -- or they took under advisement and study whether they shouldn't revise the leasing policies and restrict leasing in wildlife refuges. I might say the evolution of these regulations can be seen as a competing forces between those who are in favor of conservation and those who are in favor of development of minerals. And even to say, they have quite different views about the extent to which leasing is compatible with wildlife uses. And I might anticipate the end by saying that ultimately the conservation has went out. And except for Alaska, the new regulations would bid leasing altogether in wildlife refuges but I'll come to that. Now, in 1955, a new version of the regulation was issued in December 8, 1955. And it's set out on page 4A and 5A of our appendix and I would like to emphasize this because it's the first formal document of the Secretary which expressly, we think, or virtually expressly does treat the range as open to leasing. The operative provision is paragraph B and it treats with three categories of lands. The first sentence says that areas determined to be indispensable for the preservation of endangered species and the like are not available for leasing at all, and areas in that category are included in Appendix A. And Appendix A, they enlisted a few, did not mention Kenai range. The next sentence begins, “Oil and gas leases may be issued for other lands administered by the Fish and Wildlife Service for wildlife conservation.” Now, I would like to stop there for a moment, it goes on to say that literally that would include the Moose Range. It says, “Any areas administered by the Fish and Wildlife Service for wildlife conservation,” and it goes on, “except that”. What follows is an exception from that statement that leases may be issued, “Except that on those areas designated by the Fish and Wildlife Service as wilderness, recreational, water development or marsh with respect to which it determines that oil and gas development might seriously impair or destroy the usefulness of the lands for wildlife conservation purposes, no leases will be issued unless the service first approves a detailed program together with safeguards.” Areas in this category are listed in Appendix B and over in the next page 5A, Appendix B includes this item, Kenai. The following areas in all lands within one mile of Tustumena Lake, Skilak Lake, Kenai River, Upper and Lower Russian Lake -- River, Hidden Lake, Kasilof River, and Chickaloon Flat. Those parts all within the range of -- some of them show in the map. They're all within the range were designated mind you, to exempt them from provision that oil and gas leases may be issued. They were designated as areas in which leasing might seriously impair or destroy wildlife conservation. Now, I suggest that it make -- it would make a certainty of the regulation if they did not necessarily assume that the whole range was open to leasing and it was accepting the rivers, lakes, and marshlands as areas in which because of their special sensitivity that's where fish and wildlife are bound, no leasing will be permitted except on a very stringent conditions.Now what the respondent --
Hugo L. Black: (Inaudible)
Wayne G. Barnett: The Executive Order -- and that's involved here Executive Order 8979 had not been amended. There was another executive order that generally delegated the power to make withdrawals throughout the United States.
Hugo L. Black: To the Secretary.
Wayne G. Barnett: To the Secretary.
Hugo L. Black: (Inaudible)
Wayne G. Barnett: That's right, that's right.
William J. Brennan, Jr.: Well that's the 1943 that you mentioned --
Wayne G. Barnett: Since 1943 the Secretary --
William J. Brennan, Jr.: Let me see if I got the statement.
Wayne G. Barnett: Yes.
William J. Brennan, Jr.: The Executive Order, the basic one was 1941.
Wayne G. Barnett: Right.
William J. Brennan, Jr.: And as I understood you earlier what happened in 1943 had the effect of delegating the power to the Secretary to do all these things.
Wayne G. Barnett: All over -- all over the country.
William J. Brennan, Jr.: Well that is --
Wayne G. Barnett: General delegation –-
William J. Brennan, Jr.: That included --
Wayne G. Barnett: This order, this order is subject to this amendment.
William J. Brennan, Jr.: And these regulations came along in 1947 is that right?
Wayne G. Barnett: The first wildlife leasing up here.
William J. Brennan, Jr.: That's what we have been talking about.
Wayne G. Barnett: I'm now on the 1955 regulations.
William J. Brennan, Jr.: Oh, now you're at the 1955?
Wayne G. Barnett: Yes.
William J. Brennan, Jr.: I would pass 1947, we're now on 1955?
Wayne G. Barnett: Right.
William J. Brennan, Jr.: Alright.
Wayne G. Barnett: Right. And the 1947 regulation did not mention any range by name.
William J. Brennan, Jr.: Yes.
Wayne G. Barnett: What I say is significant about 1955 is that it does mention a certain part in the Kenai Range, the lakes, rivers and marshlands. And it mentions them for the purpose of accepting them from the provision where it says oil and gas leases may be issued.
William J. Brennan, Jr.: And these filings Griffin would probably call when they came in 1956?
Wayne G. Barnett: No, the filings came just before this.
William J. Brennan, Jr.: Just before the --
Wayne G. Barnett: The filings came in 1954 and early 1955. And that's before this regulation.
Speaker: Where do we find this statement in your brief?
Wayne G. Barnett: It's not quoted in our brief.
Speaker: It is not quoted here.
Wayne G. Barnett: Actually, I think we quoted a part of the 1952. Before they do, it was the first and 1952 was the current one and I think we quote that --
Potter Stewart: Page 102 of the record?
Wayne G. Barnett: Yes. I guess that's not in the briefs.
Speaker: All through 105.
Wayne G. Barnett: Yes.
Potter Stewart: Is that the partial quote on page 102 of the record?
Wayne G. Barnett: Well, 102 of the record is a partial -- but we have another quote in our brief too. I'm not quite sure where it is. Page 25 we cited, it seems there. Yes, but a partial quote is on page 25 note 29. There's in the 1952 supple -- the later one with some insignificant differences. Now, what we say about the 1955 regulation makes perfectly clear that the Secretary assumes -- assume then that the range is open for leasing. Otherwise, what the respondents argue is that the listing of the specified areas in the appendix was designed specifically to authorize their leasing as an exception to the general bar against leasing. The result of that is to say that the 1955 regulation authorized leasing only in the areas where it might seriously destroy or impair wildlife conservation purposes which I suggest is either nonsense. I'd necessarily --
Byron R. White: Well, they're against it.
Wayne G. Barnett: I'm sorry?
Speaker: (Inaudible)
Wayne G. Barnett: I don't get too much comfort from that one. Let's see. Whether that's -- alright that's by geological and geophysical prospect increments, it's not leases as such. And B is about leases --
Speaker: (Inaudible)
Wayne G. Barnett: Yes, right, right --
Tom C. Clark: You don't intend on '47 at all?
Wayne G. Barnett: In 1947 I think we flex the general rule of construction that wildlife refuges are open to leasing and this is some specific prohibition against leasing but it doesn't mention Kenai Range and I cannot prove from that they met Kenai Range. So to that extent I don't find very much comfort in the 1947 regulation.
Tom C. Clark: That's general throughout the United States.
Wayne G. Barnett: Yes that's right. All these regulations are general throughout the United States.
Tom C. Clark: They laid on certain conditions, the 1947 did?
Wayne G. Barnett: Right.
Tom C. Clark: By new negotiations?
Wayne G. Barnett: Right, right. But they didn't specifically refer to Kenai Range as the 1955 regulation did. So I think the 1955 regulation is very explicit in treating the range as a whole as open to leasing. Now, respondent's final argument on that is to say well if it does it opens them henceforth and doesn't say anything about the status and the year previous to that when the applications were filed. Now, I suggest a number of reasons why that is not a permissible reading. It certainly had that the Secretary intended this as a modification of the Executive Order and not an interpretation of it. He would first of all have used the Public Land Order which is what the delegation said they should use for that purpose. And secondly, he would have done it by indirections, see, I got then that the inference by the exception and if he thought he was changing the status he wouldn't do it by indirection. And I think it's perfectly clear that this is based on his construction of the Executive Order as not barring mineral leasing.
Tom C. Clark: I understand that in their claim at bar, in Griffin -- Griffin filed too early.
Wayne G. Barnett: That is correct. Oh, I would think by -- with -- that this 1955 regulation as the plain interpretation of the Executive Order, arguably at least would ratify the action of the land office in accepting the leases or the applications for filing but we've not made that argument and I don't want to make it here. Now, when these new regulations were issued, one they didn't promised, it didn't satisfy anybody. It's still permitted too much leak and immediately Congress started to conduct hearings on the statute restricting leasing even further and it was then that they entered the agreement that they didn't report a bill but they agreed that the Secretary wouldn't issue anymore leasing -- leases in the meantime without first consulting the Committee and it's that time that they leased the Swanson River Unit with the prior approval of the Committee. So they took the regulations under study again and finally in 1958, they came out with a brand new version of the regulations, and that begins at page 6A of our brief. Now, this regulation is an almost complete victory for the coservationist forces. What it does, it treats with wildlife refuge lands exclusive of Alaska. And all wildlife refuge lands other than in Alaska it absolutely bars and prohibits leasing. That appears in paragraph B which says that no offers for oil and gas leases covering wildlife refuge lands which are defined over in paragraph A1 exclusive of Alaska. But it covers the rest of United States. No offers will be accepted and no leases covering such lands will be issued, period.
William O. Douglas: What page is that?
Wayne G. Barnett: That's on page 7A of the appendix to the government's brief.
Byron R. White: Well, they thought they had one in 1941?
Wayne G. Barnett: I'm sorry?
Byron R. White: They thought they had one under 1941 --
Wayne G. Barnett: Well I -- I deny that. They thought that then -- I -- they've been fighting the battle in the regulations. The --
Byron R. White: Well, would anyone think that wildlife ban was open to the leasing and no action was done.
Wayne G. Barnett: There's no evidence, there's nothing -- no action was taken.
Byron R. White: No one ever come to defense that if you get a mineral leasing and that --
Wayne G. Barnett: Well, there are a lot of areas that are open to mineral leasing that aren't -- no one applies on it. They don't apply -- a lease cost money. You then get to put down 50 cents an acre.
Byron R. White: Well, that's a simple one.
Wayne G. Barnett: Yes.
Byron R. White: This one you haven't probably -- that no one ever find -- the earliest (Voice Overlap)
Wayne G. Barnett: Well, I don't like (Inaudible), no one filed prior to October of 1954.
Byron R. White: Nobody filed in 1954?
Wayne G. Barnett: That is correct. That's correct for the purpose of this case. There were six other pending leases, there were five, some of them -- they were mistakes. We don't rely on that I just did not get into them. But October -- I think it was October 15th, 1954 is when Richfield filed and that's what set off the land rush is Richfield's filing.
Byron R. White: You know where this -- that this man or this company is relates to other oil development in the --
Wayne G. Barnett: This is the only -- I'm advised this is the only commercial oil and gas development in all of Alaska. Since all there is in Alaska.
Byron R. White: Well this is in -- in 1954 for the first time that anyone filed appropriate -- was interested in developing
Wayne G. Barnett: That's right, that's right.
Byron R. White: They spend their time with that.
Wayne G. Barnett: That's correct, that's correct. Now the 1958 regulation as I say close and forbad leasing entirely in all wildlife refuges in the United States between Alaska wildlife refuges as a separate category. As to them, it provided, and this is paragraph B3. As to game ranges, that is another category which I won't mention. As to Alaska wildlife areas, the Bureau of Land Management and the Fish and Wildlife Service are told to enter an agreement specifying those lands which shall not be subject to oil and gas leasing. And that agreement should come effective upon approval by the Secretary. And paragraph four in the next page, the second sentence goes on, it said the remaining lands in the Alaska wildlife areas of this section -- the remaining lands in paragraph A3 which I just read of this section is not close to oil and gas leasing will be subject to leasing on such conditions and stipulation as are stated in the agreement. Now, paragraph C on the same page at page 8A says that the agreements are to be published in the Federal Register and shall contain a description of the land affected thereby which are not subject to oil and gas leasing. And at the bottom of that paragraph that lease offers for such land but did not close by this order will not be accepted until after this new order is published. And it goes on to say in section B that all pending offers or applications filed on Alaska wildlife refuges will continue to be suspended until this agreement is announced. Now, the agreement that was to be raised between the Fish and Wildlife Service was reached and announced in August 2nd, 1958 and that appears on page 9A of our brief. And it starts out by saying a notice is given that an agreement has been reached designating those lands was in the Kenai National Moose Range which are hereby closed to oil and gas leasing.
William J. Brennan, Jr.: Mr. Barnett, I just want to ask, when was the actual leasing made? Before or after this?
Wayne G. Barnett: No, everything has been suspended since 1953.
William J. Brennan, Jr.: But we're still not up to the (Voice Overlap)
Wayne G. Barnett: We haven't started acting on these applications yet except with the special exception of the Swanson River Unit. And it goes to describe the land which aren't open and said the balance of land shall be subject to filing and then says on page 10A near the top offers the lease covering any of these lands which have been pending. These are specifically out with the Kenai Range which has been pending and upon which action was suspended will now be acted upon and adjudicated in accordance with the regulations. So we say that clearly recognize all these pending applications and directs that they now be acted upon final act.
Byron R. White: Well during these suspensions period as the land wasn't open for further filing.
Wayne G. Barnett: Yes it was. I think that's now agreed. The suspension was just a memorandum from the director of the bureau --
Byron R. White: This we don't actually --
Wayne G. Barnett: -- to his regional administrator. This is hold up and actually there was another memorandum which specifically said of course this doesn't affect continued filings or the priority, just don't issue the leases until we decide what we're going to do.
Byron R. White: Is that what the -- because you don't -- you don't suggest that during that specific period it withdraws the line, it withdraws the lease.
Wayne G. Barnett: No I would -- I think the respondents had one time made that argument, they don't make it here. I think it's now specially agreed that this was just internal -- it was never published any place. When one gets it out from some internal memorandum --
William J. Brennan, Jr.: But you are making the argument, are you making that -- are you making that argument that that last sentence would set it?
Wayne G. Barnett: Yes.
William J. Brennan, Jr.: Actions shall now be taken on pending that itself confirm that the Secretary was in the view and that at the time of the filing the Court --
Wayne G. Barnett: That is correct.
William J. Brennan, Jr.: The lease is open to the --
Wayne G. Barnett: That is correct. Now, let me say that the respondents have an explanation for that. They say what that means is that these two areas over here, area three and area two, where area three, no order ever withdrawn at it all, they could have filed it any time, it was unaffected. Though as a part f the refuge action would have been suspended. But you could apply at anytime and they said well also area two withdrawn in 1948, that withdrawal order was revoked in 1955. After 1955, this area they say, well, admittedly after 1955 this is -- and they say this reference is way to these pending applications in those two areas and not to all the applications in this area. Now, I will refer the Court to the press release issued -- I think I'm going to say so that it obviously is not limited to that, so I'm referring with press release at page -- quoted at page 23 of our brief in the footnote. On July 25, 1958, this is just before this order was announced, the Secretary issued a press release announcing the order. And what he said in the press release was that most of these lands that are available under this new order are now covered by applications that will be adjudicated. He acknowledged it on the issue as in fact all of the lands have already been filed on and the fact that you can now find new offers shouldn't be taking the promise very much because the whole area was already filed on and I think it's perfectly saying that throughout the regulations have treated and assumed that the range was open to leasing. One other point, well we don't have an argument that the Congress in fact endorsed that interpretation when the 1958 Act did added to the leases navigable waters. I don't want to go to that now, it's in our brief but I'm just taking note of it. And then I would like to turn to the language in the Executive Order to see if it can be read to support the Secretary's interpretation. The full text appears in the respondent's brief, this yellow brief, we didn't print the full text so I used his, it's on page -- it begins at page 1A. And the withdrawal of provision, however, begins -- the withdrawal of provision begins at the bottom of page 2A and carries over the top of page 3A. I want to emphasize that I post this with the guise loaded. The Secretary has already interpreted it and his interpretation noted, it's been acted on, it's been relied on, the Congress as in effect approved it and I don't know what interest would become vested in any other meaning of the words. And if there's any basis for the Secretary's interpretation it seems to me that a case by one in which that interpretation should be upheld. What we're looking for is something to support his interpretation not whether we can criticize it. But in fact I don't need to rely on that. I think the only reading of regulations where he read it and the Court of Appeals interpretation is the one that was unreasonable. What it says, that none of the above described lands except in these two parts over on the left shall be subject to settlement location or --
Hugo L. Black: Where is it stated in the brief?
Wayne G. Barnett: I'm sorry, page 2A of their brief -- the paragraph that begins in the bottom. None of the lands shall be subject to settlement locations, sale or entry or other disposition (except for fish trap sites) under any of the public land laws applicable to Alaska or to classification and lease under the provisions of an Act which authorizes for farming leases or an Act which authorizes grazing. And there's another proviso I'll rely on later. But right now, the first says it shall not be subject to settlement locations, sale or entry or other disposition. Now, settlement, location, sale or entry or terms that are in the land law. A settlement is what you do when you are homestead and you go on settle on the land and become entitled to a patent on to the land. A location is a mining location, you go out and stake out in location and record it and then if you discover mineral, you become entitled to a patent to the land as well as the minerals. And an entry is using a variety of ways which primarily of the initial act of settling for example, if you enter up on the lands or open the entry intending to settle and acquire title under the Homestead laws, you'll have a protected right to prefecture the right by staying on and that's generally on entry. Now, sale means I think it has no definition. Now, all of those four things plainly aren't involved complete alienations of the government's title. And I don't know how one can possibly say that either the application for a mineral lease or the issuance of mineral lease can fit under anyone of those words. I mean respondents haven't yet said which word they think it sits under.
William J. Brennan, Jr.: (Voice Overlap)
Wayne G. Barnett: That's the problem, so if it or I think it must come under four other dispositions.
William J. Brennan, Jr.: Well I don't think you can read such no other disposition.
Wayne G. Barnett: Oh no -- no their lack of –-
Byron R. White: You have to read other disposition except --
Wayne G. Barnett: Sure. Fish trap sites is a -- no one can explain why fish trap sites is there. I'd like to tell the Court it's not in our brief. I just discovered it that the Kodiak Bear Reservation was issued four months previously and it is exactly word for word this withdrawal provision without the fish trap site --
William J. Brennan, Jr.: But even so Mr. Barnett, if you've got an argument, you'll argue usually generously.
Wayne G. Barnett: Okay.
William J. Brennan, Jr.: You can ignore it except the fish trap sites but not give some color on whether this disposition made.
Wayne G. Barnett: Well, if so, it means you can't erect a hunting blind because what a fish trap site is it's just like a hunting blind. The Secretary does not grant permits to construct fish trap sites. His power is the power to regulate fishing and if he grants a permit, it's a permit to fish with fish trap sites. And the right to be on the land for that purpose is no different with any hunter or fisherman to be on the land. It doesn't give a permit to use the land. Now, the reasons it's there as far as one can guess and it is purely a guess is that as you know from the decisions to -- in 369 U.S. or the Metlakatla and Kake Indian, this is a very sensitive matter in Alaska, fish trap sites. The Indians have always claimed that they were economically appended on fishing by fish trap sites. The other people in Alaska have been filing it for years and now I guess they ultimately prevail in Kake. Now, at the time this order was issued in 1941, the only way I can explain that is assure the Indian that this isn't affecting your rights to fish. I think its wholly unnecessary, I don't simply add it. Now, the fact that the same language, word per word, the rest of the provision appears in the Kodiak withdrawal four months earlier and what I said, now, this is copied, it's a carbon copy of that withdrawal. Let me give a citation because it isn't cited in our brief. The Kodiak withdrawal is -- it's the Executive Order 8857, it's August 19th, 1941, 6 Federal Register 4287. And what happened apparently is they took that language and someone was concerned about the Indian's fish traps and they just took it in except for fish trap site.
Earl Warren: We'll recess now.