Alyeska Pipeline Service v. Wilderness Society Brief for the Respondents

    No. 73-1977

I n  T h e

B n p r m t  G I m t r t  $f %  I r n t e f t  B U U b
October T erm  1974

A lyeska  P ip e l in e  Service Co m pa n y ,
Petitioner

v.

T h e  W ilderness Society , E n v iro n m en ta l  
De fe n se  F und , I n c ., and  F riends of t h e  E a r t h ,

Respondents.

On Writ of Certiorari to the United States Court of Appeals 
for the District of Columbia Circuit

BRIEF FOR THE RESPONDENTS

Of Counsel:
J ohn  F . Dienelt

1101 17th Street, N.W. 
Washington, D.C. 20036

Thomas B. Stoel, J r . 
1710 N Street, N.W. 
Washington, D.C. 20036

December 30, 1974

Den n is  M. F lannery 
1666 K Street, N.W.
Washington, D.C. 20006

P aul Gewirtz 
J oseph  Onek

Center for Law and Social Policy 
1751 N Street, N.W.
Washington, D.C. 20036

Attorneys for Respondents,
The Wilderness Society, 
Environmental Defense Fund, 
Inc., and Friends of the Earth.

W i l s o n  - E p e s  P r i n t i n g  C o . .  In c . - R e  7 - 6 0 0 2  - W a s h i n g t o n , D.  C .  2 0 0 0 1



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES--------------------------------

OPINIONS BELOW --------- ---------------- ----------------

QUESTIONS PRESENTED_____________________

STATEMENT OF THE CASE ----- ------------- —-  

A. Introduction--------------------------------------- -----
B. Statement of Facts -------- --- ---------—.... -.........

1. Identification of the P a rtie s--------------------
2. Description of the Trans-Alaska Pipeline

System ----------------------------- --- --------------
3. Chronological Summary of the Litigation

Below________________________________
a. Events Preceding the Commencement of

Litigation ------------- -------------------------
b. Commencement of the Litigation and

Issuance of an Injunction-----------------
c. Events Preceding the Court of Appeals’

Decision on the M erits-----------------------
4. The Court of Appeals’ Decision on the

Merits -------------------------------- --------------
5. Public Law No. 93-153, 87 Stat. 576 ------
6. The Court of Appeals’ Decision Awarding

Attorneys’ Fees-----------------------------------

SUMMARY OF ARGUMENT ------ ----- --- --------------

ARGUMENT __ ______________________________

I. THE EQUITABLE POWER TO AWARD FEES 
IS NOT CONFINED TO RIGID SETS OF 
CASES _________________________________

IV

1

2

3

3
5
5

6

7

7

11

12

22

26

29

30

35

35



II

TABLE OF CONTENTS—Continued
Page

II. THE EQUITABLE FACTORS IDENTIFIED 
BY THE COURT SUPPORT A SHIFTING OF 
FEES FROM RESPONDENTS IN THIS 
CASE ______________________   39

A. The Factors Identified by the Court Are
Amply Supported by the Record _________  40
1. The Statutory Interests Involved Were

Im portant__________________________ 41
2. The Benefits Conferred by the Litigation

Were Substantial _________    45
3. Private Enforcement Was Required to

Vindicate the Statutory Interests and 
Confer the Benefits Identified by the 
Court_______________ ___ ______ __ - 54

4. The Litigation Placed Heavy Burdens on
Respondents and Their Counsel------------ 57

B. The Factors Identified by the Court Are Ap­
propriate Factors in Determining Whether to 
Shift Fees -------      59

III. THE EQUITABLE FACTORS PRESENT IN 
THIS CASE SUPPORT A SHIFTING OF RE­
SPONDENTS’ FEES TO ALYESKA________ 68

A. The Litigation Stemmed from Actions and
Decisions for Which Alyeska Was Directly 
Responsible  ....... ...................................... —  73

B. Alyeska Was a Real Party in Interest and
Took an Active Role in the Litigation.... .....  77

C. Alyeska Received Direct Benefits from the
Litigation and Is in a Position to Shift the 
Award to Other Beneficiaries of the Litiga­
tion ..........      78



I ll

TABLE OF CONTENTS—Continued
Page

D. The Mineral Leasing Act Imposed a Direct
Legal Obligation on Alyeska_____ _______  82

E. The Award of Fees Works No Hardship on
Alyeska_________________ ____ ________  83

F. Alyeska Was Not Prejudiced by the Lack of
an Award Against the Other Defendants . 84

IV. ALYESKA’S OTHER ARGUMENTS AGAINST 
THE AWARD OF FEES IN THIS CASE LACK 
MERIT ___________ __________ _________  87

A. Alyeska’s Arguments About “Success” Do
Not Apply to the Facts of This Case and 
Do Not Provide a Useful Guide for Other 
Cases____ ___    87

B. Alyeska’s Objections to Fee Awards for
Salaried Attorneys Lack Merit __________  91

C. In Making Its Award of Fees in This Case
the Court of Appeals Relied on Judicially 
Manageable Factors __________ _____ ..__  96

D. A Fee Award in This Case Will Not Lead
to Frivolous Litigation _______________  98

E. The Fee Award Need Not Be Limited to the
Salaries Earned by the Attorneys Involved-. 99

CONCLUSION __         102

APPENDICES............ ..........       la



IV

TABLE OF AUTHORITIES
CASES: Page

Allen v. State Board of Elections, 393 U.S. 544
(1969) .......____ ____ ________ ___________- 62

Arlington Coalition on Transp. v. Volpe, 458 F.2d 
1323 (4th Cir.), cert, denied, 409 U.S. 1000
(1972)   44

Assoicated Industries V. Ickes, 134 F.2d 694 (2d 
C ir),. vacated on other grounds, 320 U.S. 707
(1943) _______________________      62

Bell V. Hood, 327 U.S. 678 (1946) ___________  61
Best Medium Pub. Co. V. Nat’s Insider, Inc,, 385

F.2d 384 (7th Cir. 1967), cert, denied, 390 U.S.
955 (1968)_______________________________  89

Bivens V. Six Unknown Fed. Narcotics Agents, 403
U.S. 388 (1971) __________________________  62

Blau V. Rayette-Faberge, Inc., 389 F.2d 469 (2d
Cir. 1968) _______________________________  91

Blumenthal V. Lee Memorial Hospital, No. H-70-
C-5 (E.D. Ark., Aug. 6, 1971) _____ _________  90

Boddie V. Connecticut, 401 U.S. 371 (1971).........  63
Boys Markets, Inc. v. Retail Clerks, Local 770, 398

U.S. 235 (1970) _________________      96
Bradley V. Richmond School Board, 416 U.S. 696

(1974) ____________________ 57, 58, 65, 68, 93, 95, 97
Brandenberger V. Thompson, 494 F.2d 885 (9th

Cir. 1974)_______________________     68,93
Brewer V. Norfolk School Board, 456 F.2d 943

(4th Cir.), cert, denied, 406 U.S. 933 (1972)..... 81-82 
Brotherhood of R.R. Trainmen V. Chicago River &

Ind. R.R., 353 U.S. 30 (1957) ______________  96
Brown V. Balias, 331 F. Supp. 1033 (N.D. Tex.

1971)     70
Brown V. Board of Education, 347 U.S. 483

(1954)__________      92
California Motor Transp. Co. V. Trucking Unltd.,

404 U.S. 508 (1972) ______________________  63
Callahan V. Wallace, 466 F.2d 59 (5th Cir. 1972).. 82
Calnetics Corp. V. Volkswagen of America, Inc.,

353 F. Supp. 1219 (C.D. Cal. 1973)_________  71



V

TABLE OF CONTENTS—Continued
Page

Calvert Cliffs’ Coord. Comm. v. Atomic Energy
Comm’n, 449 F.2d 1109 (D.C. Cir. 1971).... .......  44

J. I. Case Co. V. Borak, 377 U.S. 426 (1964)_____ 61, 62
Central R.R. & Banking Co. V. Pettus, 113 U.S. 106

(1885) _____________________ ___ _________  36
Clark v. Board of Educ. of Little Rock School Dist.,

449 F.2d 493 (8th Cir. 1971), (en banc), cert.
denied, 405 U.S. 936 (1972) _____ ____ _______  90

Clark v. American Marine Corp., 320 F. Supp. 709 
(E.D. La. 1970), aff’d, 437 F.2d 959 (5th Cir.
1971) ____________________    101

Committee to Stop Route 7 V. Volpe, 4 ERC 1681
(D. Conn. 1972) __________________________  74

Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) ....... 67
Comist v. Richland Parish School Board, 495 F.2d

189 (5th Cir. 1974)________    67
Davy V. Faucher, 84 F. Supp. 737 (N.D. Fla.

1949) ___________________________________  89
D.C. Federation of Civic Ass’ns, Inc. V. Volpe, 434

F.2d 436 (D.C. Cir. 1970) _________ ____ _ 92
Denver Petroleum Corp. v. Shell Oil Corp., 306 F.

Supp. 289 (D. Colo, 1969)_____    83
Donahue V. Staunton, 471 F.2d. 475 (7th. Cir.

1972) , cert, denied, 410 U.S. 955 (1973)____  67
Environmental Defense Fund v. Hardin, 428 F.2d

1093 (D.C. Cir. 1970)________      92
Environmental Defense Fund V. TV A, 468 F.2d

1164 (6th Cir. 1972) _____  44
Esso Standard (Libya), Inc. V. S.S. Wisconsin, 54

F.Pv.D. 26 (S.D. Tex. 1971) ________________  89
Fairley V. Patterson, 493 F.2d 598 (5th Cir.

1974) _____________________________ 67,88,93,101
Farmers’ Loan & Trust Co. V. McClure, 78 F. 209

(8th Cir. 1897) __________________________  4-5
Fleischmann Distilling Corp. V. Maier Brewing

Co., 386 U.S. 714 (1967) __________________  4,85
Fowler V. Schwarzwalder, 498 F.2d 143 (8th Cir.

1974) 68



VI

TABLE OF AUTHORITIES—Continued
Page

Gateway Coal Co. V. United Mine Workers, 414
U.S. 368 (1974) _________________________  96-97

Gideon V. Wainwright, 372 U.S. 335 (1963)_____ 63
Gomillion V. Lightfoot, 364 U.S. 339 (1960)_____ 92
Greene County Planning Bd. V. FPC, 455 F.2d 412

(2d Cir.), cert, denied, 409 U.S. 849 (1972) ...... 76
Hall V. Cole, 412 U.S. 1 (1973) _____4, 36, 38, 60, 61, 64,

83-84, 85, 94, 96, 97
Hammond V. Housing Authority & Urban Renewal

Agency, 328 F. Supp. 586 (D. Ore. 1971) _____  . 90
Harper V. Mayor and City Council, 359 F. Supp.

1187 (D. Md. 1973)_____ ___ _______________  69
Henry v. Auchincloss, Parker & Redpath, 305 F.2d

753 (D.C. Cir. 1962) _____________________  77
Hines v. Perez, 242 F.2d 459 (9th Cir. 1957)____ 88
Hoitt V. Vitek, 495 F.2d 219 (1st Cir. 1974)___67, 93-94
Howerton V. Mississippi County, 361 F. Supp. 356

(E.D. Ark. 1973) ___________________ __ _ 89
Incarcerated Men V. Fair, 376 F. Supp. 483 (N.D.

Ohio 1973) ______ _______________________  69
Jinks V. Mays, 350 F. Supp. 1037 (N.D. Ga. 1972).. 70
Johnson V. Avery, 393 U.S. 483 (1969)________  63
Jones V. Alfred H. Mayer Co., 392 U.S. 409

(1968) __________________________________  61,62
Kirkland V. New York Dept, of Correct, Serv., 374

F. Supp. 1361 (S.D.N.Y. 1974) _____________  70
Knight V. Auciello, 453 F.2d 852 (1st Cir. 1972) ..... 67
La Raza Unida V. Volpe, 57 F.R.D. 94 (N.D. Cal.

1972), appeal pending ----------------------------58,69,94
Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971)..... 44
Lee V. Southern Home Sites Corp., 444 F.2d 143

(5th Cir. 1971) _______________ 59, 64, 67, 93, 95
Lewis V. Pennington, 400 F.2d 806 (6th Cir.),

cert, denied, 393 U.S. 983 (1968) ----------------  89
Lindy Bros. Builders, Inc. V. American Radiator 

and Standard Sanitary Corp., 487 F.2d 161 (3d 
Cir. 1973) 91



VII

TABLE OF AUTHORITIES—Continued
Page

Lyle V. Teresi, 327 F. Supp. 683 (D. Minn. 1971)... 69
McEnteggart V. Cataldo, 451 F.2d 1109 (1st Cir.

1971) , cert, denied, 408 U.S. 943 (1972)____  91
Mashak v. Hacken, 303 F.2d 526 (7th Cir. 1962).... 89
Miller v. Amusement Enterprises, Inc., 426 F.2d

534 (5th Cir. 1970)__________ ____________ 94,101
Mills V. Electric Auto-Lite Co., 396 U.S. 375

(1970)  ______ 4, 36, 60, 63, 64, 72, 81, 85, 88, 96
Mitchell V. Robert De Mario Jewelry, Inc., 361 U.S.

288 (1960) ___________________________    62
Moragne V. States Marine Lines, Inc., 398 U.S. 375

(1970) __________________________________  63-64
NAACP V. Allen, 340 F. Supp. 703 (M.D. Ala.

1972) , aff’d, 493 F.2d 614 (5th Cir. 1.974)...58, 69, 82
NAACP  V. Button, 371 U.S. 415 (1963)________ 63
National Helium Corp. v. Morton, 455 F.2d 650

(10th Cir. 1971) ________ ___ _______ _____ _ 44
National Safe Deposit, Sav. & Trust Co. V. Hibbs,

229 U.S. 391 (1913) ________________________ 77
Natural Resources Defense Council V. EPA, 484

F.2d 1331 (1st Cir. 1973) __________________  91
Newman V. Alabama, 349 F. Supp. 278 (M.D. Ala.

1972) ______ ___ ____________________ __-  69, 82
Newman v. Piggie Park Enterprises, Inc., 390 U.S.

400 (1968) _________  .......59,64-65,92-93,94,95
Northeross v. Memphis Board of Education-, 412

U.S. 427 (1973) ______ __ _________________ 65, 93
Office of Communications of United Church of

Christ V. FCC, 359 F.2d 994 (D.C. Cir. 1966)..... 62, 98 
Oster v. Rubinstein, 142 F. Supp. 620 (S.D.N.Y.

1956) _____      89
Palmer v. Columbia Gas, Inc., 375 F. Supp. 634

(N.D. Ohio 1974)_________________________ 70-71
Parham V. Southwestern Bell Tel. Co., 433 F.2d

421 (8th Cir. 1970) ______  90
Poe V. Uliman, 367 U.S, 497 (1961)___________  26
Pompton V. Cooper Union, 101 U.S. 196 (1879).... 76-77



VIII

TABLE OF AUTHORITIES—Continued
Page

Porter v. Warner Holding Co., 328 U.S. 395
(1946) __________________________________  61, 86

F. D. Rich Co. V. United States, 417 U.S. 116
(1974) _________________________ 3,35,38-39, 59-60

Ross V. Goshi, 351 F. Supp. 949 (D. Hawaii 1972)... 70
Hill V. Flota Mercante Grancolombiana, S'.A.,

267 F. Supp. 380 (E.D. La. 1967), aff’d, 405 
F.2d 878 (5th Cir.), cert, denied, 395 U.S. 934
(1969) __________________________________  77

Ryan V. Spaniol, 193 F.2d 551 (10th Cir. 1951).— 77
Scenic Hudson Preserv. Conf. V. FPC, 354 F.2d 

608 (2d Cir. 1965), cert, denied, 384 U.S. 941
(1966) __________________________________  ' 92

Scenic Hudson Preserv. Conf. v. FPC, 453 F.2d 
463 (2d Cir. 1971), cert, denied, 407 U.S. 926
(1972) __________________________________  44, 50

Scott V. Opelika City Schools, 63 F.R.D. 144 (M.D.
Ala. 1974) ___________________ ____________  70

Shelley V. Kraemer, 334 U.S. 1 (1948) _________  92
Sierra Club V. Lynn, 502 F.2d 43 (5th Cir. 1974) 68, 78-

80, 84
Sierra Club v. Morton, 405 U.S. 727 (1972)_____ 20, 41,

44, 98
Sims V. Amos, 340 F. Supp. 691 (M.D. Ala.), aff’d,

409 U.S. 942 (1972)_____________________ 68-69,82
Sprague V. Ticonic Nat’l Bank, 307 U.S. 161

(1939) ________________ 3, 4, 36, 37, 38, 72, 81, 88-89
Sprague V. Ticonic Nat’l Bank, 110 F.2d 174 (1st

Cir. 1940) _______________________   37
Stanford Daily v. Zurcher, 366 F. Supp. 18 (N.D.

Cal. 1973) _______________________________  70
Steele v. Louisville & Nashville R.R., 323 U.S. 192

(1944)   62
Stolberg V. Members of Bd. of Trustees for State

Colleges, 474 F.2d 485 (2d Cir. 1973)________ 68
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

(1969) _____       61
Sweatt V. Painter, 339 U.S. 629 (1950)---------------  92



IX

TABLE OF AUTHORITIES—Continued
Page

Switzer Bros., Inc. V. Chicago Cardboard Co., 252
F.2d 407 (7th Cir. 1958) ___________________  89

James Talbott, Inc. V. Associates Discount Corp.,
302 F.2d 443 (8th Cir. 1962)._______ _______  77

Taylor V. Perini, 503 F.2d 899 (6th Cir. 1974)___ 67
Texas & P. Ry. V. Rigsby, 241 U.S. 33 (1916)___ 62
Textile Workers Union v. American Thread Co,,

271 F.2d 277 (4th Cir. 1959)________________ 89
Thomas V. Honeybrook Mines, Inc., 428 F.2d 

981 (3d Cir. 1970), cert, denied, 401 U.S. 911
(1971)____________________     90

Thonen V. Jenkins, 374 F. Supp. 134 (E.D. N.C.
1974) ______________    70

Trafficante V. Metropolitan Life Insurance Co., 409
U.S. 205 (1972) _________________      61-62

Trustees v. Greenough, 105 U.S. 527 (1882)......4, 36, 98-
99

Union P. Ry. Co. V. Chicago, R.I. & P. Ry., 163
U.S. 564 (1896) __________________________  38

United States V. Morgan, 307 U.S. 183 (1939)___ 61
United States V. Schooner Peggy, 5 U.S. (1

Cranch) 103 (1801)____________    97
United States v. SCRAP, 412 U.S. 669 (1973)___ 44, 62
Virginia Ry. V. System Federation, 300 U.S. 515

(1937) ________________________    61
Webb V. Baxley, No. 3564-N (M.D. Ala., Jan. 18,

1973)_ ______     90
Whitehead V. American Secur. & Trust Co., 285

F.2d 282 (D.C. Cir. 1960) _________________  77
Wilderness Society v. Hickel, 325 F. Supp. 422

(D.D.C. 1970) .....        12,56
IWilderness Society v. Morton, 4 ERC 1467 (D.D.C.

1972) _______     22
Wilderness Society v. Morton, 479 F.2d 842, cert, 

denied, 411 U.S. 917 (1973) (Wilderness So-

Wilderness Society v. Morton, 495 F.2d 1026 (D.C.
Cir. 1974) (Wilderness Society II) _______ .....passim



X

TABLE OF AUTHORITIES—Continued
Page

Winchell V. Moffat County State Bank, 807 F.2d
280 (10th Cir. 1962) _____________________  77

Wyandotte Transp. Co. V. United States, 389 U.S.
191 (1967) ______________________________  62

Wyatt V. Stickney, 344 F. Supp. 387 (M.D. Ala.
1972), appeal pending--------------------------------  69-70

Yablonski V. United Mine Workers of America,
466 F.2d 424 (D.C. Cir. 1972), cert, denied, 412
U.S. 918 (1973) __________________________  88

Zabel V. Tabb, 430 F.2d 199 (5th Cir. 1970), 
cert, denied, 401 U.S. 910 (1971) -----------------  44-45

CONSTITUTIONAL AND STATUTORY PROVI­
SIONS:

U.S. Constitution:
Art. IV, § 3, cl. 2 _____________ ___ ______  24

Civil Rights Act of 1964:
42 U.S.C. § 2000a-3 (1970) _____   91,92

Clean Air Amendments of 1970:
42 U.S.C. § 1857(a) et seq. (1970) ......42,57,65-66,

90, 92, 97

Federal-Aid Highway Act of 1966:
23 U.S.C. § 138 (1970)__________ _______  42

Federal Water Pollution Control Act Amendments 
of 1972:

33 U.S.C. § 1251 et seq. (Supp. II, 1972) ...42, 57, 65-
66, 90, 92, 97

Freedom of Information Act Amendments:
Pub. L. No. 93-502, 88 Stat. 1561 (1974)___ 65

Judicial Code:
28 U.S.C. §2412 (1970) ...... ...... ............. ~ ~  30,85



XI

TABLE OF AUTHORITIES—Continued
Page

Marine Protection, Research, and Sanctuaries Act
of 1972:

33 U.S.C. § 1401 et seq. (Supp. II, 1972) ......  42
Mineral Leasing Act of 1920:

30 U.S.C. § 185 (1970) ________ __ _____ _passim
National Environmental Policy Act of 1969:

42 U.S.C. § 4321 et seq. (1970) ....... .......... ..... passim
Noise Control Act of 1972:

42 U.S.C. § 4901 et seq. (Supp. II, 1972)____ 42
Pub. L. No. 93-153, 87 Stat. 576:

30 U.S.C.A. § 185 (Supp. 1974),
43 U.S.C.A. § 1651 et seq. (Supp. 1974) ....26-28,51-

54, 55, 81, 86
LEGISLATIVE MATERIALS:

S. Rep. No. 93-854, 93d Cong., 2d Sess. (1974).... 65
H.R. Rep. No. 93-624, 93d Cong., 1st Sess. (1973).. 27
H.R. Rep. No. 93-617, 93d Cong., 1st Sess. (1973). 27
H.R. Rep. No. 93-420, 93d Cong., 1st Sess. (1973).. 26-27
H.R. Rep. No. 93-414, 93d Cong., 1st Sess. (1973).. 26, 28
S. Rep. No. 93-207, 93d Cong., 1st Sess. (1973).... 26,28 
H.R. Rep. No. 92-911, 92d Cong., 2d Sess. (1972).. 65
S. Rep. No. 92-414, 92d Cong., 1st Sess. (1971) ..65, 66, 90 
S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970).. 65, 66,

90
S. Rep. No. 91-296, 91st Cong., 1st Sess. (1969).. 42-43 
119 Cong. Ree.

S13,689-90 (daily ed. July 17, 1973)........... . 27
H7281-82 (daily ed. Aug. 2, 1973) ________  27

Hearings on H.R. 9130 Before the Subcomm. on 
Public Lands of the House Comm, on Interior 
and Insular Affairs, 93d Cong., 1st Sess., Ser. 
No. 93-12, pts. 1, 2, and 3 (1973) ___________ 26



XII

TABLE OF AUTHORITIES—Continued
Page

Hearings on S. 1040, S. 1041, S. 1056, S. 1081 Be­
fore the Senate Comm, on Interior and Insular 
Affairs, 93d Cong., 1st Sess., pts. 1 and 2
(1973) ____ _____________________________  26, 50

Hearings on S. 970, S. 993, S. 1565 Before the 
Senate Comm, on Interior and Insular Affairs,
93d Cong., 1st Sess., pts. 3 and 4 (1973) -------  26, 28

Oversight Hearings on the National Environmental 
Policy Act and Its Implementation Before the 
Senate Comms. on Public Works and Interior 
and Insular Affairs, 92d Cong., 1st Sess. (1972) 73

Hearings on S. 35, S. 835 and S. 1571 Before the 
Senate Comm, on Interior and Insular Affairs,
92d Cong., 1st Sess., pt. 2 (April 20, 1971)----  73

Hearings on S. 1075, S. 237 and S. 1752 Before 
the Senate Comm, on Interior and Insular Af­
fairs, 91st Cong., 1st Sess. (1969) ...---------------  43

RULES:

U.S. Sup. Ct. R. 57 (1970) ............. .......... ..............  89
Fed. R. Civ. P. 54(d) ____________ ___ _______  89

MISCELLANEOUS:

ABA, Code of Professional Responsibility D.R.
2-106____________________________________  99

Address by the Honorable Russell E. Train to the 
Joint Judicial Conference of the Eighth and 
Tenth Circuits, June 29, 1973 -------------- 7, 45, 46, 47

Alaska Construction & Oil:

February 1971 
June 1974____

The Alaska Pipeline, Smithsonian (Vol. 5, No. 7)
(October 1974) ------------- ----------- ---- -....... —- 47

Atomic Energy Commission, 39 Fed. Reg. 26279,
§§ 51.20, 51.21 (July 18, 1974) ........................ 76

50
47



XIII

TABLE OF AUTHORITIES—Continued
Page

Comment, Court Awarded Attorney’s Fees and
Equal Access to the Courts, 122 U. Pa. L. Rev.
636 (1974) ........ ........ .......... ..................... ..........  3

Council on Environmental Quality, 40 C.F.R., ch.
V, § 1500.7(c)   _______________________ 76

Department of Agriculture: Rural Electrification 
Administration, 39 Fed. Reg. 23240 § V (D) (2)
(June 27, 1974)__________________________  76

Department of the Interior, Regs, part 516, ch.
2.9(F)(2) .......... ....... ......................... ....... ..........  76

Department of Transportation, 39 Fed. Reg. 35234,
§ 7(e) (Sept. 30, 1974) ______ ____________  76

Derfner, Attorneys’ Fees in Pro Bono Publico 
Cases, reprinted in Hearings on The Adequacy 
of Representation Before the Subcomm. on Rep­
resentation of Citizen Interests of the Senate
Judiciary Comm., 93d Cong., 1st Sess., pts. 3
and 4, at 862 (1973) ______ _________ ____ _ 71

Developments—-Discovery, 74 Harv. L. Rev. 940
(1961) ____________________ - ........... ........ .. 63

Environmental Quality: Second Annual Report of
the Council on Environmental Quality (1971).... 56

Ford Foundation: Annual Report (1973) ...........  95
Fortune, May 1973 ------ ---- --- ---------------- -------  57
Goodhart, Costs, 38 Yale L. J. 849 (1929) _____  3
Law Enforcement Assistance Administration, 28

C.F.R. §§ 19.9(b) (2), (b) (5), (c) ........ ...... . 76
Legal Defense Fund: A Report to the American

People (1974) ..... ....... ............................. .............  95
Martindale-Hubbell Law Directory, vol. 1 (1974).. 57
McCormick, Counsel Fees and Other Expenses of 

Litigation as an Element of Damages, 15 Minn.
L. Rev. 619 (1931) .„„„.... .......... ........................  3-4

6 Moore’s Federal Practice (1972) -----------------  89
1974 National Petroleum News Factbook______  57, 81
N. Y. Times, Dec. 15, 1974, p. 1, col. 5 _________  94
President Nixon’s Special Message to the Congress 

Outlining the President?s 1972 Environmental 
Program, 8 Pres. Doc. 218-19 (Feb. 8, 1972)----  43



XIV

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Page

Nussbaum, Attorney’s Fees in Public Interest Liti­
gation, 48 N.Y.U. L. Rev. 301 (1973) _______  4

Rockefeller Brothers Fund: Annual Report
(1973) ..........- .......... _ ....... - ------------------------  95

Stoebuck, Counsel Fees Included in Costs: A 
Logical Development, 38 U. Goto. L. Rev. 202
(1966) ________________ ___________ ______  4

Ten Year Report: Lawyers’ Committee for Civil
Rights Under Law (1973) _________________  95

The Wilderness Society: The Directors’ Annual 
Report (1974) _______ _____________ ___ — 95



In The

Bnptnm (&mvt of flairs
October T erm  1974

No. 73-1977

A lyeska  P ip e l in e  Service Com pa ny ,
Petitioner

v.

T h e  W ilderness Society , E nvironm ental  
De fe n se  F und , I n c ., and  F riends of t h e  E a rth ,

Respondents.

On Writ of Certiorari to the United States Court of Appeals 
for the District of Columbia Circuit

BRIEF FOR THE RESPONDENTS

OPINIONS BELOW

The opinion of the United States Court of Appeals 
for the District of Columbia Circuit is reported at 
495 F.2d 1026 (1974) and will be referred to herein 
as “Wilderness Society II.” The opinion of the court 
of appeals on the merits of the case is reported at 
479 F.2d 842, cert, denied, 411 U.S. 917 (1973),



2

and will be referred to herein as “Wilderness Society 
I ”

QUESTIONS PRESENTED

1. Whether, following its adjudication on the 
merits of the Trans-Alaska Pipeline controversy, the 
court below had the equitable power to authorize a 
partial shifting of fees from respondents to petitioner.

2. If so, whether the shifting of fees authorized 
by the court was an abuse of discretion when the 
record supports the conclusions that:

a. Respondents’ successful litigation vindicated im­
portant Congressional policies and led to substantial 
benefits, including legislation imposing significant 
new environmental, technological and other safe­
guards; the litigation was necessary to achieve those 
ends; and the litigation, undertaken by respondents 
as private citizens for no economic gain, was mas­
sive and placed heavy burdens on respondents and 
their counsel; and

b. The Trans-Alaska Pipeline was conceived and 
proposed by petitioner; the litigation resulted from 
actions and decisions for which petitioner was re­
sponsible (and, in the case of the Mineral Leasing 
Act, from obligations that were directly enforceable 
against petitioner); the economic gain that petitioner 
hoped to derive from the pipeline made it the real 
party in interest in the litigation; petitioner took a 
major and active role in the litigation to protect its 
economic interests; petitioner received direct benefits 
from the litigation and can distribute the award 
among other beneficiaries; and the award does not 
otherwise work any hardship or unfairness on pe­
titioner.



3

STATEMENT OF THE CASE 

A. Introduction

Attorneys’ fees are not ordinarily recoverable in 
the absence of a statute or enforceable contract pro­
viding therefor. This is the traditional American rule. 
Just last Term this Court reaffirmed the appropriate­
ness of the rule in “everyday commercial litigation.” 
F. D. Rich Co. v. United States, 417 U.S. 116, 130 
(1974). The rule and its basic rationale were ac­
cepted by the court below.1 Neither is being chal­
lenged in this case.

What is in issue is the application to the facts of 
this case of an equitable power that is as “traditional” 
and “historic” as the American rule itself. It is the 
power of federal courts to award attorneys’ fees “in 
exceptional cases and for dominating reasons of jus­
tice.” Sprague v. Ticonic National Bank, 307 U.S. 
161, 167 (1939).2 When reviewing awards of fees

1 The decision below was prefaced by an acknowledgement 
that: “ [T]he American rule barring attorneys’ fees to suc­
cessful litigants except in extraordinary circumstances is 
based on important policies of its own. But if the matter is 
examined closely . . . .  an award of fees in the present case 
may be justified by reference to the very same policies.” 
Wilderness Society II, 495 F.2d at 1031.

2 As the Court noted in Sprague, the power of federal 
courts to award fees derives from “the original authority of 
the chancellor to do equity in a particular situation.” 307 
U.S. at 166. See cases and authorities cited at 307 U.S. 164 
n.l, 165 n.2. See generally Comment, Court Awarded A t­
torney’s Fees and Equal Access to the Courts, 122 U. Pa. L. 
Rev. 636, 645 (1974); Goodhart, Costs, 38 Yale L. J. 849, 854 
(1929); McCormick, Counsel Fees and Other Expenses of 
Litigation as an Element of Damages, 15 Minn. L. Rev. 619,



4

by lower federal courts, this Court has been con­
cerned primarily with whether the fee award in a 
particular case was beyond the power of the lower 
court.3 Once satisfied on this point, the Court has 
traditionally recognized that the court with detailed 
knowledge of the case is usually in a better position 
to make the “ultimate judgment . . .  as to the fair­
ness of making an award, or the extent of such an 
award.” Sprague, 307 U.S. at 167.4

619-20 (1931); Stoebuck, Counsel Fees Included in Costs: 
A Logical Development, 38 U. Colo. L. Rev. 202, 204-05 
(1966); Nussbaum, Attorney’s Fees in Public Interest Liti­
gation, 48 N.Y.U. L. Rev. 301, 313-14 (1973).

3 See, e.g., Hall V. Cole, 412 U.S. 1, 4-14 (1973); Mills V. 
Electric Auto-Lite Co., 396 U.S. 375, 389-397 (1970); Fleisch- 
mann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 
714-15 (1967); Sprague, supra, 307 U.S. at 164; Trustees V. 
Greenough, 105 U.S. 527, 537 (1882).

4 See, e.g., Hall V. Cole, 412 U.S. at 14-15 (standard of 
review is whether “the award of counsel fees to respondent 
under the facts of this case constituted an abuse of the district 
court’s discretion”) ; Trustees V. Greenough, 105 U.S. at 537 
(the court below should have “considerable latitude . . . since 
it has far better means of knowing what is just and reason­
able” ) .

As Circuit Judge Walter Sanborn stated many years ago in 
a case reviewing the amount of an attorneys’ fee award:

“The judge who entered this decree below was familiar 
with the proceedings in his own court, with the char­
acter of this litigation, with the controversies, if any, 
that had arisen in it, with the amount of services that 
had been rendered by each of the solicitors, and with 
every step that had been taken in the case . . . .  Its 
finding and decree thereon . . . must be taken as pre­
sumptively correct; and, unless an obvious error has 
intervened in the application of the law, or some serious 
or important mistake has been made in the considera-



5

The decision below rests on a judgment by the court 
that adjudicated the Trans-Alaska Pipeline contro­
versy (1) that overriding equitable factors were pres­
ent in the case that support a shifting of fees from 
respondents and (2) that, in the circumstances of the 
case, it was fair and equitable to shift a portion 
of those fees to the Alyeska Pipeline Service Company 
(“Alyeska”). Respondents respectfully suggest that 
an understanding of the record on which the court’s 
judgment rests requires a fuller factual statement 
than that set forth in Petitioner’s Brief (“P. Br.” ) .

B. Statement of Facts

1. Identification of the Parties

Petitioner, Alyeska Pipeline Service Company, is 
owned by a consortium consisting of Exxon Pipeline 
Company, Mobil Pipeline Company, ARCO Pipeline 
Company, Phillips Petroleum Company, Union Oil 
Company of California, Sohio Pipeline Company, and 
Amerada-Hess Corporation. Those companies, or 
their beneficial ov/ners, hold the rights to explore 
and develop the substantial oil and natural gas re­
sources in Prudhoe Bay on the North Slope of Alaska. 
Alyeska was formed to construct and operate the 
Trans-Alaska Pipeline System—the system Alyeska’s 
principals have chosen to transport oil from Prudhoe 
Bay to markets in the lower 48 states.

Respondents, The Wilderness Society, Environ­
mental Defense Fund, Inc., and Friends of the Earth,

tion of the evidence, the decree should be permitted to 
stand.” Farmers’ Loan & Trust Co. V. McClure, 78 F. 
209, 210 (8th Cir. 1897).



6

are non-profit organizations. Each of the organiza­
tions has had a long-standing concern for the Alaskan 
environment and a commitment to preserve it for 
present and future generations.

2. Description of the Trans-Alaska Pipeline System

The Trans-Alaska Pipeline System has come to 
be recognized as the “most complex” and “most eco­
logically sensitive” private engineering project ever 
attempted.5 The overland portion of Trans-Alaska 
Pipeline System will traverse the State of Alaska 
from Prudhoe Bay on Alaska’s North Slope to the 
Port of Valdez on Prince William Sound in the south 
-—a distance of some 800 miles (641 of which cross 
federal public lands). From Valdez the oil will be 
loaded onto tankers to be transported through Prince 
William Sound and down the Northeast Pacific.

At Appendices A and B, respectively, respondents 
have reproduced from their papers below a descrip­
tion of the Trans-Alaska Pipeline System and a com­
pilation of some of its still-unknown environmental

5 Statement of Under Secretary of the Interior, William T. 
Pecora, contained in record below at P. Docs. Ill, Tab B, at 
4 (R. 207).

Documents in the record below will be cited either as “Ad. 
Rec.,” which refers to the documents collected by Interior 
Department lawyers and designated by them as the “Ad­
ministrative Record” (R. 239); “FIS,” which refers to the 
Interior Department’s Final Impact Statement on the project 
(R. 239); and “Rule 9(h) Documents” and “P. Docs.,” which 
refer to compilations of documents introduced into the record 
by respondents in the proceedings below (R. 152, R. 207).



7

ramifications.6 Both Appendices are based entirely 
on statements contained in the Interior Department’s 
Final Impact Statement. They will, hopefully, place 
the litigation in context by conveying some under­
standing of the environmental and technological prob­
lems posed by the Trans-Alaska Pipeline. For, as 
Russell E. Train has observed:

“ [T]he case of the Alaska pipeline has not been 
simply one of aesthetics, or of concern over wild­
life and wilderness disturbance, or worries over 
water pollution, important as all of these are. 
It was clearly an example where sound environ­
mental analysis was essential to sound engineer­
ing.” 7

3. Chronological Summary of the Litigation Below

a. Events Preceding the Commencement of Litigation

In August 1968, substantial oil and gas reserves 
were discovered on the Alaskan North Slope. In

6 Appendix A is taken verbatim from pages 3-12 of Re­
spondents’ Brief on National Environmental Policy Act Issues 
(R. 206).

Appendix B, is taken verbatim from Appendix B of the 
Appendices to Respondents’ Brief on National Environmental 
Policy Act Issues (R. 207).

7 Address by the Honorable Russell E. Train to the Joint 
Judicial Conference of the Eighth and Tenth Circuits, June 
29, 1973, quoted at Wilderness Society II, 495 F.2d at 1033 
n.3.

Mr. Train (who is now Administrator of the Environmental 
Protection Agency) was Under Secretary of the Interior 
and Chairman of the Federal Task Force on Alaskan Oil 
Development when Alyeska’s principals first submitted their 
proposal.



8

June 1969, the interested oil companies, Alyeska’s 
principals, filed with the Interior Department a for­
mal application for an oil pipeline right-of-way across 
the public lands of Alaska.8 Alyeska’s principals 
recognized from the outset that the right-of-way 
allowed by statute was not adequate for the pipeline 
they proposed:

“The 5 It' R.O.W. [right-of-way] which is al­
lowed by statute is not adequate for the con­
struction of a Jf8" pipeline. The R.O.W. should 
be TOO' width to accommodate the extremely 
large equipment that is necessary to handle the 
48" pipe, and the large spoil [from] excavated 
soil . . . .” (Emphasis added).9

And supplemental papers filed by them at the time 
contained only generalized descriptions about how 
they proposed to construct the pipeline.10 Nonethe­
less, they requested right-of-way permits “by July” 
so that construction-related activities could begin 
immediately.11

The permit application was referred to a Federal 
Task Force, which, on September 15, 1969, issued 
a report which concluded that the oil companies

8 Ad. Rec. 1.1.1.2 (R. 239).
9 Letter from Kenneth P. Fountain, attorney for the Trans- 

Alaska Pipeline System to the Honorable Russell E. Train 
(then Under Secretary of the Interior), June 10, 1969, Rule 
9(h) Documents, Tab B, p. 102 (R. 152) (Jt. App. 46).

10 See, e.g., Trans-Alaska Pipeline System’s Answers to 
Questions, June 19, 1969, P. Docs. I, Tab F; Ad. Rec. 1.1.2.1 
(R. 207, R. 239).

11 Letter from Kenneth P. Fountain, supra, Rule 9(h) Doc­
uments Tab B, p. 101 (R. 152) (Jt. App. 43).



9

“had not adequately finalized their own plans on a 
technological level” and were not in a position even 
to “use data from their own ongoing studies.” 12 The 
report also concluded that a “complex and interre­
lated scope of environmental, technological, social 
and legal problems” remained to be solved.13 In­
cluded among the legal problems identified in the 
report was the absence of statutory authority for 
the right-of-way requested.14

12 Preliminary Report to the President, Federal Task Force 
on Alaskan Oil Development, September 15, 1969, Rule 9 (h) 
Documents, Tab C, p. 3; Ad. Rec. 1.1.2.1 (R. 152, R. 239) 
(Jt. App. 81).

13 Id. at 5 (Jt. App. 82). The environmental problems 
identified in the report related to permafrost, seismic activity, 
water pollution (both with regard to the overland portion and 
in the operation of tankers on the marine leg of the system), 
and impacts on fish and wildlife.

14 The report contained the following:
“Width of the right-of-ivay: The application requests a 
54-foot wide pipeline right-of-way together with an ad­
ditional parallel and adjacent 46-foot right-of-way. Fur­
ther, for all sections between Livengood and the North 
Slope, the applicants request another 100-foot right-of- 
way for a construction road, making a total requirement 
of 200 feet in width for that distance.
“The authorizing statute (30 U.S.C. 185) limits pipe­
line rights-of-way to 25 feet on either side of center line, 
or to a total of 54 feet. Discussions are continuing 
between the Department and TAPS to determine the 
exact method by which TAPS will acquire the additional 
46 feet for the pipeline right-of-way and the further 
addition of a 100-foot right-of-way for a construction 
road.” Id. at 11 (Jt. App. 86).



10

Throughout the remainder of 1969, and the early 
months of 1970, Alyeska’s principals pressed for the 
commencement of the pipeline-related construction.15 
Their efforts were successful in part when, in March 
1970—at a time wThen the “complex and interrelated 
. . . environmental, technological, social and legal 
problems” referred to by the Task Force remained 
largely unsolved and barely two months after the en­
actment of the National Environmental Policy Act— 
Secretary Hickel announced that the first stage of 
pipeline-related construction, a haul road for the 
pipeline from the Yukon River to the North Slope, 
was about to begin.16 That authorization was recog­
nized within the Interior Department as approval of 
the pipeline itself:17 On March 20, 1970, to “fulfill the 
requirements of Section 102(2) (c) of the National 
Environmental Quality [sic] Act of 1969,” a cursory 
seven-page document titled “Environmental State­
ment: Yukon River-North Slope Road” was for­
warded to the Council on Environmental Quality.18

15 See, e.g., Department of the Interior News Release, 
January 14, 1970, P. Docs. I, Tab I (R. 207).

16 Letter from Secretary Hickel to President Nixon, March 
5, 1970, P. Docs. I, Tab K (R. 207).

17 Memorandum for the Record of North Slope Task Force 
Working Group Meeting, June 17, June 18, 1969, P. Docs. I 
Tab K (“once we sanction any part of the road right-of-way 
we are actually approving the pipeline and furthermore render 
it difficult or impossible to make major route changes . . . . ”) 
(R. 207).

18 P. Docs. I, Tab K (R. 207).



11

b. Commencement of the Litigation and Issuance of 
an Injunction

The decision to proceed with the project in this 
manner led respondents to seek the assistance of 
counsel. Recognizing that a major, ongoing legal 
effort would be required which they could not them­
selves afford and which, whatever its outcome, would 
result in no award of monetary damages, respond­
ents obtained the assistance of attorneys from the 
Center for Law and Social Policy. The Center is 
modelled along the lines of such organizations as the 
NAACP Legal Defense and Educational Rund. Its 
attorneys provide legal representation in poverty law, 
consumer, environmental, and other areas to groups 
and individuals who, for economic reasons, cannot 
obtain legal representation from traditional law 
firms.19

On March 26, 1970, respondents filed a complaint 
against the Secretary of the Interior (R. 1A) and a 
Motion for Preliminary Injunction, together with ex­
tensive affidavits from zoologists, biologists, ornithol­
ogists, geologists, seismologists, botanists, and pipe­
line engineers (R. 3A). On April 23, 1970, the dis­
trict court held that irreparable injury was likely to 
result from the commencement of the construction- 
related activities in question and granted respondents’ 
Motion for Preliminary Injunction (R. 26). The in­
junction was premised on two grounds: (1) that the 
application of Alyeska’s principals exceeded the limi­
tations that Congress had established in Section 28

19 As the litigation progressed, additional legal assistance 
was provided by attorneys on the staffs of the Environmental 
Defense Fund and the Natural Resources Defense Council.



12

of the Mineral Leasing Act of 1920 (30 U.S.C. § 185) 
on the amount of public lands that could be diverted 
to pipeline use; and (2) that the environmental and 
other safeguards set forth in the National Environ­
mental Policy Act of 1969 (42 U.S.C. § 4321 et seq.) 
had not been applied to the project. Wilderness 
Society v. Hickel, 325 F. Supp. 422 (D.D.C. 1970).

c. Events Preceding the Court of Appeals’ Decision 
on the Merits

On January 15, 1971, almost a year after the is­
suance of the preliminary injunction, the Interior 
Department published a “Draft Impact Statement” 
on the proposed pipeline. Ad. Rec. 2.13 (R. 239).20 
Discovery disclosed that before publication drafts of 
the statement were given to Alyeska and substan­
tial revisions were made at Alyeska’s behest to de­
lete or soften numerous negative observations about

20 In the interim, respondents had undertaken an extensive 
discovery effort in the district court. See, e.g., Interrogatories 
of Plaintiff [hereinafter referred to as “Respondents”] to 
Defendant, May 20, 1970 (R. 27); Interrogatories of Re­
spondents to Defendant, June 12, 1970 (R. 31); Request of 
Respondents for Defendant To Produce for Inspection Cer­
tain Documents, July 20,1970 (R. 36); Motion of Respondents 
To Compel Answers to Interrogatories, July 24, 1970 (R. 37); 
Request of Respondents for Admissions Pursuant to Rule 36, 
August 20, 1970 (R. 43); Request of Respondents for Produc­
tion of Documents, September 30, 1970 (R. 46); Motion of 
Respondents To Compel Answers to Interrogatories and In­
spection of Documents, November 10, 1970 (R. 52); Supple­
mental Memorandum of Respondents in Support of Their 
Motion to Compel Answers to Interrogatories and Inspection 
of Documents, December 8, 1970 (R. 56); Interrogatories to 
Defendant as Amended, February 22, 1971 (R. 60).



13

the proposal.21 At substantial cost and effort, re­
spondents arranged for expert witnesses in a broad 
range of technological, environmental, and other dis­
ciplines to appear at public hearings and describe 
the major defects that remained in the Alyeksa 
proposal.22

21 See Deposition of Deputy Under Secretary of the Interior 
Jack 0. Horton at 101-02, 111-12, 116 and Exhibits A-E there­
to (R. 217). See also documents collected at P. Docs. II, Tab 
B (R. 207).

22 A summary of Public Comments on the January State­
ment was submitted to the court below as Appendix C in Re­
spondents’ Appendices to Brief on National Environmental 
Policy Act Issues (R. 207).

Respondents were not alone in their criticism. Almost every 
federal agency with expertise in environmental matters com­
mented critically on Alyeska’s lack of readiness in a broad 
range of areas, A summary of Agency Comments on the 
January Statement was submitted to the court below as Ap­
pendix D in Respondents’ Appendices to Brief on National 
Environmental Policy Act Issues (R. 207). The following 
comments are illustrative:

Pipeline Engineering—“The draft environmental state­
ment is seriously weakened by the lack of technical de­
sign details. These details are unavailable from the 
permit applicant because he has not yet developed the 
final pipeline, monitoring systems and related designs. 
The weakness results in broad assurances that environ­
mental degradation will be kept to a minimum . . . .” (Let­
ter from EPA Administrator Ruckelshaus to Secretary 
Morton, March 12, 1971, p. 3, Tf 3) (FIS, Vol. 6, p. A-43; 
Ad. Rec. 2.14.6.3.1) (R. 239).

* * * *
Seismological Problems— “The statement discusses 

some of the potential problems related to seismic ac­
tivity but the references to the seismology problems are



14

It was only after these hearings that efforts were 
begun to evaluate realistically the full range of 
technological and environmental problems posed by 
the Trans-Alaska Pipeline and to devise ways to re-

incomplete. An appropriate evaluation would require a 
full report detailing the earthquake . . . risks . . . .  [I]t 
is recommended that detailed studies be made for the 
diverse earthquake problems related to the pipeline. 
This would involve the field of engineering seismology 
and the application of strong motion data . . . .  This 
is essential in view of the variance in surface geology 
which will support the pipeline structures.” (Comments 
of Office of Assistant Secretary of Commerce for En­
vironmental Affairs, April 16, 1971, pp. 10-11) (FIS, 
Vol. 6, p. A-78; Ad. Rec. 2.14.6.3.1) (R. 239).

ifc ^  ifi ifc

Detection of Terrestrial Oil Spills and Leaks—“The 
seismic and leak monitoring systems are to provide the 
basic alert mechanism to protect the environment against 
major crude oil releases. Yet, according to the draft 
statement these systems have not been designed. There­
fore, it is not possible to determine their efficiency and 
dependability.” (Letter from EPA Administrator Ruck- 
elshaus to Secretary Morton, March 12, 1971, p. 4, |f 5) 
(FIS, Vol. 6, p. A-44; Ad. Rec. 2.14.6.3.1) (R. 239).

* * * ❖
Monitoring Systems—“The monitoring of the system 

will be critical to its safe operation and to the avoidance 
of leaks and spills. Much additional data is required on 
precisely how the monitoring will function, before it will 
be possible to make a judgment on the safety and in­
tegrity of the system.” (Comments by the Department 
of Transportation, March 24, 1971, p. 1) (FIS, Vol. 6, 
p. A-55; Ad. Rec. 2.14.6.3.1) (R. 239).

 ̂ $
Marine Transport—“In particular, we feel that the 

transshipment of oil from the Port of Valdez to other



15

duce the substantial risks that remained both to the 
physical integrity of the pipeline and to the surround­
ing environment. Alyeska finally began compiling a 
comprehensive Project Description,23 and a completely 
new environmental impact statement drafting team 
was organized by the Interior Department.24

Following the submission of its Project Descrip­
tion to the Interior Department in July and August 
1971, Alyeska sought leave to enter the litigation as 
a party defendant. In papers filed in district court 
on August 20, 1971, Alyeska asserted that:

“ [I]t is Alyeska and its shareholders, and not 
the Plaintiffs or Defendant [i.e., the Secretary

coastal points in the continental United States to be as 
serious a concern and responsibility of the Federal 
Government in terms of probable adverse environmental 
impact as anything- occurring in the State of Alaska 
itself. The statement should carefully and accurately 
evaluate the risk of massive oil-spills, in international 
waters proximate to Canada, along the northwest coast 
of the United States, and in the Puget Sound area of 
Washington State, in considering whether to approve 
or disapprove the Alyeska proposal, and in deciding 
whether lesser risks may occur by recourse to other 
means of transporting oil from the Prudhoe Bay oil­
fields.” (Letter from Secretary of HEW to Secretary 
Morton, July 6, 1971, p. 4) (FIS, Vol. 6, p. A-103; Ad. 
Rec. 2.14.6.3.1) (R. 239).

23 Deposition of Dr. Frederick Sanger, Chairman of the 
Interior Department’s Technical Advisory Board, at 8 (R. 
221) .

24 Deposition of Dr. David A. Brew, Chairman of the In­
terior Department’s Environmental Impact Statement team, 
at 7, 88-89 (R. 220).



16

of the Interior] which have the ‘real economic 
stake in the outcome of this litigation’ . . . 2D

* *  X  *

“ [Alyeska’s] interests cannot be represented 
adequately by existing parties; the responsibili­
ties and duties of the Secretary of Interior, do 
not include or concern the proprietary and finan­
cial interests of Alyeska or the companies with 
whom Alyeska has contracted and for whom it 
is authorized to act as agent and attorney-in- 
fact in connection with the applications which 
are the subject of this action.” 26

Those interests were so strong, Alyeska asserted, 
that:

“Alyeska as a private party may well have a 
greater interest than the Secretary of the Inte­
rior in advancing arguments in support of the 
Secretary’s authority to issue the necessary 
rights-of-way and permits.” 27

Alyeska’s motion was granted on September 20, 
1971 (R. 84) without opposition from respondents 
(R. 79).25 Once in the litigation, Alyeska pursued 
its interests vigorously.29

25 Memorandum of Points and Authorities in Support of 
Alyeska Pipeline Service Company’s Motion to Intervene, pp. 
7-8 (R. 77).

26 Motion of Alyeska Pipeline Service Company To Inter­
vene as a Defendant, p. 4 (R. 77).

27 Memorandum, supra, note 25, at 11-12 (R. 77).
28 On September 10, 1971, the State of Alaska was also 

allowed to intervene as a party defendant (R. 83), again with­
out opposition from respondents (R. 81).

29 The 78 docket entries between the date of Alyeska’s in­
tervention (September 20, 1971) and the filing of respond-



17

On March 20, 1972, the Interior Department re­
leased to the public a six-volume Environmental Im­
pact Statement and a three-volume Economic and 
Security Analysis. Ad. Rec. 2.14 (R. 239). In re­
sponse to the Secretary’s announcement that he would 
withhold decision for 45 days to permit public com­
ment, respondents disseminated the impact statement 
to a large number of experts across the country and 
submitted their comments to the Secretary on May 
4, 1972.30

ents’ Motion for Partial Summary Judgment on May 12, 1972 
(R. 152) belie the assertion in Alyeska’s brief (P. Br. 5) 
that “proceedings in the district court . . . [were] essentially 
dormant” following its intervention. Alyeska participated 
extensively in a broad range of procedural matters during 
this period. See, e.g., Memorandum of Points and Authorities 
Submitted by Defendant Alyeska Pipeline Service Company in 
Support of Defendant’s Motion To Have the Action Main­
tained as a Class Action, November 23, 1971 (R. 106); Mem­
orandum of Alyeska Pipeline Service Company in Opposition 
to the Motion by David Anderson and the Canadian Wildlife 
Federation To Intervene, November 30, 1971 (R. I l l ) ; Memo­
randum of Alyeska Pipeline Service Company in Opposition 
to Respondents’ Motion To Clarify the Preliminary Injunc­
tion, December 1, 1971 (R. 114); Response of Alyeska Pipe­
line Service Company to Motion for Protective Order, De­
cember 13, 1971 (R. 127); Memorandum of Alyeska Pipeline 
Service Company in Opposition to Respondents’ Motion To 
Compel Production of Documents, February 18, 1972 (R. 
140).

30 The comments submitted by respondents were organized 
in four volumes relating to Technical Comments (I), Ter­
restrial Impact (II), Marine Impact (III), and Economics, 
National Security and Systematic Evaluation and Balancing 
of Alternatives (IV). See Ad. Rec. 4.3.2.1 (R. 239).



18

On May 11, 1972, the Secretary announced through 
a News Release that Alyeska would be granted the 
permits it requested for the Trans-Alaska Pipeline.31 
The Secretary indicated that a dual permit device 
would be utilized to accommodate Alyeska’s land 
needs. That is, permits designated “right of way” 
permits would be issued for the first fifty feet re­
quired by Alyeska and permits designated “special 
land use permits” would be issued for whatever ad­
ditional contiguous lands Alyeska might need.

On May 12, 1972, respondents filed a Motion for 
Partial Summary Judgment on the Mineral Leasing 
Act issues in the case (R. 152). In their accompany­
ing brief, respondents contended that Congress en­
acted the Mineral Leasing Act as a conservation 
measure; that its width limitation was designed to 
assure that if more land was needed for larger pipe­
lines Congress would have the opportunity to con­
sider whether and under what conditions such land 
might be used; and that the contemplated dual per­
mit device violated both the Mineral Leasing Act 
and the Interior Department’s own regulations. Re­
spondents contended further that the Mineral Leas­
ing Act presented a threshold legal issue, the adjudi­
cation of which could be dispositive of the case.32

31 The release is contained at Tab A of Respondents’ Ap­
pendices to Brief on the Mineral Leasing Act Issues (R. 152).

32 See, e.g., Respondents’ Motion for Partial Summary 
Judgment, May 12, 1972, at 1 (R. 152) (Jt. App. 139):

“The grounds for [respondents’] motion are that the 
Mineral Leasing Act issues present threshold questions 
resting on operative facts that are different from and 
independent of the operative facts of [respondents’] 
claims under the National Environmental Policy Act



19

Respondents suggested, therefore, that the Mineral 
Leasing Act issues be decided without further delay.83

Alyeska vigorously opposed respondents’ Motion. 
Alyeska argued in part that a full presentation of 
the Natural Environmental Policy Act (“NEPA”) 
issues in the case was necessary to provide a factual 
predicate for an informed judgment on the Mineral

(“NEPA”); the NEPA issues need be adjudicated only 
if the permits contemplated by the Secretary are not pro­
hibited by the Mineral Leasing- Act; and if said permits 
are prohibited by the Mineral Leasing Act; it would be 
a waste of judicial time and effort for [the] court to 
adjudicate the far more complicated NEPA issues which 
would, in that event, be reduced to hypothetical ques­
tions.”

33 Respondents’ Response to Defendant’s Motion To Defer 
Consideration of Respondents’ Motion for Partial Summary 
Judgment Under the Mineral Leasing Act, May 19, 1973, at 2 
(R. 162) (Jt. App. 160-61):

“The oil companies have had three full years to figure 
out why the Mineral Leasing Act does not mean 50 
feet when it says 50 feet. Surely, they—and the Secre­
tary—should now be required to provide their expla­
nations . . . .

“ [Respondents] suggest, therefore, that defendants be 
required to file responsive briefs to [respondents’] Mo­
tion for Pretrial Summary Judgment within ten (10) 
days (they have already had the motion for seven days); 
followed by an expeditious consideration by the Court 
of the merits of [respondents’] motion. If the Court 
concludes that [respondents’] contentions are clearly 
correct—as it preliminarily concluded in April, 1970— 
if can then afford defendants the opportunity of an ex­
pedited appeal (which defendants could make either to 
the Court of Appeals or as may be far more appropriate, 
and likely, to Congress).”



20

Leasing Act issues. Alyeska argued further that such 
a presentation would lead to the rejection of re­
spondents’ Mineral Leasing Act arguments:

“Both the permit issues and those relating 
to the National Environmental Policy Act 
(NEPA), 42 U.S.C. § 4331 et seq., are insepa­
rably associated with the technical details of how 
the trans-Alaska pipeline system will be built. 
Alyeska is confident that when the [respond­
ents’] contentions are examined by this Court 
with a full factual understanding of the project, 
the scope of the Secretary’s power to issue the 
requested permits and the past policies and prac­
tice of the Department of the Interior, the Court 
will reject those contentions.” 34

Alyeska prevailed in its position (R. 164). Respond­
ents’ motion was held in abeyance while discovery 
on the NEPA issues (which had theretofore been 
deferred at the request of Alyeska and the other de­
fendants) was completed on an expedited basis.35

34 Memorandum of Alyeska, Pipeline Service Company in 
Support of Defendant’s Motion To Place Respondents’ Motion 
for Partial Summary Judgment in Abeyance, May 17, 1972, 
at 7-8 (R. 154) (Jt. App. 147-48).

35 Depositions were taken on May 18, 1972 (R. 217), May 
24, 1972 (R. 220), May 31, 1972 (R. 221), June 6, 1972 (R. 
222), June 8, 1972 (R. 223), June 16, 1972 (R. 224), and 
June 24, 1972 (R. 225). In addition, on May 26, 1972, 
Alyeska served on respondents extensive interrogatories de­
signed to explore the adequacy of respondents’ standing 
under Sierra Club V. Morton, 405 U.S. 727 (1972) (R. 165). 
The response to these interrogatories, which required informa­
tion from respondents’ officers and members across the coun­
try, was filed by respondents on June 26, 1972 (R. 194, R. 
195).



21

The exposition of the NEPA issues in the case re­
quired an elaborate development of the technical de­
tails of the Trans-Alaska pipeline. Respondents dealt 
extensively with those details in their NEPA brief.36 
So did Alyeska, which filed extensive briefs which, 
when printed, filled over 300 pages (more than the 
combined totals of the other defendants) (R. 205, 
R. 230). The result was a record and set of briefs 
that set forth the entire fact picture that Alyeska 
had contended was necessary for a fully informed 
decision in the case.

On August 14 and 15, 1972, the district court 
heard argument in the case. Alyeska was allocated

36 See Respondents’ Brief on National Environmental 
Policy Act Issues, at 3-12, 54-59, 72-80 (R. 206). (Page ref­
erences are to the printed version of the brief, filed on Septem­
ber 13, 1972, in the court of appeals.)

The principal NEPA issues raised by respondents were: 
First, that by focusing on Alyeska’s proposal for North Slope 
oil, and effectively excluding from consideration a second 
(gas) pipeline which the Interior Department acknowledged 
would be constructed across Canada in any event, the impact 
statement did not set forth the full implications of the 
Alyeska proposal or analyze the realistic alternatives to it. 
These alternatives were (1) an oil and gas pipeline across 
Alaska plus marine transport of oil through Prince William 
Sound and down the Northeast Pacific plus a completely sep­
arate pipeline route for North Slope natural gas across 
Canada or (2) a single overland corridor across Canada 
which could accommodate both the oil and gas pipelines. Id. 
at 39-64. See Appendix A, infra. Second, that in view of the 
substantial number of indeterminacies acknowledged in the 
impact statement, the statement should also have indicated 
the steps, if any, being taken to close those gaps and discuss 
the risk of proceeding in the face of so many indeterminacies. 
Id. at 65-86. See Appendix B, infra.



22

the major portion of defendants’ time on both the 
Mineral Leasing Act and NEPA issues. On August 
15, 1972, the district court ruled from the bench in 
defendants’ favor. The court declined, however, to 
set forth reasons for its decision on the grounds 
that it would take “weeks and months to complete” 
an “exhaustive, legal opinion” and that “the appellate 
process [should] be initiated as soon as possible.” 37

4. The Court of Appeals’ Decision on the Merits

An expedited appeal to the court of appeals en­
sued. Oral argument was held on October 6, 1972, 
with Alyeska again allocated the main portion of 
defendants’ argument. Since no opinion had been 
issued below, it was necessary for the court of ap­
peals to conduct its own five-month review of the 
voluminous record. On February 9, 1973, the court 
rendered its exhaustive opinion in Wilderness Society 
I.

The focus of the court’s opinion was on the 
Mineral Leasing Act. The court concluded that, on 
its face, Section 28 of the Mineral Leasing Act pre­
cluded issuance of the right-of-way permits requested

37 See Wilderness Society v. Morton, 4 ERG 1467 (D.D.C. 
1972).

At the conclusion of the two-day oral argument, the district 
court remarked:

“I have never seen a case more thoroughly or better 
briefed on all sides. I can hardly imagine that anyone 
of you could brief it more extensively or better.” Tran­
script, Hearings before District Court, August 15, 1972, 
at 360.



23

by Alyeska. Wilderness Society 1, 479 F.d at 855.38 
The opinion demonstrated further that the width 
limitation contained in Section 28 was a device con­
sciously chosen by Congress to “maintain control over 
pipeline rights-of-way and to force the industry to 
come back to Congress if the amount of land granted 
was insufficient for its purposes.” Id. at 892. (Em­
phasis added).

As explained in the opinion, the Mineral Leasing 
Act was the product of a debate on public land use

38 The full text of Section 28 of the Mineral Leasing Act 
is set forth at P. Br., App. A. The section provided in per­
tinent part that:

“Rights of way through the public lands . . . may be 
granted by the Secretary of the Interior for pipe-line 
purposes for the transportation of oil or natural gas . . . 
to the extent of the ground occupied by the said pipe line 
and twenty-five feet on each side of the same under such 
regulations and conditions as to survey, location, applica­
tion, and use as may be prescribed by the Secretary of 
the Interior . . . .” (Emphasis added).

The section also provided:
“That no right-of-way shall hereafter be granted over 
said lands for the transportation of oil or natural gas 
except under and subject to the provisions, limitations 
and conditions of this section.” (Emphasis added).

And the section contained a specific forfeiture provision in 
the event of any “failure to comply with the provisions of 
this section” :

“Failure to comply with the provisions of this section 
or the regulations and conditions prescribed by the 
Secretary of the Interior shall be ground for forfeiture 
of the grant by the United States district court for the 
district in which the property, or some part thereof, is 
located in an appropriate proceeding.” (Emphasis added).



24

extending over several Congresses. It was triggered 
by Congress’ concern that “in the past, when grant­
ing rights-of-way to railroads, it had been much too 
generous in giving away valuable public lands, and 
it did not want this to be repeated.” Wilderness 
Society /, 479 F.2d at 863. Over the years preceding 
the Act’s passage, Congress considered various width 
limitations for oil and gas pipelines. Id. at 856. Con­
gress was warned by oil and gas pipeline proponents 
that a fifty-foot width limitation would not accom­
modate future pipeline developments. Id. at 859. 
Nonetheless, Congress selected that width limitation 
because it was sufficient for pipeline construction 
methods with which it was familiar. Id. at 863 n. 47. 
If interested oil companies needed more land, Con­
gress intended for them to “come back and try to get 
a more liberal law.” Ibid.

In light of the above, the court concluded that:

“Article 4, § 3, Cl. 2 of the Constitution provides 
that ‘The Congress shall have Power to dispose 
of and make all needful Rules and Regulations 
respecting the Territory [or] other Property be­
longing to the United States.’ The power over 
the public land thus entrusted to Congress is 
without limitations.” Id. at 891.

*  *  *  *

“These companies have now come into court, ac­
companied by the executive agency authorized 
to administer the statute, and have said, ‘This 
is not enough land; give us more.’ We have no 
more power to grant their request, of course, 
than we have the power to increase eongres-



25

sional appropriations to needy recipients.” Ibid.
(Emphasis added).39

With regard to the National Environmental Policy 
Act issues in the case, the court concluded that the 
parties had presented “complex and important ques­
tions.” Id. at 889. Those questions, the court was 
later to say, were interrelated with the Mineral 
Leasing Act issues and had served as a predicate for 
a “precise analysis” of those issues. Wilderness So­
ciety II, 495 F.2d at 1035. But the necessity for prior 
Congressional action could moot, or developments 
pending Congressional action could alter, the factors 
bearing on a final resolution of the NEPA issues. 
Wilderness Society I, 479 F.2d at 889. Thus, although 
three dissenting judges would have reached the NEPA 
issues, the court declined to adjudicate them on tra-

39 It should be noted that in Wilderness Society I  the court 
of appeals squarely rejected Alyeska’s assertions that its 
decision to seek authorization from the Secretary rather than 
the Congress was supported by Interior Department “special 
land use permit” regulations and certain opinions of the 
Attorney General (P. Br. at 16 n. 11). The court there held 
that on their face the Department’s “special land use per­
mit” regulations and the Attorney General’s opinions cited by 
petitioner precluded the type of permit Alyeska requested. Id. 
at 870-75.

The court also pointedly noted the irony that Alyeska “ap­
parently did not know” about the so-called “administrative 
practice of over fifty years” (P. Br. at 30 n. 25) at the time 
Alyeska filed its application with the Secretary. 479 F.2d at 
867. Indeed, a subsequent three-year search by Alyeska and 
Interior Department counsel into the files of Interior Depart­
ment field offices in quest of such a practice produced no more 
than a handful of documented instances to which the court of 
appeals properly gave little weight in Wilderness Society I, 
479 F.2d at 868.



26

ditional ripeness grounds, id. at 889-90, citing Poe 
v. Ullman, 367 U.S. 497 (1961) and 367 U.S. at 
528 (Mr. Justice Harlan, dissenting).

Petitions for certiorari were filed on March 9, 
1973, and respondents’ opposition was filed on March 
28. Five days later, on April 2, 1973, this Court 
denied certiorari, without dissent. 411 U.S. 917 
(1973).

5. Public Law No. 93-153, 87 Stat. 57640
With its jurisdiction over the public lands pre­

served, Congress embarked upon several months of 
intensive deliberations—filling thousands of pages of 
hearings41 and reports.42

40 30 U.S.C.A. §185 (Supp. 1974); 43 U.S.C.A. §1651 
et seq. (Supp. 1974).

41 See, e.g., Hearings on S. 1040, S. 104-1, S. 1056, S. 1081 
Before the Senate Comm, on Interior and Insular Affairs, 
93d Cong., 1st Sess., pt. 1 (1973); Hearings on S. 1040, S. 
1041, S. 1056, S. 1081 Before the Senate Comm, on Interior 
and Insular Affairs, 93d Cong., 1st Sess., pt. 2 (1973); Hear­
ings on S. 970, S. 993, S. 1565 Before the Senate Comm, on 
Interior and Insular Affairs, 93d Cong., 1st Sess., pt. 3 (1973); 
Hearings on S. 970, S. 993, S. 1565 Before the Senate Comm, 
on Interior and Insular Affairs, 93d Cong., 1st Sess., pt. 4 
(1973); Hearings on H.R. 9130 Before the Subcomm. on 
Public Lands of the House Comm, on Interior and Insular 
Affairs, 93rd Cong., 1st Sess., Ser. No. 93-12, pt. 1 (1973); 
Hearings on H.R. 9130 Before the Subcomm. on Public Lands 
of the House Comm, on Interior and Insular Affairs, 93d 
Cong., 1st Sess., Ser. No. 93-12, pt. 2 (1973); and Hearings 
on H.R. 9130 Before the Subcomm. on Public Lands of the 
House Comm, on Interior and Insular Affairs, 93d Cong., 1st 
Sess., Ser. No. 93-12, pt. 3 (1973).

42 See, e.g., S. Rep. No. 93-207, 93d Cong., 1st Sess. (1973); 
H.R. Rep. No. 93-414, 93d Cong., 1st Sess. (1973); H.R. Rep.



27

That process convinced Congress that (1) it should 
enact a completely new legislative charter for pipe­
lines crossing the public lands, incorporating string­
ent technological, environmental, and land use safe­
guards, and (2) that the construction of the Trans- 
Alaska Pipeline should proceed, subject to extensive 
safeguards set forth in the Act, without further 
litigation under the National Environmental Policy 
Act.43

With regard to Congress’ decision to authorize the 
construction of the Trans-Alaska Pipeline, a proposal 
to declare that the actions already taken by the Sec­
retary constituted compliance with NEPA wras re­
jected.44 But by a 49-49 vote in the Senate, requir­
ing then Vice President Agnew to break the tie, and 
a 221-198 vote in the House, Congress nonetheless 
decided to permit construction of the pipeline without 
any further litigation under NEPA.45

The extensive hearings and debate had convinced 
Congress that during the forced delay of pipeline 
construction:

No 93-420, 93d Cong., 1st Sess. (1973); H.R. Rep. No. 93- 
617, 93d Cong., 1st Sess. (1973); H.R. Rep. No. 93-624, 93d 
Cong., 1st Sess. (1973).

43 The text of Pub. L. No. 93-153 is set forth at Appendix C 
to this brief. The provisions of the Act are summarized at 
pp. 51-54 infra.

44 H.R. Rep. No. 93-617, 93d Cong., 1st Sess. 27 (1973). 
Alyeska’s assertion that Congress made “a legislative finding 
that the Department’s efforts were fully adequate” (P. Br. 
35) is in error.

45119 Cong., Rec. S. 13,689-90 (daily ed. July 17, 1973); 
119 Cong. Rec. H. 7281-82 (daily ed. Aug. 2, 1973).



28

“ [T]he risk of environmental damage . . . has 
been substantially lessened as a result of the 
stricter environmental stipulations, redundant 
safety systems, contingency planning and better 
engineering imposed upon the proposed Trans- 
Alaska pipeline.” 4,6

In language that mirrored Wilderness Society I, Con­
gress determined that:

“It is fitting and proper for Congress to make 
this decision. The issue is one of national im­
portance. The issue involves the use of the pub­
lic lands, the control of which the Constitution 
expressly reserves to Congress. It is the respon­
sibility of Congress to decide whether the pipe­
line should be authorized.” 47

“  S. Rep. No. 93-207, 93d Cong-., 1st Sess. 18 (1973).
These benefits were acknowledged by some of the pipe­

line’s most ardent supporters. See, e.g., Statement of Senator 
Gravel, Hearings on S. 970, S. 993 and S. 1565 Before the 
Senate Comm, on Interior and Insular Affairs, 93d Cong., 
1st Sess., pt. 4, at 56 (1973) (“While the four-year delay 
in construction of the Alaska Pipeline has been costly to the 
United States in balance of payments and a worsening energy 
shortage, it has—and I think most of us agree, including the 
oil industry—served a very useful purpose. A safer line will 
be constructed today than could have been constructed four 
years ago.” ); Statement of then Under Secretary of the 
Treasury William E. Simon, Hearings on S. 970, S. 993 and
S. 1565 Before the Senate Comm, on Interior and Insular 
Affairs, 93d Cong., 1st Sess., pt. 4, at 127 (1973) (“past 
delays and resultant research have greatly reduced the magni­
tude of [the] risks”) .

47 H.R. Rep. No. 93-414, 93d Cong., 1st Sess. 14 (1973).



29

6. The Court of Appeals’ Decision Awarding Attorneys’ Fees

The court of appeals’ decision in Wilderness Society 
II is discussed at length in the Argument Section 
of this brief.46 In summary, the court concluded that 
in view of the extraordinary factual circumstances 
of this case respondents and their counsel should not 
be required to bear the entire cost of the litigation. 
The equitable factors relied on by the court in reach­
ing this determination related to the importance of 
the congressional policies effectuated, the benefits 
conferred on others by the litigation, the massive legal 
efforts required, and the burden that that effort placed 
on respondents and their counsel. Wilderness So­
ciety II, 495 F.2d at 1030-36.

Having concluded that respondents and their coun­
sel should not be required to bear the entire cost 
of the litigation, the court determined that the 
“equities of this particular case” justified a partial 
shifting of respondents’ fees to Alyeska. The court 
explained that the Trans-Alaska Pipeline is Alyeska’s 
project; the litigation stemmed from actions and de­
cisions taken by Alyeska and for which Alyeska 
alone was responsible; Alyeska participated in the 
litigation as a “major and real party in interest” ; 
and an award of fees against Alyeska could not de­
ter it from pursuing its interests in court. Id. at 
1030-38.

In this connection, the court made no provision 
for the efforts of respondents’ counsel prior to 
Alyeska’s entry into the case in September 1971.

48 The Bill of Costs on which the court acted is reproduced 
at Jt. App. 209-221.



30

Nor did the court authorize any shifting of fees for 
any legal effort undertaken after that date that was 
not related to the preparation and presentation of the 
briefs and oral argument that served as the basis 
for the court of appeals’ decision on the merits. Even 
with regard to the latter, the court limited the award 
against Alyeska to “half of the total fees,” 49 the 
“amount . . . [to] be fixed in the first instance by the 
District Court, after hearing evidence if necessary 
as to the extent and nature of the services rendered.” 
Id. at 1036.

SUMMARY OF ARGUMENT

The power to award attorneys’ fees in the absence 
of specific statutory authorization is not confined 
within rigid categories. It is a flexible, equitable 
power whose exercise depends upon the particular

49 The court explained:
“Under 28 U.S.C. § 2412 . . .  no attorneys’ fees can be 
imposed against the United States . . . .sj; ijs :Js
“Since Alyeska unquestionably was a major and real 
party at interest in this case, actively participating in 
the litigation along with the Government, we think it 
fair that it should bear part of the attorneys’ fees . . . .  
In recognition of the Government’s role in the case, on 
the other hand, Alyeska should have to bear only half 
of the total fees. The other half is properly allocated 
to the Government and, because of the statutory bar, 
must be assumed by appellants [i.e., respondents]. In 
this manner the equitable principle that appellees [i.e., 
Alyeska] bear their fair share of this litigation’s full cost 
and the congressional policy that the United States not 
be taxable for fees can be accommodated.” 495 F.2d at 
1036. (Emphasis added). (Footnote omitted).



31

facts of particular cases. The fee award here rests 
upon a determination that (1) overriding equitable 
factors support a shifting of fees from respondents 
and (2) it is fair and equitable to shift a portion of 
those fees to Alyeska. That determination was made 
by a court of appeals uniquely immersed in the facts 
of the case. (Point I).

The court identified four factors which in its judg­
ment supported a shifting of fees from respondents. 
Respondents’ litigation vindicated important Congres­
sional policies; it conferred substantial benefits on 
others; massive private litigation was necessary to 
achieve those ends; and the litigation, undertaken 
for no economic gain, placed heavy burdens on re­
spondents and their counsel. Each of the factors cited 
by the court finds ample support in the record. (Point 
II A). Moreover, each of the factors was an ap­
propriate one for the court to consider in deciding 
whether to authorize a shifting of fees from respond­
ents. (Point II B). Taken together, they demonstrate 
that the decision to shift fees from respondents rests 
upon unusually compelling considerations.

The Mineral Leasing Act was a landmark con­
servation measure designed to correct past abuses 
in public land management. Its width limitation was 
a protective device consciously designed by Congress 
to preserve for itself the opportunity to safeguard 
the public lands. NEPA embodies important and 
comprehensive policies designed to ensure that fed­
eral actions which might have significant environ­
mental consequences, including private projects re­
quiring government approval, not be undertaken until 
their adverse consequences have been analyzed and



32

ways to minimize them considered. The litigation 
below vindicated the purposes of both these Acts 
precisely as Congress intended. The litigation re­
quired government and industry to consider carefully 
the risks associated with the construction of the 
Trans-Alaska Pipeline and it required them to seek 
Congressional approval before diverting the irreplace­
able public lands of Alaska to pipeline use. (Point II 
A 1).

The litigation had other concrete and substantial 
benefits. First, the preliminary injunction obtained 
in April 1970 by respondents, when neither industry 
nor government was prepared to deal with the com­
plex problems of an Arctic pipeline, prevented a 
possible environmental and engineering disaster. Sec­
ond, as government and industry spokesmen have 
acknowledged, the litigation served as a catalyst for 
their joint efforts to reduce the project’s risks. Third, 
and most important, the litigation led to major legis­
lation which set forth a completely new charter for 
pipelines crossing public lands and imposed detailed 
environmental, technological, and other safeguards on 
the Trans-Alaska Pipeline, In its brief, Alyeska 
labors to create the impression that following the 
court’s decision in Wilderness Society I, Congress 
merely rubber-stamped the construction of the Trans- 
Alaska Pipeline. This contention is totally belied by 
Pub. L. No. 93-153, which is reproduced at Appendix 
C to this brief and summarized at pp. 51-54, infra. 
(Point II A 2).

The Congressional policies effectuated and the bene­
fits conferred were the result of a massive private 
litigation effort undertaken by respondents with no 
prospect of receiving monetary damages. There was



33

a substantial disparity in the resources available to 
the respective parties in the litigation and the effort 
required of respondents placed a heavy burden on 
them and their counsel. (Point II A 3, 4).

The appropriateness of these considerations as fac­
tors to be weighed in deciding whether to shift fees 
from respondents is amply demonstrated by this 
Court’s attorneys’ fee decisions, this Court’s decisions 
concerning judicial effectuation of Congressional poli­
cies and access to the courts, Congressional legisla­
tion on attorneys’ fees, and by the attorneys’ fees 
decisions of the lower federal courts. (Point II B).

The court of appeals’ determination that it was 
fair and equitable in the circumstances of this case 
to shift a portion of respondents’ fees to Alyeska was 
also correct. Alyeska argues that it had no legal 
obligation under the Mineral Leasing Act or NEPA, 
and that therefore the court was without power to 
award fees against it. As a technical matter the 
Mineral Leasing Act did impose an enforceable legal 
obligation on Alyeska. But more to the point, this 
Court’s decisions establish that the power to shift 
fees does not depend upon the formality of a party’s 
technical obligation. It rests on the inherent judicial 
power to do equity in a particular situation. (Point 
III).

The court’s power to shift fees to Alyeska was 
properly exercised in the circumstances of this case. 
Alyeska is no mere bystander unfairly selected out 
to pay attorneys’ fees. The Trans-Alaska Pipeline 
is Alyeska’s project—conceived and proposed by 
Alyeska’s principals to promote their private economic 
interests. The litigation itself resulted from actions



34

and decisions for which Alyeska’s principals were 
directly responsible. It was Alyeska’s principals who 
decided to address their application to the Secretary 
of the Interior rather than to Congress. They were 
free at any time to change their decision and address 
their request to the Congress, but they declined to 
do so even after receiving a clear signal from the 
preliminary injunction. It was also Alyeska’s prin­
cipals who sought approval of the pipeline without 
adequately considering major technological and en­
vironmental problems posed by the project. As the 
moving party behind an inadequately planned project 
contemplating an unauthorized use of public lands, 
Alyeska was the direct cause of this litigation and the 
real party in interest. (Point III A).

To protect the enormous economic interests of its 
principals, Alyeska played a major and active role 
in the litigation. Alyeska conducted extensive dis­
covery, filed massive briefs, and took the major por­
tion of defendants’ oral argument in both the district 
court and the court of appeals. (Point III B). Fur­
thermore, although Alyeska vigorously opposed re­
spondents, Alyeska received concrete benefits from the 
litigation—primarily from the correction of basic 
technological deficiencies in the proposed pipeline that 
threatened its physical integrity. Alyeska’s principals 
are also in a position to distribute the fee award 
among members of the public who are the ultimate 
beneficiaries of an improved pipeline, an improved 
environment, and a proper functioning of our govern­
mental system. (Point III C). And the award does 
not otherwise work any hardship or unfairness on 
Alyeska. (Point III D-F).



35

Finally, Alyeska raises several miscellaneous con­
tentions concerning the judicial manageability of fee 
awards and the appropriateness of awarding fees to 
attorneys who receive salaries from non-profit or­
ganizations. These contentions are refuted by the 
facts of this case and by judicial precedent. (Point 
IV).

ARGUMENT

I. THE EQUITABLE POWER TO AWARD FEES IS 
NOT CONFINED TO RIGID SETS OF CASES.

The decision below rests on the premise that the 
“Supreme Court has . . . indicated . . . that the equit­
able power of federal courts to award attorneys’ fees 
. . .  is not a narrow power confined to rigid sets of 
cases.” Wilderness Society II, 495 F.2d at 1029. This 
Court’s decisions clearly support that premise.

Over the years, the Court has approved non-puni- 
tive equitable awards of attorneys’ fees in a variety 
of factual contexts which, taken together, have come 
to be known as the “common benefits” exception to the 
American rule.50 Behind the label “common benefits” 
is a diverse group of cases in which particular facts

30 As formulated by the Court in F. D. Rich Co. V. United 
States, 417 U.S. 116 (1974), this exception to the American 
rule applies “where a successful litigant has conferred a sub­
stantial benefit on a class of persons and the court’s shift­
ing of fees operates to spread the cost proportionately among 
the members of the benefited class.” Id. at 129-80.

The Court has, in addition, “long recognized that at­
torneys’ fees may be awarded to a successful party when his 
opponent has acted in bad faith, vexatiously, wantonly or for 
oppressive reasons.” Id. at 129 and the cases collected at 129 
n.17.



36

were found sufficient to support an equitable fee 
award. Indeed, what is now called the “common bene­
fits” exception has itself developed from a simpler 
“common fund” doctrine to accommodate new equit­
able considerations.

The genesis of the exception was the recognition 
that it is basically unfair to require a litigant to 
bear the expense of a litigation from which others 
profit, This principle was recognized initially in a 
very narrow group of cases in which a “common 
fund” was protected, created, or recovered as a re­
sult of the litigation. E.g., Central R.R. & Banking 
Co. v. Pettus, 113 U.S. 106 (1885); Trustees v. 
Greenough, 105 U.S. 527 (1882). It was then recog­
nized that the same considerations of fairness should 
be applied to a case which did not actually result in 
a fund, but produced a similar effect by establishing 
a precedent for others. Sprague v. Ticonic National 
Bank, 307 U.S. 161, 166 (1939). Recently, the Court 
has held that the benefits conferred upon others need 
not be pecuniary for the same considerations of 
fairness to apply. Hall v. Cole, 412 U.S. 1 (1973); 
Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970). 
In Hall and Mills the Court has also recognized that 
other equitable factors, not present in the common 
fund cases, may lend additional support for the shift­
ing of fees. See p. 60 infra.

The ability to shift fees in a specific case depends, 
of course, on more than fairness to the plaintiff. 
There must exist, or there must be fashioned, an 
equitable fee shifting mechanism that is not unfair 
to others. Here, too, however, the Court has shown 
flexibility in approving mechanisms, which, even if



37

imperfect, reflect the specific circumstances of the
case before it, In Sprague, supra, for example, no 
fund was actually established by the litigation. The 
Court recognized that any cost-spreading mechanism 
that might be devised would be imperfect since both 
secured and unsecured creditors would have to pay 
for it, even though only the former had benefited 
from the lawsuit. But the Court considered this as 
simply one factor to be considered “in the ultimate 
judgment. . .  as to the fairness of making an award.” 
307 U.S. at 167.51

This Court’s descriptions of the types of cases that 
might present sufficient equities to warrant the award­
ing of fees appear to have been carefully drafted so 
as to dispel any inference that the power to award 
fees for non-punitive reasons was somehow frozen 
within the mold of already decided common benefit 
cases.52 In Sprague, the Court asserted that fee shift-

51 Following the remand, a fee was, in fact, awarded at the 
partial expense of non-benefitting general creditors by the 
district court. On appeal, the court of appeals upheld the 
equity of that award:

“But if it was equitable to make the plaintiff whole for 
her expenses in establishing the lien, the District Court 
was warranted in concluding that the trivial disadvantage 
to the unsecured creditors was not a significant counter­
vailing consideration.” Sprague V. Ticonic Nat’l Bank, 
110 F.2d 174, 177 (1st Cir. 1940).

52 To have done otherwise would have been a startling 
departure from the manner in which equitable jurisdiction 
traditionally functions. As the Court recognized in Sprague:

“As in much else that pertains to equitable jurisdiction, 
individualization in the exercise of a discretionary power



38

ing is appropriate “in exceptional cases and for domi­
nating reasons of justice.” 307 U.S. at 167. In Mills, 
supra, the Court indicated that “both the courts and 
Congress have developed exceptions to this rule for 
situations in which overriding considerations indi­
cate the need for such a recovery.” 396 U.S. at 391- 
92. And in Hall, supra, the Court stated that “fed­
eral courts . . . may award attorneys’ fees when the 
interests of justice so require” and that “federal 
courts do not hesitate to exercise this inherent equit­
able power whenever ‘overriding considerations in­
dicate the need for such a recovery’.” 412 U.S. at 
4-5.

Indeed, at the very time that the Court was en­
deavoring to control encroachments on the American 
rule in the context of everyday commercial litigation, 
it did not thereby freeze all future permissible ex­
ceptions to the rule into the precise mold of already- 
decided cases. While expressly reserving judgment 
“on the validity of the scope of that doctrine,” the 
Court took note that “the lower courts have . . . 
applied a [private attorney general] rationale for fee 
shifting based on the premise that the expense of 
litigation may often be a formidable if not insur-

will alone retain equity as a living- system and save it 
from sterility.” 307 U.S. at 167.

Compare, Union P. Ry. v. Chicago R.I. & P. Ry., 163 U.S. 
564, 601 (1896):

“As has been well said, equity . . . ‘has always pre­
served the elements of flexibility and expansiveness, so 
that new [remedies] may be invented, or old ones modi­
fied, in order to meet the requirements of every 
case’ . . . .”



39

mountable obstacle to the private litigation necessary 
to enforce important public policies.” F. D. Rich, 
supra, 417 U.S. at 130.58

Thus, the approach taken by the court below in 
looking to the “equities of this particular case” and 
not to some inflexible formula was fully consistent 
with this Court’s decisions. The appropriateness of 
the court’s award should be decided not on the basis 
of abstract predetermined formulas as Alyeska sug­
gests but on traditional grounds of (1) whether the 
overriding equitable factors identified by the court 
support a shifting of fees from respondents in this 
case, and, if so, (2) whether it is fair and equitable 
in the circumstances of this case to shift those fees 
to Alyeska.

II. THE EQUITABLE FACTORS IDENTIFIED BY THE 
COURT SUPPORT A SHIFTING OF FEES FROM 
RESPONDENTS IN THIS CASE.

The court of appeals identified four equitable fac­
tors that in its judgment were sufficiently strong in 
“this particular case [to] support an award of at­
torneys’ fees to the successful [respondents].” Wil­
derness Society II, 495 F.2d at 1086.

The equitable factors relied on were that the litiga­
tion had vindicated important Congressional policies; 
that it had conferred substantial benefits on others 
besides respondents; that massive litigation by re­
spondents as private citizens was necessary to achieve 
those ends; and that the litigation, undertaken for

53 The lower court cases cited in F. D. Rich, 417 U.S. at 130 
n.19, and other “private attorney general” cases are collected 
at note 91, infra,



40

no economic gain, placed heavy burdens on respond­
ents and their counsel. Each of the factors cited by 
the court finds ample support in the record. More­
over, each of the factors was an appropriate one for 
the court to consider in deciding whether to authorize 
a shifting of fees from respondents in this case. 
Taken together, they demonstrate that the decision 
to shift fees from respondents rests upon unusually 
compelling considerations.

A. The Factors Identified by the Court Are Amply 
Supported by the Record

1. The Statutory Interests Involved Were Important

The court’s conclusion that ‘Vital statutory in­
terests” were at stake in the litigation below is 
clearly correct. See Wilderness Society II, 495 F.2d 
at 1032.

As previously discussed, the Mineral' Leasing Act 
was a landmark conservation measure designed to 
correct past abuses in public land management. When 
it enacted the law, Congress intended to reassert 
its own control over the use and disposition of the 
public lands. Wilderness Society /, 479 F.2d at 859- 
860, 864. The debates cited at length in the court 
of appeals’ opinion demonstrate that “Congress 
seemed to be aware that the width limitation [im­
posed on pipeline rights-of-way] might . . . in the 
future prove to be . . . insufficient,” but “Congress 
intended to maintain control over pipeline rights-of- 
way and to force the industry to come back to Con­
gress if the amount of land granted was insufficient 
for its purposes.” (Emphasis added). Id. at 860, 
892. Under the scheme of the Act, Congress would



41

then have the opportunity to decide whether more 
public land should be granted and, if so, whether 
specific conditions and safeguards should be attached 
to its use.

Even if Congress had never enacted the National 
Environmental Policy Act of 1969, the case below 
would have been no “ordinary, run-of-the-mill litiga­
tion.” See Sierra Club v. Morton, 405 U.S. 727, 755 
(1972) (Mr. Justice Blackmun, dissenting). On a 
general level, as Justice Blackmun recently stated 
in an analogous context, “the propriety of the ‘dual 
permit’ device as a means of avoiding . . .  [a] limi­
tation imposed by Congress” presented an issue that 
“raise[d] important ramifications for the quality of 
the country’s public land management.” 54 More spe­
cifically, Alyeska’s Trans-Alaska Pipeline proposal 
raised “significant aspects of a wide, growing, and 
disturbing problem, that is, the Nation’s and the 
world’s deteriorating environment with its resulting 
ecological disturbances.” Id. at 755. The public lands

54 Sierra, Club V. Morton, 405 U.S. 727, 757 (1972) (dis­
senting- opinion). Significantly, the Congressional limitation 
contained in the Mineral Leasing Act was even stronger than 
that in issue! in Sierra Club. As the court below noted:

“We need not voice our views with respect to the Ninth 
Circuit’s opinion in . . .  . [Sierra Club V. Hickel, 9 Cir., 
433 F.2d 24 (1970), affirmed only on the ground of lack 
of standing to sue, 405 U.S. 727 (1972)] . . . .  [T]he 
statute involved in that case, 16 U.S.C. § 497 (1970), 
has no provision comparable to that in Section 28 of 
the Mineral Leasing Act expressly stating that no rights- 
of-way for the uses in question shall be granted except 
under the provisions, conditions and limitations of the 
statute.” Wilderness Society I, 479 F.2d at 869-70.



42

that Alyeska selected for its pipeline are unique and 
irreplaceable. See Appendix A, infra. The project, 
however conceived and executed, will substantially 
and irretrievably alter their ecology and character 
for the rest of time. The preservation of Congress’ 
right to protect these lands from needless degradation 
and to determine their most beneficial use was a 
matter of obvious national importance.

The importance of the environmental concerns that 
prompted the litigation below was confirmed and 
given concrete focus in 1969 when Congress passed 
the National Environmental Policy Act, the first and 
broadest of a series of federal statutes specifically 
designed to protect and restore the national environ­
ment.55 NEPA was predicated on the recognition by 
Congress that:

“As the evidence of environmental decay and de­
gradation mounts, it becomes clearer . . . that 
the Nation cannot continue to pay the price of 
past abuse . . . .

“If the United States is to create and main­
tain a balanced and healthful environment, new 
means and procedures to preserve environmental 
values in the larger public interest, to coordinate 
Government activities that shape our future en­
vironment, and to provide guidance and incen-

55 See also Noise Control Act of 1972, 42 U.S.C. § 4901 et 
seq. (Supp. II, 1972) ; Marine Protection, Research, and 
Sanctuaries Act of 1972, 33 U.S.C. § 1401 et seq. (Supp. II, 
1972) ; Federal Water Pollution Control Act Amendments of 
1972, 33 U.S.C. § 1251 et seq. (Supp. II, 1972) ; Clear Air 
Amendments of 1970, 42 U.S.C. § 1857 (a) et seq. (1970) ; 
Federal-Aid Highway Act of 1986, 23 U.S.C. § 138 (1970).



43

fives for State and local government and for 
private enterprise must be devised.” 6,6

In NEPA, Congress expressly declared that the 
Nation’s goals include “fulfill [ing] the responsibilities 
of each generation as trustee of the environment for 
succeeding generations” and “attain [ing] the widest 
range of beneficial uses of the environment without 
degradation [and] risk to health or safety.” 57 In 
recognition of the “critical importance of restoring 
and maintaining environmental quality to the overall 
welfare and development of man,” 58 Congress estab­
lished the “action-forcing” 59 procedures of Section 
102(2) (c). These procedures are designed to ensure 
that federal actions which might have significant en­
vironmental consequences, including private projects 
requiring government approval, be delayed until their 
consequences have been analyzed and ways to mini­
mize them considered.

66 S. Rep. No. 91-296, 91st Cong., 1st Sess. 5 (1969). Com­
pare President Nixon’s Special Message to1 the Congress Out­
lining the President’s 1972 Environmental Program, 8 Pres. 
Doe. 218-19 (Feb. 8, 1972) :

is literally now or never’ for true quality of life 
in America . . . .  Environmental concern must crystal­
lize into permanent patterns of thought and action. 
What began as an environmental awakening must mature 
finally into a new and higher environmental way of life.”

57 Section 101(b), 42 U.S.C. § 4331(b).
58 Section 101(a), 42 U.S.C. § 4331 (a).
59 Hearings on S. 1075, S. 237, and S. 1752 Before the Sen­

ate Comm, on Interior and Insular Affairs, 91st Cong., 1st 
Sess, 116 (1969) (remarks of Senator Jackson).



44

NEPA’s enactment leaves no doubt that “the com­
mitment to improving and protecting our natural en­
vironment” is, as the court below held it to be, “among 
the most important” facets of “one of the most vital 
of current national policies.” Wilderness Society II, 
495 F.2d at 1034.00 As applied to the proposed Trans-

60 Numerous other courts, including this Court, have ac­
knowledged the national importance of environmental protec­
tion, and the major role to be played by NEPA in preventing 
environmental abuse. E.g., United States V. SCRAP, 412 U.S. 
669, 693 (1973) (NEPA is a “major federal [effort] at re­
versing the deterioration of the country’s environment” ) ; 
Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (“Aesthetic 
and environmental well-being, like economic well-being, are 
important ingredients of the quality of life in our society”) ; 
Environmental Defense Fund v. TV A, 468 F.2d 1164, 1174 
(6th Cir. 1972) (NEPA is a clear Congressional mandate 
recognizing “the obligation of all citizens” to incorporate en­
vironmental considerations into the decisionmaking process) ; 
Aldington Coalition on Transp. V. Volpe, 458 F.2d 1323, 1326 
(4th Cir.), cert, denied, 409 U.S. 1000 (1972) (“It is the de­
clared public policy of the United States to protect and pre­
serve the national environment “to the fullest extent pos­
sible’ ”) ; Lathan V. Volpe, 455 F.2d 1111, 1116, 1121 (9th 
Cir. 1971) (NEPA is designed to implement “important pub­
lic policies” and to prevent “environmental harm”) ; National 
Helium Corp. V. Morton, 455 F.2d 650, 656 (10th Cir. 1971) 
(National interests are protected by NEPA’s requirement 
that agencies “assess environmental consequences in formu­
lating policies”) ; Scenic Hudson Preserv. Conf. v. FPC, 453 
F.2d 463, 473 (2d Cir. 1971), cert, denied, 407 U.S. 926 
(1972) (full consideration and exploration of environmental 
factors is required by NEPA to ensure “the conservation of 
natural resources” and the “maintenance of natural beauty”) ; 
Calvert Cliffs’ Coord. Comm. V. Atomic Energy Comm’n, 449 
F.2d 1109, 1122 (D.C. Cir. 1971) (“The sweep of NEPA is 
extraordinarily broad, compelling consideration of any and 
all types of environmental impact of federal action”) ; Zabel



45

Alaska Pipeline, the Mineral Leasing Act and NEPA 
fit together to provide a single, clear national objec­
tive and a set of mutually reinforcing procedural 
safeguards designed to protect the public lands of 
Alaska from unnecessary environmental degradation.

2. The Benefits Conferred by the Litigation Were 
Substantial

The court’s conclusion that “concrete and . . . im­
portant benefits” resulted from the litigation is amply 
supported by the record. See Wilderness Society II, 
495 F.2d at 1033.61 These benefits furthered the ob­
jectives of both the Mineral Leasing Act and NEPA. 
They resulted from respondents’ early recognition of 
the project’s risks, respondents’ perserverance in the 
litigation over a three-year period, and the ultimate 
success of respondents’ efforts to compel Alyeska to 
go to Congress.

First, Alyeska was not prepared for pipeline-re­
lated construction in 1970 and respondents averted a 
possible environmental and engineering disaster by 
obtaining a preliminary injunction at that time. 
Wilderness Society II, 495 F.2d at 1033 n.3.

No one now disputes that “industry [had] seriously 
underestimated the real technical difficulties of the

V. Tabb, 480 F.24 199, 200 (5th Cir. 1970), cert, denied, 401 
U.S. 910 (1971) (the preservation of our environment is an 
issue of “spectacular public importance”).

61 The court of appeals noted that the litigation below also 
produced other equally important, but less tangible, benefits 
relating to “the proper functioning of our system of govern­
ment under the Constitution.” Wilderness Society II, 495 
F.2d at 1033.



46
task and failed to appreciate fully—particularly at 
the outset—the new conditions for decision-making 
in matters that substantially affect the environment. 
On its part, government was ill-equipped both in­
stitutionally and informationally for dealing with the 
complex problems of the pipeline.” 62

Alyeska’s lack of preparedness threatened more 
than avoidable (and potentially massive) degradation 
of irreplaceable wilderness, wildlife, fish, and vegeta­
tion. A major miscalculation on any one of a broad 
range of environmental problems (permafrost, ero­
sion, earthquakes, river scour, flooding) threatened 
“the physical integrity of the pipeline itself.” 63 By 
definition, averted potential disasters cannot be quanti­
fied. But in the present case, the risk of going ahead 
on a piecemeal basis—as was contemplated in 1970— 
was clearly significant. And, in a very real sense, 
respondents’ early intervention helped to save 
Alyeska’s principals not only from their own errors 
but from direct, substantial and potentially irrecover­
able economic loss.64

62 Address by the Honorable Russell E. Train to the Joint 
Judicial Conference of the Eighth and Tenth Circuits, June 
29, 1973, quoted at Wilderness Society II, 495 F.2d at 1033- 
34 n.3.
63 See Address by Russell E. Train, supra:

“If the pipeline had been constructed using the original 
design specifications, it would very likely have resulted 
in not only very serious environmental damage but also 
serious operational problems. Indeed, the physical in­
tegrity of the pipeline itself was very much at stake.” 
Ibid.

34 As Administrator Train has explained:
“ [T]he case of the Alaska pipeline has not been simply 
one of aesthetics, or of concern over wildlife and wilder-



47

Second, once the preliminary injunction was is­
sued, the litigation served as a catalyst for the joint 
efforts of industry and government to reduce the 
project’s risks. Wilderness Society II, 495 F.2d at 
1034-35.

The process that culminated in Congress’ authori­
zation of the Trans-Alaska Pipeline was, as Adminis­
trator Train has characterized it, “one of learning 
for both industry and government.” f’5 The reduction

ness disturbance, or worries over water pollution, im­
portant as all of these are. It was clearly an example 
where sound environmental analysis was essential to 
sound engineering and siting.” Ibid. See p. 7 swpra.

Former Secretary of the Interior Hickel has been quoted as 
asserting that Alyeska’s principals initially brought a “tem­
perate zone mentality” to Alaska, reckoning that what they 
had done in Oklahoma they could do just as well in Alaska. 
His conclusion, while stated in blunter terms, mirrors that 
of Mr. Train: “It wouldn’t  have just been an environmental 
disaster, it would have been an engineering disaster.” The 
Alaska Pipeline, Smithsonian (Vol. 5, No. 7) 38, 42 (October 
1974). Compare Statement of Alaska State Pipeline Coor­
dinator Chuck Chapman, quoted in Alaska Construction & 
Oil 24 (June 1974) (“In 1969 when . . . TAPS [Trans-Alaska 
Pipeline System] wanted to build the pipeline, they hadn’t  
done their homework.”).

65 Address by Russell E. Train, supra, note 62.
A quick insight into the progression of that process can be 

gained if the Court were to compare the sketchy papers that 
accompanied Alyeska’s principals’ initial application, Rule 
9 (h) Documents, Tab B (R. 152) with the 29-volume Proj­
ect Description ultimately submitted (Ad. Rec. 1.1.2.3) (R. 
239) and compare the Interior Department’s Final Impact 
Statement on the project (Ad. Rec. 2.14) (R. 239) with the 
Department’s earlier efforts—the eight-page document dated 
March 20, 1970, titled “Environmental Statement Yukon



48

in risk that resulted from this process was cited by 
Congress as a determinant factor in its decision to 
authorize the project. See legislative history cited at 
pp. 26-28 supra.

Some of the more significant changes that reduced 
the project’s risks can be summarized briefly. 
Alyeska’s principals originally proposed to bury all 
but five percent of the line. The consequence would 
have been the thawing of permafrost to such an 
extent that resulting pressures on the pipe would 
have caused numerous ruptures. As now conceived, 
more than 300 miles of pipeline that were originally 
to be buried will now be above ground. Alyeska’s 
principals similarly planned to cross all rivers by 
burying the pipe beneath river beds. If they had done 
so, numerous hydrologic hazards would have threaten­
ed the integrity of the pipeline. Current design plans 
now call for several overhead crossings.

The delay in project start-up also permitted both 
Alyeska and the government to undertake detailed 
geologic, soils, and engineering studies on many as­
pects of the environment that resulted in a safer 
pipeline design. Because of these studies, there have 
been numerous changes in the alignment of the route 
to avoid hazardous areas that the original route would 
have traversed. Other substantial risk reduction 
measures include a specialized elevated seismic design 
to carry the pipeline over the Denali Fault Zone®6

River-North Slope Road” (P. Docs. I, Tab K) (R. 207) and 
the descriptive document dated January 15, 1971, titled “Draft 
Impact Statement” (Ad. Rec. 2.13) (R. 239).

66 This is a major fault zone on which there has been exten­
sive surface displacement over time.



49

and the development of specialized devices to permit 
safer pipeline burial in permafrost.*7

Obviously many factors contributed to the develop­
ment of an environmentally and technologically safer 
pipeline project. But both government and industry 
alike have acknowledged that this litigation played an 
important role in the process. On several occasions 
Secretary Morton asserted that his Department’s ef­
forts were responsive to issues raised in the litiga­
tion:

“We are under an injunction not to issue a 
permit . . . .  [Bjefore we go to court we better 
look at the whole work . . . .” 68

*  *  *  *

“ [W]e are taking as thorough a process as we 
can, definitely involving the best talents we can 
develop within the Government and without the 
Government as consultants to go at this job so 
that when we make a decision it will be a deci­
sion that has all of the criteria to back it up. 
The matter then will be an easier matter for 
the courts to decide.” 69

Indeed, Secretary Morton concluded his deposition 
in this case with an expression of appreciation for 
respondents’ efforts:

6T See Ad. Rec. 1.1.2.3 (R. 239).
68 Statement of Secretary Morton, Press Conference, Oc­

tober 4, 1971, P. Docs. II, Tab G, p. 30 (R. 207).
69 Statement of Secretary Morton, Hearings on S. 35, S. 835, 

and S. 1571 Before the Senate Comm, on Interior and Insular 
Affairs, 92d Cong., 1st Sess., pt. 2, 455 (April 29, 1971) ; P. 
Docs. II, Tab D, p. 455 (R. 207).



50

“I want to thank all of you. I think it is just 
going through all of this that we are going to 
have a better world. I am for it.” 70

And the president of one of Alyeska’s major prin­
cipals, in testimony before the Senate Committee on 
Interior and Insular Affairs, candidly admitted:

“We have learned from the environmentalists. I 
think it is perfectly true to say we can build a 
better line today, a better and more environ­
mentally safe line today, because of the inter­
vention of the environmentalists than we could 
have built 4 years ago.” 71

Third, and most significant, the result of respond­
ents’ success in “forcing Alyeska to go to Congress” 
was the imposition by Congress of “important new 
requirements” which “protect the public interest” and

70 Deposition of Secretary Morton, June 24, 1972, pp. 71- 
72 (R. 225).

71 Statement of Thornton F. Bradshaw, President, Atlantic 
Richfield Co., Hearings on S. 1040, S. 1041, S. 1056, S. 1081 
Before the Senate Comm, on Interior and Insular Affairs, 93d 
Cong., 1st Sess., pt. 2, at 383 (1973). Accord, Interview with 
Governor William A. Egan of Alaska, Alaska Construction & 
Oil Report 48 (February 1971) (“the hue and cry, as they 
called it in the beginning, may have been a blessing in dis­
guise for the long-range operations of this kind of develop­
ment” ). Compare Scenic Hudson Preserv. Conf. V. FPC, 453 
F.2d 463, 481 (2d Cir. 1971), cert, denied, 407 U.S. 926
( 1972) :

“The petitioners performed a valuable service in that 
earlier case, and later before the Commission. By reason 
of their efforts the Commission has reevaluated the en­
tire Cornwall project. The modifications in the project 
reflected a heightened awareness of the conflict between 
utilitarian and aesthetic needs.”



51

reflect the environmental, technological, and other con­
cerns that prompted the litigation below. Wilderness 
Society II, 495 F.2d at 1033.

In its brief, Alyeska labors to create the impres­
sion that following the court’s decision in Wilderness 
Society I Congress made “a legislative finding that 
the Department’s efforts were fully adequate” and 
quickly rubber-stamped the construction of the Trans- 
Alaska Pipeline by simply removing the previous 
width limitation. See P. Br. 35. This is simply un­
true. Although there were those urging that the 
national interest required the immediate commence­
ment of pipeline construction, Congress spent ten 
months conducting hearings, deliberations and de­
bate, in order to assure careful consideration of the 
merits of the pipeline proposal. Most significantly, 
the end result of this process, Pub. L. No. 93-153 
(Appendix C, infra), contains on its face the best 
evidence of the concrete and substantial benefits of 
the litigation and the importance that Congress placed 
on the concerns that it raised.

Thus, Title I sets forth a completely new charter 
for pipelines crossing public lands. Explicit “Pipe­
line Safety” (Section 28(g)) and “Environmental 
Protection” (Sec. 28(h)) requirements—including re­
quirements “designed to control or prevent (i) dam­
age to the environment (including damage to fish 
and wildlife habitat, (ii) damage to public or private 
property and (iii) hazards to public health and safe­
ty”—have now for the first time been imposed on such 
pipelines by Congress. The Secretary of the Depart­
ment of Transportation is now required to “cause 
the examination of all pipelines and associated fa-



52

cilities on Federal lands” and to “cause the prompt 
reporting of any potential leaks or safety problems” 
(Section 28(w )(3 )); provisions are made for the 
suspension or termination of rights-of-way for fail­
ure to comply with the Act’s requirements (Section 
28(o)); and annual reports are required from the 
Secretary of the Interior on the “safety and environ­
mental requirements imposed” by the Act (Section 
28(w) (1)) and from the Secretary of the Depart­
ment of Transportation on “any potential dangers of 
or actual explosions, or potential or actual spillage 
on Federal lands” (Section 28(w) (4)).

Significantly, the new Act reflects much the same 
concern for public land use that prompted the restric­
tive width limitation of its predecessor and does not 
simply confer unfettered discretion on the Secre­
tary, Thus, Congress retained the fifty foot right- 
of-way limitation “unless the Secretary or agency 
head finds, and records the reasons for his finding, 
that in his judgment a wider right-of-way is neces­
sary for operation and maintenance after construc­
tion, or to protect the environment or public safety” 
(Section 28(d)) (emphasis added). The Act requires 
the Secretary “to notify the House and Senate Com­
mittees on Interior and Insular Affairs promptly up­
on a receipt of an application for a right-of-way for 
a pipeline twenty-four inches or more in diameter” 
and to refrain from issuing permits for such pipe­
lines until those Committees have an opportunity to 
act (Section 28(w) (2)).

Moreover, the Act explicitly adopts the principle 
of one of the key arguments in respondents’ NEPA 
brief concerning the desirability of common corridors



53

for oil and gas pipelines. See p. 21 n. 36 supra. It 
provides that “ [i]n order to minimize adverse en­
vironmental impacts and the proliferation of separate 
rights-of-way across Federal lands, the utilization of 
rights-of-way in common shall be required to the ex­
tent practical” (Section 28(p )). Moreover, “ [i]n 
order to minimize adverse environmental impacts and 
to prevent the proliferation of separate rights-of-way 
across Federal lands” the Act requires the Secretary 
of the Interior to “review the need for a national 
system of transportation and utility corridors across 
Federal lands and submit a report of his findings 
and recommendations to the Congress and the Presi­
dent by July 1, 1975” (Section 28(s)).

The environmental and other safeguards imposed 
on the construction of the Trans-Alaska Pipeline in 
Title II of the Act are similarly far-reaching. The 
“ [r] ights-of-way, permits, leases and other authori­
zations” to be issued to Alyeska are expressly made 
subject to the various environmental and technologi­
cal safeguards of Title I (Section 203(c)).'72 Strict 
liability has been imposed on Alyeska for “damages 
in connection with or resulting from activities along 
or in the vicinity of the . . . right-of-way” (Section 
204(a)(1)). Specifically, “ [i]f any area within or 
without the right-of-way . . .  is polluted . . . and 
such pollution damages or threatens to damage 
aquatic life, wildlife, or public or private property, 
the control and total removal of the pollutant shall 
be the expense of [Alyeska]” (Section 204(b)); 
there shall be strict liability “without regard to fault 
in accordance with the provisions of this subsection

72 With the exception of subsections (h )(1 ), (k), (q), (w) 
(2 ), and (x).



54

for all damages, including clean-up costs, sustained 
by any person or entity, public or private, including 
residents of Canada, as the result of discharges of 
oil from . . . vessel [s]” transporting pipeline oil 
(Section 204(c)(1)); and Alyeska is now obligated 
by law to maintain a $100,000,000 liability fund to 
satisfy claims (Section 204(c)(5)).

Finally, specific provisions are also included in the 
Act relating to vessel construction (Section 401) and 
vessel traffic control (Section 402) for the sealeg 
portion of the system.

3. Private Enforcement Was Required To Vindicate 
the Statutory Interests and Confer the Benefits 
Identified by the Court

The court of appeals concluded that this was a case 
where the effectuation of the statutory interests and 
the conferral of the benefits described above “de­
pend [ed] on the diligence of private attorneys gen­
eral and their willingness to bring suit.” Wilder­
ness Society II, 495 F.2d at 1034. Alyeska speculates 
that the “beneficial results” cited by the court “might 
have occurred” without respondents’ lawsuit. P. Br. 
11, 36-42.73 But the record clearly supports the 
court’s decision to the contrary.74

73 Alyeska’s Brief is contradictory on this point. On the 
one hand, Alyeska argues that even without the litigation 
pipeline construction would not have started until full en­
vironmental studies were undertaken and that these studies 
would have been done without respondents’ litigation. P. Br. 
36-42. On the other hand, Alyeska argues that beginning 
in 1970 respondents caused a three-year delay in the pipe­
line’s construction by their litigation seeking environmental 
studies. P. Br. 38. Alyeska cannot have it both ways.

74 Alyeska now apparently seeks full-blown formal “hear­
ings” on the causation issue. P. Br. 42. But Alyeska never



55

Obviously, there can be no dispute that private en­
forcement was essential to assure that the objective 
of the Mineral Leasing Act’s width limitation was 
fulfilled. This case was one, not unique in our hisr 
tory, where government officials were willing to 
acquiesce in an unauthorized private use of public 
lands. Even after the clear warning of the prelim­
inary injunction, Alyeska and the Government were 
determined to go forward with the pipeline project 
without seeking Congressional approval. As the court 
below so vividly described the situation: “These com­
panies have now come into court, accompanied by the 
executive agency authorized to administer the statute, 
and have said, ‘This is not enough land, give us 
more’.” Wilderness Society I, 479 F.2d at 891.

Since Alyeska was unwilling to observe and the 
Government was unwilling to enforce Congressional 
land use policy, private enforcement of the law was 
necessary. And no one can deny that the new envi­
ronmental, technological, and land use safeguards im­
posed by Pub. L. No. 93-153, on all future pipelines 
crossing public lands as well as on the Trans-Alaska 
Pipeline, are the direct consequence of respondents’ 
success in the court of appeals. Without that success 
clearly there would have been no Pub. L. No. 93-153.

Insofar as the complementary objectives of NEPA 
were concerned, it is indisputable that in 1970 Gov-

requested such hearings before the court of appeals and never 
expressed any dissatisfaction with the procedures that court 
used in ruling on respondents’ Bill of Costs. In fact, the 
procedure followed by the court was both fair and workable, 
and afforded Alyeska the unfettered opportunity to present 
all of its causation arguments.



56

ernment and industry were prepared to proceed on a 
piecemeal basis with the construction of the Trans- 
Alaska Pipeline without having evaluated the grave 
potential risks to the environment and to the physi­
cal integrity of the pipeline entailed in such an ap­
proach. The district court determined at that time 
that irreparable injury was the likely result of that 
course of action. Wilderness Society v. Hickel, 325 
F. Supp. at 424. For a considerable time thereafter 
—as evidenced by the wholly inadequate “Draft Im­
pact Statement” of January 1971 prepared with Al- 
yeska’s assistance—government and industry work­
ing together were still not doing the job. In short, 
continued private citizen action was necessary as it 
has proved necessary in other environmental mat­
ters.75

75 The need for private enforcement of Congressional en­
vironmental policy is widely recognized. In its second annual 
report the Council on Environmental Quality stated:

“Perhaps the most striking recent legal development has 
been the step-up in citizen ‘public interest’ litigation to 
halt degradation of the environment. In the face of a 
history of administrative decisions that ignored envir­
onmental impacts and against a tide of legislative delays 
in developing pollution control law, citizens concluded 
that they must use the courts to cure the neglect. The 
citizen litigation has not only challenged specific govern­
ment and private actions which were environmentally 
undesirable. It has speeded court definition of what is 
required of Federal agencies under environmental pro­
tection statutes. The suits have forced greater sensi­
tivity in both government and industry to environmental 
considerations. And they have educated lawmakers and 
the public to the need for new environmental legislation.” 
Second Annual Report, 155-56 (1971)

[Footnote continued on page 57]



57

i 4. The Litigation Placed Heavy Burdens on Re­
spondents and Their Counsel

Finally, the record also clearly supports the court’s 
characterization of the litigation below as one “of 
monumental proportions” that placed a “heavy bur­
den” on respondents. Wilderness Society II, 495 F.2d 
at 1036.

Here, as in Bradley v. Richmond School Board, 416 
U.S. 696, 718 (1974), there was substantial “dis­
parity in the respective abilities of the parties ade­
quately to present and protect their interests.” Re­
spondents were required to match their modest finan­
cial resources against the enormous resources of the 
Federal Government and a consortium of large oil 
companies.™ Compare Bradley v. Richmond School 
Board, 416 U.S. at 718 n.25 (“ ‘Ranged against the

75 [Continued]
The need for private enforcement has also been recognized 

by Congress in the Clean Air Amendments of 1970 and the 
Federal Water Pollution Control Act Amendments of 1972, 
both of which specifically provide for citizen suits and for 
attorneys’ fees awards to facilitate such suits. 42 U.S.C. 
§ 1857h-2 (d) (1970); 33 U.S.C. § 1365(d) (Supp. II, 1972). 
See pp. 65-66, infra.

76 The seven beneficial owners of Alyeska constitute, respec­
tively, the second (Exxon), sixth (Mobil), twenty-second 
(ARCO), thirty-seventh (Phillips), fiftieth (Union), eighty- 
sixth (Sohio), and eighty-ninth (Amerada-Hess) largest cor­
porations by net sales in the United States. 1974 National 
Petroleum News Factbook 29. (Ranked according to the 
Fortune directory of the 500 largest industrial corporations, 
May 1973.) Their distinguished counsel in the litigation below 
and before this Court is the large and prestigious law firm 
of Steptoe & Johnson. See Martindale-Hubbell Law Directory, 
vol. 1, 2954B-2959B (1974).



58

plaintiffs have been the legal staff of the City Attor­
ney’s office and retained counsel highly experienced 
in trial work . . . .  Few litigants—even the wealthi­
est—come into court with resources at once so for­
midable and so suited to the litigation task at hand 

La Raza Unida v. Volpe, 57 F.R.D. 94, 101 
(N.D. Cal. 1972) (“the average . . . litigant must 
hesitate, if not shudder, at the thought of ‘taking on’ 
an entity such as the California Department of High­
ways, with no prospect of financial compensation for 
the efforts and expenses rendered”) ; NAACP v. 
Allen, 340 F. Supp. 703, 710 (M.D. Ala. 1972), aff’d, 
493 F.2d 614 (5th Cir. 1974) (“ ‘an enterprise on 
which any private individual should shudder to em­
bark’ ” ).

Extensive factual discovery, expert scientific analy­
sis, and legal research on a broad range of techno­
logical, environmental, and land use questions were 
required to produce “a record and set of briefs com­
mensurate with the multi-billion-dollar project at 
stake.” Wilderness Society I, 479 F.2d at 846. The 
preparation and presentation of the record, briefs, and 
oral argument that served as the basis of the court 
of appeals’ decision in Wilderness Society I  consumed 
over 4,500 hours of attorneys’ time, not to mention 
the substantial effort (amounting to several hun­
dred man-hours) expended by volunteer legal interns 
and clerical staff. A full description of the efforts 
undertaken in this regard is contained in the Affi­
davit of Counsel attached to the Bill of Costs at Jt. 
App. 213-19.

The court of appeals noted that “ [t]his burden was 
assumed not in the hope of obtaining a monetary



59

award.” Wilderness Society II, 495 F.2d at 1032. 
And it was in fact carried out under heavy con­
straints imposed by respondents’ modest budgets. See 
Affidavit of Counsel, supra. Obviously, therefore, the 
burden of this litigation posed a particularly formid­
able obstacle to the beneficial results it produced. And, 
as the court declared:

“In such cases, ‘[i]f successful plaintiffs were 
routinely forced to bear their own attorneys’ 
fees, few aggrieved parties would be in a posi­
tion to advance the public interest by invoking 
the injunctive powers of the federal courts.’ 
Newman v. Piggie Park Enterprises, Inc., . . . 
390 U.S. at 402 . . . .  Where the law relies on 
private suits to effectuate congressional policy in 
favor of broad public interests, attorneys’ fees 
are often necessary to ensure that private liti­
gants will initiate such suits. See Lee v. South­
ern Home Sites Corp., . . . 444 F.2d at 145.” 77

B. The Factors Identified by the Court Are Appropri­
ate Factors in Determining Whether To Shift Fees.

The appropriateness of the factors which guided the 
fee award in the present case is amply demonstrated 
by this Court’s attorneys’ fees decisions, this Court’s 
decisions concerning judicial effectuation of Congres­
sional policies and access to the courts, Congressional 
legislation on attorneys’ fees, and the attorneys’ fees 
decisions of lower federal courts.

Just last Term, this Court recognized that “the 
expense of litigation may often be a formidable if not 
insurmountable obstacle to the private litigation nec­
essary to enforce important policies.” F. D. Rich Co.

77 Wilderness Society II, 495 F.2d at 1030.



60

v. United States, 417 U.S. at 130. Thus, this Court 
is aware that at least in some cases private enforce­
ment of Congressional policies requires a mechanism 
which mitigates the costs of litigation. The factors 
relied upon by the court of appeals are appropriate 
because they serve precisely this function. These 
factors describe “overriding considerations” which 
justify a fee award in “the interests of justice.” 
Mills v. Electric Auto-Lite Co., 396 U.S. at 391; Hall 
v. Cole, 412 U.S. at 5.

This Court’s attorneys’ fees decisions in “common 
benefit” cases have made clear that where a litigant 
produces benefits to others, a fee award may be ap­
propriate. As part of the evolution of the “common 
fund” exception into a “common benefits” exception, 
the Court in both Mills and Hall recognized that 
there is an added reason for shifting fees, not previ­
ously alluded to in the earlier cases, when the bene­
fits conferred by the litigation effectuate Congres­
sional policy. In Mills, the Congressional policy ef­
fectuated was that of “fair and informed corporate 
suffrage.” 396 U.S. at 396. In Hall, it was the Con­
gressional policy “that all union members be guaran­
teed at least ‘minimum standards of democratic proc­
ess . .  . .’ ” 412 U.S. at 7.

As a corollary, the Court noted in Hall that when 
the litigation effectuates Congressional policy, fee 
shifting is appropriate because it will affirmatively 
facilitate such litigation. The Court recognized the 
“ ‘unescapable fact’ ” that when the effectuation of 
Congressional policy depends upon private enforce­
ment, litigation expenses serve as a barrier to that 
enforcement. In such cases, effective Implementation



61

may depend on the ability of courts to fashion an 
equitable mechanism for the shifting of fees.78

In analogous areas, the Court has emphasized that 
courts have a responsibility to exercise their equitable 
powers to facilitate the private enforcement of Con­
gressional statutes. As the Court has explained, “it 
is the duty of the courts to be alert to provide such 
remedies as are necessary to make effective the con­
gressional purpose.” J. I. Case Co. v. Borak, 377 
U.S. 426, 433 (1964).79 Because government enforce­
ment resources are limited and because sometimes 
the government does not correctly follow the law, pri­
vate parties must often be relied upon to enforce the 
law. E.g., Trafficante v. Metropolitan Life Insurance

78 To deny attorneys’ fees, the Court concluded:
“ ‘ [W] ould be tantamount to repealing the Act itself by 
frustrating its basic purpose. It is difficult for individual 
members of labor unions to stand up and fight those who 
are in charge. The latter have the treasury of the union 
at their command and the paid union counsel at their 
beck and call while the member is on his own . . . .  An 
individual union member could not carry such a heavy 
financial burden. Without counsel fees the grant of fed­
eral jurisdiction is but a gesture for few union members 
could avail themselves of it.’ ” 412 U.S. at 13, quoting 
court of appeals opinion, 462 F.2d 777, at 780-81.

79 See generally Sullivan v. Little Hunting Park, Inc., 396 
U.S. 229, 239 (1969); Jones v. Alfred H. Mayer Co., 392 U.S. 
409, 414 n. 13 (1968); Bellv. Hood, 327 U.S. 678, 684 (1946). 
This Court has noted that equity courts have particularly 
broad powers to mold remedies when public interests as op­
posed to mere private interests are involved. Porter V. Warner 
Holding Co., 328 U.S. 395, 398 (1946); United States V. 
Morgan, 307 U.S. 183, 194 (1939); Virginian Ry. V. System 
Fed’n, 300 U.S. 515, 552 (1937).



62

Co., 409 U.S. 205, 211 (1972) and cases cited; see 
Associated Industries v. Ickes, 134 F.2d 694, 704 (2d 
Cir.), vacated on other grounds, 320 U.S. 707 (1943). 
Thus, this Court has not hesitated to imply a private 
right of action to facilitate the enforcement of fed­
eral statutes which were merely declarative of cer­
tain rights,80 or which on their face provided only 
for enforcement by the government.81 In many cir­
cumstances, the Court has implied a right to com­
pensatory damages where the statute failed to pro­
vide for any.82 In short, the court of appeals was on 
traditional ground when it provided an equitable 
remedy in order to facilitate private enforcement nec­
essary to effectuate Congressional policies.

Other cases in this Court have long recognized both 
the significance of access to the courts and the reality 
of economic burdens to litigation. For example, this 
Court has granted citizen groups access to the courts 
through decisions on standing.83 It has held that ac­
cess to the courts must be protected because litiga-

80 E.g., Jones V. Alfred H. Mayer Co., 392 U.S. 409, 414 
n.13 and cases cited (1968); cf. Bivens V. Six Unknown Fed. 
Narcotics Agents, 403 U.S. 388 (1971).

81 See, e.g., Allen V. State Bd. of Elections, 393 U.S. 544 
(1969); J. I. Case Co. V. Borak, 377 U.S. 426 (1964).

83 Wyandotte Transy. Co. V. United States, 389 U.S. 191, 
202, 204 (1967); Mitchell V. Robert De Mario Jewelry, Inc., 
361 U.S. 288, 296 (1960); Steele V. Louisville & Nashville 
R.R., 323 U.S. 192, 207 (1944); Texas & P. Ry. v. Rigsby, 241 
U.S. 33, 39-40 (1916); / .  I. Case Co. v. Borak, supra; cf. 
Bivens V. Six Unknown Fed. Narcotics Agents, supra.

83 E.g., United States V. SCRAP, 412 U.S. 669 (1973). See 
also Office of Comm’n of United Church of Christ v. FCC, 
359 F.2d 994 (D.C. Cir. 1966).



63

tion is frequently more than “a technique of resolving 
private differences.” 84 And in numerous decisions, it 
has struck down economic burdens to litigation or 
mitigated the impact of those burdens.35 These cases 
demonstrate that the court of appeals properly con­
sidered, as one factor justifying the fee award in the 
present case, that it would relieve economic burdens 
which make access to the courts more difficult.

Congressional legislation on attorneys’ fees pro­
vides additional support for the factors relied upon 
by the court of appeals. These expressions of Con­
gressional policy are significant because, as the Court 
noted in Mills, both court-developed and Congres- 
sionally-developed fee awards rest upon the same 
basic determination that “overriding considerations 
indicate the need for such a recovery.” 396 U.S. at 
391-92. In determining how to exercise their equi­
table powers, courts have traditionally been guided 
by Congressional policy determinations:

“This legislative establishment of policy car­
ries significance beyond the particular scope of 
each of the statutes involved. The policy thus 
established has become itself a part of our law, 
to be given its appropriate weight not only in

84 NAACP  V. Button, 371 U.S. 415, 429-30 (1963); see also 
California Motor Transp. Co. V. Trucking Unltd., 404 U.S. 
508 (1972).

85E.g., Boddie V. Connecticut, 401 U.S. 371 (1971); John­
son v. Avery, 393 U.S. 483 (1969); Gideon V. Wainwright, 
372 U.S. 335 (1963). It has been noted that one main pur­
pose of the Federal Rules concerning- discovery is to simplify 
litigation and thereby eliminate some of its costs. Develop­
ments—Discovery, 74 Harv. L. Rev. 940, 945 (1961).



64

matters of statutory construction but also in 
those of decisional law.” 86

The Congressional policy with regard to the award 
of fees in appropriate cases is reflected in many 
statutes. For example, this Court recognized in 
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 
400 (1968), that the fee provisions of Title II of the 
Civil Rights Act of 1964 were premised on the rec­
ognition that there were economic barriers to the 
effectuation of Congressional policies through private 
litigation. As the court noted in Newman:

“When a plaintiff brings an action under that 
Title, he cannot recover damages. If he obtains 
an injunction, he does so not for himself alone 
but also as a ‘private attorney general,’ vindi­
cating a policy that Congress considered of the 
highest priority. If successful plaintiffs were 
routinely forced to bear their own attorneys’ 
fees, few aggrieved parties would be in a posi­
tion to advance the public interest by invoking

816 Moragne V. States Marine Lines, Inc., 398 U.S. 375, 390- 
91 (1970); see also Lee v. Southern Home Sites Corp., 444 
F.2d 143 (5th Cir. 1971). It is, of course, by now well settled 
that Congress’ action in specifically providing for fee awards 
to effectuate some statutes hardly precludes the courts from 
exercising their own powers in connection with other statutes. 
Indeed, this Court has specifically held that in situations where 
Congress has specifically made provisions for the award of 
fees in some titles of statutes but not others, courts are not 
precluded from exercising their equitable power to award 
fees with regard to the latter. Mills V. Electric Auto-Lite Co., 
396 U.S. at 390-91; Hall v. Cole, 412 U.S. at 10-11.



65

the injunctive powers of the federal courts.” 390 
U.S. at 402.87

Another example is the recently passed amendment 
to the Freedom of Information Act. In explaining- 
why the courts should assess reasonable attorneys’ 
fees against the United States in productive cases, 
the Senate report stated:

“Too often the barriers presented by court costs 
and attorneys’ fees are insurmountable for the 
average person requesting information, allowing 
the government to escape compliance with the 
law . . . The necessity to bear attorneys’ fees 
and court costs can thus present barriers to the 
effective implementation of national policies ex­
pressed by Congress in legislation.” 88

The Clean Air Amendments of 1970, 42 U.S.C. 
§ 1857h-2(d), and the Federal Water Pollution Con­
trol Act Amendments of 1972, 33 U.S.C. § 1365(d) 
provide particular guidance for the present case be­
cause both involve environmental policies. In specifi­
cally providing for a private right of action under 
both statutes, Congress recognized that private en­
forcement was necessary to effectuate these nationally 
important environmental policies.89 Moreover, both

87 See also Bradley V. Richmond School Bd., supra, 416 U.S. 
a t 719; Northcross V. Memphis Bd. of Educ., 412 U.S. 427, 
428 (1973).

88 S. Rep. No. 93-854, 93d Cong., 2d Sess. 17-18 (1974).
89 S. Rep. No. 91-1196, 91st Cong., 2d Sess. 36-39 (1970) 

(Clean Air Amendments); S. Rep. No. 92-414, 92d Cong., 1st 
Sess. 79-82 (1971) (Federal Water Pollution Control Act 
Amendments); H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 132 
(1972) (Federal Water Pollution Control Act Amendments).



66

Acts specifically provide for attorneys’ fees. Since 
only injunctive relief is generally available under each 
statute, significant economic obstacles may stand in 
the way of private enforcement. Thus, the Congres­
sional committees which reported out the attorneys’ 
fees provisions in each statute stated that “in bring­
ing legitimate actions . . . citizens would be perform­
ing a public service and in such instances the courts 
should award costs of litigation to such party.” 90

In short, the factors relied upon by the court of 
appeals were the same factors identified by Congress 
in legislation providing for fee shifting.

Finally, the appropriateness of the factors guiding 
the fee award in the present case is supported by the 
decisions of numerous lower courts which have relied 
upon these same factors in granting non-statutory 
fee awards in other so-called “private attorney gen­
eral” cases. Respondents do not assert that the re­
sults reached in the particular circumstances of all 
these cases were necessarily correct. But the factors 
which underlie many of these fee awards reflect the 
same considerations which guided the court below.

In particular, these lower federal courts, which 
have a day-to-day working knowledge of the realities 
of litigation, have found that there are substantial 
economic obstacles to certain private litigation which 
vindicates Congressional policies and confers bene­
fits on others beside the litigant. They have recog­
nized that fee awards may be appropriate in such

90 S. Rep. No. 91-1196, 91st Cong., 2d Sess. 38 (1970) (Clean 
Air Amendments); S. Rep. No. 92-414, 92d Cong., 1st Sess. 
81 (1971) (Federal Water Pollution Control Act Amend­
ments) .



67

cases because, without the prospect of recovering fee 
awards, worthy and productive litigation may be un­
justifiably discouraged.91

91 Leading cases in the courts of appeals which have fol­
lowed a private attorney general theory in making a fee 
award include: Knight V. Auciello, 453 F.2d 852 (1st Cir. 
1972) (fee awarded in Section 1982 civil rights case to “re­
move the burden from the shoulders of the plaintiff seeking to 
vindicate the public right”) ; Hoitt V. Vitek, 495 F.2d 219 (1st 
Cir. 1974) (fee awarded in Section 1983 prisoner rights case 
“to encourage important policy enforcement”) ; Lee V. South­
ern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971) (fee 
awarded in Section 1982 civil rights case “ [t]o ensure that in­
dividual litigants are willing to act as ‘private attorneys 
general’ to effectuate the public purposes of the statute” ); 
Cooper V. Allen, 467 F.2d 836 (5th Cir. 1972) (fee may be 
awarded in Section 1981 civil rights case for the reasons dis­
cussed in Lee, supra) ; Fairley V. Patterson, 493 F.2d 598 
(5th Cir. 1974) (fee awarded in Fourteenth Amendment 
reapportionment case where “private plaintiffs have aided in 
effectuating important congressional and public policies”) ; 
Cornist V. Richland Parish School Bd., 495 F.2d 189 (5th Cir. 
1974) (fee awarded in Section 1983 civil rights case where 
plaintiffs’ attorneys “benefited not only [plaintiffs] but all 
the black teachers in the Parish as well as the school system 
as a whole by virtue of the system’s being brought into com­
pliance with federal law and Congressional policy”) ; Taylor 
V. Perini, 503 F.2d 899 (6 th Cir. 1974) (on authority of 
Wilderness Society II, fee may be awarded in Section 1983 
prisoner rights case “where there is no potential substantial 
award of damages and where the cost of supporting a case 
for injunctive relief is high” because such an award serves 
to prevent the unjust discouragement of parties in bringing 
suit to vindicate important rights”) ; Donahue v. Staunton, 
471 F.2d 475 (7th Cir. 1972), cert, denied, 410 U.S. 955
(1973) (fee awarded in Section 1983 free speech case because 
the “relative financial positions of the parties” were disparate 
and the “benefit to the general public . . .  is substantial in



68

III. THE EQUITABLE FACTORS PRESENT IN THIS 
CASE SUPPORT A SHIFTING OF RESPONDENTS’ 
FEES TO ALYESKA.

Having concluded, for the reasons set forth in 
Point II, supra, that respondents and their counsel

this case and should not depend for its protection upon the 
financial status of the individual” deprived of his rights); 
Fowler V. Schwarzwalder, 498 F.2d 143 (8 th Cir. 1974) 
(fee may be awarded in Sections 1981 and 1983 civil rights 
case since “absent compelling circumstances,” a “ ‘private 
attorney general’ . . . seeking to vindicate Congressional 
policy of the highest priority and advance the public inter­
est should not be forced to bear the costs of litigation” ); 
Brandenberger v. Thompson, 494 F.2d 885 (9th Cir. 1974) 
(fee awarded in Section 1983 right to travel/welfare case 
because plaintiff “benefitted a significant class,” “vindicated 
[a] federally protected right,” had an insufficient monetary 
interest “to provide an incentive to bring the suit,” and 
could not rely upon the state attorney general to protect her 
righ t); cf. Stolberg v. Members of Bd. of Trustees for State 
Colleges, 474 F.2d 485 (2d Cir. 1973) (fee awarded in Section 
1983 case not because “defendants should suffer pecuniary 
punishment,” but rather “to assure that the plaintiff, and 
others who might similarly be forced to great expense to 
vindicate clear constitutional claims, are not deterred from 
securing such vindication by the prospect of costly, pro­
tracted proceedings which have become necessary only because 
of the obdurate conduct of the defendants”) .

Apparently, only the Fourth Circuit has rejected this ap­
proach, Bradley v. Richmond School Bd., 472 F.2d 318 (1972), 
and that decision was reversed by this Court on other grounds. 
416 U.S. 696 (1974). Recently in Sierra, Club V. Lynn, 502 
F.2d 43 (1974), the Fifth Circuit reaffirmed the private at­
torney general rationale but declined to apply it. See pp. 78- 
80 infra.

District court cases include the following: Sims V. Amos, 
340 F. Supp. 691 (M.D. Ala.), aff’d, 409 U.S. 942 (1972) 
(fees awarded in Section 1983 reapportionment suit “to



69

should not be required to bear the entire burden of 
this litigation, the court determined that, as between 
respondents and Alyeska, the equities of this case 
supported a shift of at least part of respondents’ fees

eliminate [financial] impediments to pro bono publico litiga­
tion” which benefitted plaintiffs’ class and effectuated a strong 
congressional policy); La Raza Unida V. Volpe, 57 F.R.D. 94 
(N.D. Cal. 1972) (fee awarded in environmental protection 
and housing assistance case brought under the Department of 
Transportation Act of 1966 and various federal housing 
statutes, because of “the strength of the Congressional policy, 
the number of people benefitted by the litigants’ efforts, and 
the necessity and financial burden of private enforcement”) ; 
Lyle v. Teresi, 327 F. Supp. 683 (D. Minn. 1971) (fee awarded 
in Section 1983 civil rights case “to encourage individuals 
injured by racial discrimination to seek judicial relief”) ; 
NAACP v. Allen, 340 F. Supp. 703 (M.D. Ala. 1972), aff’d, 
493 F.2d 614 (5th Cir. 1974) (fee awarded in Section 1983 
civil rights case because “the benefit accruing to plaintiffs’ 
class is substantial and important,” because plaintiffs “pro­
moted the purposes of congressional legislation,” and because 
such cases usually require “substantial financial sacrifices” 
and may cause the lawyer to suffer “community ostracism”) ; 
Harper v. Mayor and City Council, 359 F. Supp. 1187 (D. 
Md. 1973) (fee awarded in civil rights case brought under 
several statutes because “ [p] laintiffs have effectuated a strong 
congressional policy by maintaining this suit”); Incarcer­
ated Men v. Fair, 376 F. Supp. 483 (N.D. Ohio 1973) (fee 
awarded in Section 1983 prisoner rights case to “assure that 
the vindication of public constitutional rights need not depend 
upon the financial resources of the particular individuals who 
seek to secure those rights”); Newman v. Alabama, 349 F. 
Supp. 278 (M.D. Ala. 1972) (fee awarded in case vindicating 
prisoners’ constitutional rights because plaintiffs “benefited 
substantially a large class of others in the same manner as 
they have benefited themselves”); Wyatt v. Stickney, 344 F. 
Supp. 387 (M.D. Ala. 1972), appeal pending (fee awarded in 
suit vindicating mental patients’ right to treatment because



70

to Alyeska. Wilderness Society II, 495 F.2d at 1036. 
The court clearly stated in its opinion that its deci­
sion to shift a portion of respondents’ fees to Alyeska

the expenses “incurred in vindicating1 the public good were 
considerable,” the litigation benefited large numbers of people, 
and fee shifting is necessary “in order to eliminate the im­
pediments to pro bono publico litigation”); Jinks V. Mays, 
350 F. Supp. 1037 (N.D. Ga. 1972) (fee awarded in Section 
1983 employment rights/maternity leave case since a “sub­
stantial and important” benefit was conferred upon a class 
and “such litigation must be encouraged to vindicate the fed­
eral rights of our citizens”) ; Stanford Daily V. Zurcher, 366 
F. Supp. 18 (N.D. Cal. 1973) (fee awarded in Section 1983 
search and seizure case because “no remedial action can be 
expected from public officials,” “fee shifting is necessary to 
insure the vindication of important constitutional rights,” 
“because it is consistent with a remedy increasingly furnished 
by Congress, and because of the high social value placed upon 
the rights involved” ); Brown v. Balias, 331 F. Supp. 1033 
(N.D. Tex. 1971) (fee awarded in housing discrimination 
case brought under the Fair Housing Act and Section 1982 
since “much of the elimination of unlawful racial discrimina­
tion devolves upon private litigants and their attorneys”) ; 
Ross V. Goshi, 351 F. Supp. 949 (D. Hawaii 1972) (fee award 
in Section 1983 free speech case because “the only practicable 
means of enforcing section 1983 is by private parties,” be­
cause “private parties are least able to bear the cost of vindi­
cating constitutional rights” ) ; Thonen V. Jenkins, 374 F. Supp. 
134 (E.D.N.C. 1974) (fee awarded in Section 1983 free speech 
case to “encourage” vindication of constitutional rights); 
Kirkland V. New York Dept, of Correct. Serv., 374 F. Supp. 
1361 (S.D.N.Y. 1974) (fee awarded in employment discrimi­
nation case brought under various constitutional and statu­
tory provisions, applying the factors set forth in La Raza 
Unida, supra) ; Scott V. Opelika City Schools, 63 F.R.D. 144 
(M.D, Ala. 1974) (fee awarded in Section 1983 sex discrimi­
nation case which “effectuate [d] a strong Congressional 
policy” ) ; Palmer v. Columbia Gas Inc., 375 F. Supp. 634 (N.D.



71

was not intended to punish Alyeska as a law violator 
or as a wrongdoer. Ibid.

Alyeska argues that the Mineral Leasing Act and 
NEPA imposed no legal obligation upon it and that 
therefore no fees can be awarded against it as a 
matter of law. P. Br. 16-23. As a technical matter, 
Section 28 of the Mineral Leasing Act did impose an 
enforceable legal obligation on Alyeska to observe all 
of the provisions of the section under pain of forfei­
ture of any right-of-way that might be granted. See 
pp. 82-83 infra. Far more significantly, however, 
Alyeska’s conclusion that a violation of a legal obli­
gation is a prerequisite for a fee award is simply 
wrong. Courts of equity frequently award fees 
against persons who have not violated any legal obli­
gation. In common benefit cases, for example, the

Ohio 1974) (fee awarded in Section 1983 case challenging 
public utility termination procedures because case “substan­
tially benefited” present and future customers and because 
the award “assures that the vindication of constitutional 
rights need not depend upon the financial resources of the 
particular individuals who seek to secure those rights”) ; 
Calnetics Corp v. Volkswagen of America, Inc., 353 F. Supp. 
1219 (C.D. Cal. 1973) (fee awarded in private antitrust suit 
seeking only injunctive relief since plaintiff vindicated “a 
policy of compelling national economic interest” and pro­
duced benefits “not only for itself but for all competitors”, 
and because private actions are necessary to assure enforce­
ment of the antitrust laws).

See generally cases collected in Derfner, Attorneys’ Fees 
in Pro Bono Publico Cases, reprinted in Hearings on The 
Effect of Legal Fees on The Adequacy of Representation 
Before the Subcomm. on Representation of Citizen Interests 
of the Senate Judiciary Comm., 93d Cong., 1st Sess., pts. 3 
and 4, at 862 (1973).



72

fee award is paid by beneficiaries of the litigation— 
and sometimes even non-beneficiaries—-who violated 
no legal obligations.92 Thus, the court of appeals 
clearly had the power to require Alyeska to pay fees 
in this case if, under all the circumstances, the equi­
ties justify such an award. As demonstrated below, 
they clearly do.

The Trans-Alaska Pipeline was Alyeska’s project. 
The litigation resulted from actions and decisions for 
which Alyeska was directly responsible (and, in the 
case of the Mineral Leasing Act, legally liable). 
Alyeska was a real party in interest and took a lead 
role in the litigation to protect those interests. Aly­
eska received direct benefits from the litigation and 
is in a position to shift the award to beneficiaries of 
other benefits identified in the court’s decision. The

92 As Justice Harlan explained:
“This Court in Sprague upheld the District Court’s 
power to grant reimbursement for a plaintiff’s litigation 
expenses even though she had sued only on her own 
behalf and not for a class, because her success would have 
a stare decisis effect entitling others to recover out of 
specific assets of the same defendant. Although those 
others were not parties before the court, they could he 
forced to contribute to the costs of the suit by an order 
reimbursing the plaintiff from the defendant’s assets out 
of which their later recovery would have to come.” Mills, 
396 U.S. at 393. (Emphasis supplied.)

In the Sprague litigation even some non-beneficiaries were 
required to pay fees. See p. 37 supra. See also the discus­
sion of Mills, p. 81 n. 103 infra.

Alyeska’s argument that it had “no control” over the gov­
ernmental decision-making, P. Br. 21, is simply a corollary 
of its argument that it had no legal obligation and is not 
dispositive for the same reason.



73

award of fees works no hardship on Aiyeska and will 
not deter others similarly situated. And, finally, the 
court’s decision not to award fees against the other 
defendants worked no hardship or unfairness on 
Aiyeska.

A. The Litigation Stemmed from Actions and. Deci­
sions for Which Aiyeska Was Directly Responsible

As was consistently emphasized by Secretary Mor­
ton and other Interior Department officials through­
out the proceedings below, the Trans-Alaska Pipeline 
is a private project.98 The pipeline was conceived by 
and is intended to promote the economic interests of 
Alyeska’s principals. It was Alveska’s principals that 
decided to take their product to market over lands

m See, e.g., Statement of then Under Secretary Train, 
Hearings Before the Senate Comm, on Interior and Insular 
Affairs, 91st Cong., 1st Sess., pt. 2, 124 (Oct. 16, 1969) (“the 
private sector, at least, has made a decision that this is an 
important resource that it expects to develop and this has 
been a traditional way in which such decisions have been 
made in this country”); Statement by Secretary Morton, 
Hearings on S. 35, S. 835 and S. 1571 Before the Senate 
Comm, on Interior and Insular Affairs, 92d Cong., 1st Sess., 
pt. 2, at 454, 456 (April 20, 1971) (“the scope of our work 
here is to deal with the applications on our desk”) (“this is 
their money and this is their project”); Statement by Secre­
tary Morton, Oversight Hearings on the National Environ­
mental Policy Act and Its Implementation, Before the Senate 
Comms. on Public Work and Interior and Insular Affairs, 92d 
Cong., 1st Sess. 404 (March 9, 1972) (“we have to remember 
this is not a Government project”); Statement of (then) 
Under Secretary Pecora, Press Conference, March 20, 1972, 
9-10 (P. Docs. Ill, Tab B) (R. 207) (“The Department has 
before it at the present time only one application and this 
is an application from Prudhoe Bay to Valdez, and that is 
the application on which action will be taken.”).



74

owned by the Federal Government. It was also 
Alyeska’s principals that then decided to address 
their request for rights-of-way to the Secretary of 
the Interior rather than to Congress.

The decision to bypass Congress was made in the 
first instance by Alyeska’s principals, not by the Sec­
retary. When Alyeska addressed its application to 
the Secretary rather than to Congress, it did so with 
an awareness that the right-of-way allowed by stat­
ute was not adequate for the pipeline they proposed84 
and without reliance on any published regulation or 
other “expressly articulated position at the adminis­
trative level.” Wilderness Society I, 479 F.2d at 
868.95 Alyeska was free at any time to change its 
decision and address its request to Congress, but it 
declined to do so even after receiving a clear signal 
from the preliminary injunction.

At the time Wilderness Society 1 was decided, all 
seven judges on the court below recognized Alyeska’s 
clear responsibility for the decision to bypass Con­
gress and for the litigation spawned by that de­
cision :

94 See p. 8  supra.
95 See p. 25 n. 39 supra. In this respect, the instant case is 

clearly distinguishable from Committee To Stop Route 7 V. 
Volpe, 4 EEC 1681 (D. Conn. 1972), cited at P. Br. 22, where 
the court expressly found:

“The state agency simply relied upon a federal regulation 
. . . In these circumstances, it would not be appropriate 
to impose attorney’s fees as a cost against the state, when 
the federal agency made the erroneous decision which 
led to the plaintiffs’ judgment.” Id. at 1682.



75

“Congress . . . allowed pipeline companies to use 
a certain amount of land to construct their pipe­
lines. These companies have now come into 
court, . . . and have said, ‘This is not enough 
land; give us more.’ We have no . . . power to 
grant their request . . . .  (Emphasis added). 
479 F.2d at 891.

*  *  *  *

“I recognize that Alyeska must now go to Con­
gress for an amendment to a law that never 
contemplated that a pipeline of this magnitude 
would be required to be built under the harsh 
conditions of soil and climate that exist in Alas­
ka. That Is regrettable . . . , but it Is Congress 
that has the legislative power not this court.” 
(Emphasis added). (Separate opinion of Mac­
Kinnon, J.). 479 F.2d at 905.

*  *  *  *

“Regrettably, the would-be builders of the Alaska 
Pipeline sought from the courts rather than the 
Congress clearly necessary changes in the statu­
tory restriction on the use of public lands.” 
(Emphasis added). (Separate opinion of Wil- 
key, J.). 479 F.2d at 912.

Similarly, insofar as compliance with NEPA’s poli­
cies is concerned, Alyeska as the proponent of the 
project bore a responsibility to attend to its en­
vironmental consequences. Indeed, the regulations and 
guidelines adopted by the Department of Interior and 
other agencies to implement NEPA recognize that 
where NEPA is applied to private projects requiring 
federal authorization, the responsibility for the initial 
analysis of environmental consequences often rests



76

with the private application.96 As has been discussed 
above, both at the time of its original application, 
and for a substantial period thereafter, Alyeska was 
unprepared for the undertaking it espoused. This 
unpreparedness was a direct causative factor of the 
litigation.

All of this is not to say that Alyeska should be 
“punished” for any of the actions described above. 
But it does refute the inaccurate impression Alyeska 
seeks to convey in its brief that it was somehow a 
mere bystander to the events that led to the initiation 
of this litigation in March 1970 and to the court’s 
decision in Wilderness Society /. See P. Br. 16-23.97

96 See, e.g., Interior Dept. Regs, part 516, ch. 2 .9 (F )(2 ); 
Atomic Energy Commission, 39 Fed. Reg. 26279, §§ 51.20, 
51.21 (July 18, 1974) ; Law Enforcement Assistance Adminis­
tration, 28 C.F.R. §§ 19.9(b) (2), (b) (5), (c) ; Department of 
Agriculture: Rural Electrification Administration, 39 Fed. 
Reg. 23240, § V(D) (2) (June 27, 1974) ; Department of 
Transportation, 39 Fed. Reg. 35234, § 7 (e) (Sept. 30, 1974) ; 
Council of Environmental Quality, 40 C.F.R., ch. V, § 1500.7 
(c). To recognize Alyeska’s responsibility in this regard by 
no means derogates the nan-delegable legal duty of the Sec­
retary to make his own evaluation of environmental issues 
and to take responsibility for the scope and content of draft 
and final environmental statements. See Greene County Plan­
ning Bd. v. FPC, 455 F.2d 412, 420 (2d Cir.), cert, denied, 
409 U.S. 849 (1972).

97 The court’s conclusion that Alyeska’s responsibility for 
the project in question and for the events that led to the liti­
gation is a relevant consideration in determining where the 
equities lie as between Alyeska and respondents is grounded 
on solid equitable principles. See, e.g., Pompton v. Cooper 
Union, 101 U.S. 196, 204 (1879) (“Where one of two innocent 
persons must suffer a loss, and one of them contributed to 
produce it, the law throws the burden on him and not upon



77

B. Alyeska Was a Real Party in Interest and Took 
an Active Role in the Litigation

Alyeska did not merely contribute indirectly to the 
litigation by actions and decisions taken by its prin­
cipals outside the courtroom. As the court of ap­
peals noted, “after successfully persuading the In­
terior Department to grant the rights-of-way, Al­
yeska intervened in the litigation to protect its mas­
sive interests.” Wilderness Society II, 495 F.2d at 
1036.

Alyeska’s intervention was premised on the recog­
nition that as a private party it had “a greater in­
terest than the Secretary of the Interior in advanc­
ing arguments in support of the Secretary’s authority 
to issue the necessary rights-of-way and permits.” 5)8 
Once in the litigation, Alyeska played a vigorous and 
independent role in furthering and protecting those 
interests. Alyeska made extensive discovery demands 
on respondents and filed motions and memoranda on 
a broad variety of procedural matters. When re­
spondents requested that the district court consider 
the Mineral Leasing Act issues as threshold questions,

the other party” ). See also National Safe Deposit, Sav. & 
Trust Co. V. Hibbs, 229 U.S. 391, 394 (1913) ; Hill V. Flota 
Mercante Grancolombiana, S. A., 267 F. Supp. 380, 384 (E.D. 
La. 1967), aff’d, 405 F. 2d 878 (5th Cir.), cert, denied, 395
U. S. 934 (1969) ; Winehell V. Moffat County State Bank, 307 
F.2d 280, 282 (10th Cir. 1962) ; Henry v. Auchincloss, Parker 
& Redpath, 305 F.2d 753, 754 (D.C. Cir. 1962) ; James Tal­
bott, Inc. V. Associates Discount Corp., 302 F. 2d 443, 446-47 
(8 th Cir. 1962) (Blackmun, J.) ; Whitehead V. American 
Secur. & Trust Co., 285 F.2d 282, 284 (D.C. Cir. 1960) ; Ryan
V. Spaniol, 193 F.2d 551, 553 (10th Cir. 1951).

98 See p. 16 supra.



78

it was Alyeska, later joined by the other defendants 
(see, e.g., Jt. App. 153), that insisted that all is­
sues be heard together. Alyeska then filed hundreds 
of pages of printed briefs and took the major por­
tion of the oral argument in both the district court 
and the court of appeals.

In considering Alyeska’s “major and real” role in 
the litigation and the fact that Alyeska required re­
spondents “to brief and argue an issue which, because 
of their very success on the Mineral Leasing Act is­
sue, never became ripe for adjudication,” 99 the court 
of appeals, was in no sense punishing Alyeska for hav­
ing intervened in the litigation or for having vigor­
ously pursued its own interests. Rather, the court 
was simply recognizing that just as Alyeska was not 
a mere bystander in the events which led to this liti­
gation, Alyeska was not a mere bystander in the 
litigation itself.

C. Alyeska Received Direct Benefits from the Litiga­
tion and Is in a Position to Shift the Award to 
Other Beneficiaries of the Litigation

The opinion of the Fifth Circuit in Sierra Club v. 
Lynn, 502 F.2d 43 (1974), cited extensively in peti­
tioner’s, brief, highlights two additional factors that 
lend further support to the fairness of the decision to 
shift fees from respondents to Alyeska.

In Sierra Club v. Lynn, the Department of Hous­
ing and Urban Development approved federal fund­
ing for a new town to be constructed by a private 
developer astride “Edwards Aquifer, an underground 
water-bearing formation that is the sole water supply

99 Wilderness Society II, 495 F.2d at 1035.



79

for the City of San Antonio and 1,000,000 area resi­
dents.” 502 F.2d at 48. Litigation was instituted 
by private citizens alleging, among other grounds, 
that the environmental impact statement prepared by 
HUD did not comply with NEPA’s provisions in that 
it did not adequately consider the impact of the proj­
ect on the City of San Antonio and the 1,000,000 
area residents who were dependent on Edwards Aqui­
fer for their water supply. The district court subse­
quently awarded fees to plaintiffs for their litigation 
efforts that were deemed by that court to have “ad­
vanced the public interest by ensuring that adequate 
precautions would be taken to protect the aquifer.” 
Id. at 64.

In overruling that award the court of appeals em­
phasized that “none of the benefits of this litigation 
cited by the district court have inured, except in the 
abstract, to the developer.” Ibid. In the instant case 
at least some of the benefits of the litigation—i.e., 
those that protect the physical integrity of the pipe­
line—confer direct and concrete economic benefits on 
Alyeska and its principals.

Of greater relevance, however, is the conclusion of 
the Fifth Circuit that even if the developer in Sierra 
Club v. Lynn had received no concrete benefit from 
the litigation, an award of fees against it would 
have been proper if the developer were in a position 
to distribute the award among the beneficiaries of 
the action. As the court explained:

“The common benefit rationale could justify an 
award against a public agency or private entity 
which would be able to shift the costs in common 
to the members of the public, who draw their



80

water from the Edwards Aquifer. Clearly, the 
developer is not in a position to distribute the 
costs of this litigation to the one million resi­
dents of the San Antonio area who will benefit 
from the preservation of this water source.” 
(Emphasis added.) Id. at 65.

In marked contrast, Alyeska’s principals are in an 
excellent position to distribute the fee award among 
the ultimate beneficiaries of this litigation—the oil­
consuming public, whom the litigation benefitted by 
protecting the physical integrity of the pipeline, and 
the general public whom the litigation benefitted by 
protecting both the environment and “the proper 
functioning of our system of government.” Wilder­
ness Society II, 495 F.2d at 1033.100 The seven bene­
ficial owners of Alyeska do business collectively in 
49 states plus the District of Columbia and account

i°° When the court below asserted that “imposing attorneys’ 
fees on Alyeska will not serve to spread the costs of litigation 
proportionately,” Wilderness Society II, 495 F.2d at 1029, it 
did not have the benefit of the Fifth Circuit’s analysis in Sierra 
Club V. Lynn.

The factual differences between Sierra Chib v. Lynn and 
Wilderness Society II render the cases distinguishable. But 
insofar as Sierra Club V. Lynn can be construed as a holding 
that the presence of a direct legally enforceable obligation 
is an absolute prerequisite to an award of fees, it is both 
factually distinguishable from the instant case {see pp. 82-83 
infra) and is inconsistent with long-established equitable 
principles. See pp. 71-72, 76 n. 97 supra. The Fifth Circuit’s 
conclusion that it would be unfair to award fees “in the 
absence of proof that the private parties controlled the gov­
ernment agency’s action or caused its default,” 502 F.2d at 6 6 , 
may be applicable to the facts of that case. However, it is 
clearly not correct as a general proposition, as the facts of the 
instant case demonstrate. See also p. 72 n. 92 supra.



81

for over twenty percent of the national market in 
gasoline sales.101 Under the provisions of Pub. L. No. 
93-153 those companies are already obligated to “re­
imburse the United States for administrative and 
other costs incurred in processing the application,” 
Section 28(1)—including the cost of the various 
environmental undertakings by the Interior Depart­
ment which, at last estimate, exceed nine million 
dollars.102 Those costs will, of course, be distributed 
by the companies to their customers. The marginal 
increment represented by the fee award in this case 
can be similarly distributed. While Alyeska’s princi­
pals can spread the fee among their customers only 
and not among all persons who have benefitted, this 
spreading mechanism is no more imperfect than other 
mechanisms approved by this Court and numerous 
lower courts in other contexts.103

Mi 1 9 7 4  National Petroleum News Factbook 109, 111-122.
102 Supporting documents, Vol. 4, Tab 26, and Vol. 5, Tab 9 

(R. 280).
103 The imperfection of the fee-shifting mechanism in 

Sprague, where even non-beneficiaries were required to pay 
fees, is discussed at p. 37 supra. Mills is even closer to the 
present case. There the court suggested that there were two 
classes of beneficiaries, the stockholders of the corporation 
which sent out unlawful proxies and “all shareholders.” This 
Court permitted fees to be awarded against a “successor cor­
poration” whose shareholders were not coextensive with those 
in the corporation which sent out the unlawful proxies, and, 
of course, not coextensive with “all shareholders” throughout 
the country. In short, the court was willing to permit an 
award against some ultimate beneficiaries when other bene­
ficiaries were not required to pay—precisely the situation in 
the present case.

Lower courts have also adopted imperfect machanisms for 
spreading costs. See, e.g., Breiver v. Norfolk School Bd.,



82

D. The Mineral Leasing Act Imposed a Direct Legal 
Obligation on Alyeska

Respondents contend that in light of the factors 
summarized above, fees can be awarded against 
Alyeska even if no legal obligation was imposed upon 
Alyeska by the Mineral Leasing Act and NEPA. 
But to the extent that the existence of such an obli­
gation may be considered a factor in determining 
the fairness of an award of fees against a party, it 
too is present in this case. Section 28 of the Mineral 
Leasing Act explicitly provided that:

“Failure to comply with the provisions of this
section or the regulations and conditions pre-

456 F.2d 933 (4th Cir.), cert, denied, 406 U.S. 933 (1972) 
(in, a desegregation case which secured free busing for some 
students, the “only feasible solution in this particular situa­
tion” was to shift fees to the school board, and ultimately 
to all taxpayers contributing to the school board’s funds, even 
though the only beneficiaries were those children receiving 
free school busing) ; Callahan V. Wallace, 466 F.2d 59 (5th 
Cir. 1972) (in a case forbidding justices of the peace from 
trying traffic cases in which they have a pecuniary interest, 
fees were shifted to the state, and ultimately to all taxpay­
ers, even though the only beneficiaries were certain driving 
members of the public) ; Newman V. Alabama, 349 F. Supp. 
278 (M.D. Ala. 1972) (in a prisoner rights case, fees shifted 
to state, and ultimately to all taxpayers, even though the only 
beneficiaries were state prison inmates) ; Sims v. Amos, 340 
F. Supp. 691 (M.D. Ala.), aff’d, 409 U.S. 942 (1972) (in a 
reapportionment case, fees shifted to state, and ultimately to 
all taxpayers, even though beneficiaries were only those voters 
previously underrepresented in the legislature) ; NAACP  V. 
Allen, 340 F. Supp. 703 (M.D. Ala. 1972), aff’d, 493 F.2d 614 
(5th Cir. 1974) (in an employment discrimination case, fees 
shifted to state, and ultimately to all taxpayers, even though 
the only direct beneficiaries were black applicants to the 
state police force).



83

scribed by the Secretary of the Interior shall be 
ground for forfeiture of the grant by the United 
States District Court for the District in which 
the property, or some part thereof, is located in 
an appropriate proceeding.” (Emphasis added).

Thus, on the face of the statute, compliance with 
the provisions of the Mineral Leasing Act, including 
its width limitations, was not merely an obligation 
of the Secretary’s. Such compliance could be enforced 
directly against Alyeska by an action taken to forfeit 
any grant that might be issued which did not “com­
ply with the provisions of this section.” 104

E. The Award of Fees Works No Hardship on Alyeska
The court of appeals also properly considered 

whether an award against Alyeska would deter 
Alyeska or others similarly situated from pursuing 
their interests in court. Wilderness Society II, 495 
F.2d at 1032, 1036. It was for this limited purpose 
only that the court examined the financial stake of 
Alyeska and its principals in the litigation.105

The Supreme Court employed a similar approach 
in Hall v. Cole. There petitioners contended that “the

104 Compare Denver Petroleum Corp. V. Shell Oil Corp., 306
F. Supp. 289, 303 (D. Colo. 1969) which construed the com­
mon carrier provision of Section 28. (“No administrative 
office or agency is entitled to exempt crude oil pipelines from 
the provisions of Section 28 of the Mineral Leasing Act.”).

106 There is thus no basis for the suggestion that the real 
premise of the court’s opinion is “oil companies are prosper­
ous, [respondents] are poor, and therefore the oil companies 
should finance both sides of this litigation.” Wilderness So­
ciety II, 495 F.2d at 1042 (MacKinnon, J., dissenting), quoted 
at P. Br. 9. And the court’s conclusion that Alyeska would 
not be deterred by an award of fees was obviously correct.



84

payment of counsel fees out of the union treasury 
might deplete union funds to such an extent as to 
impair the union’s ability to operate as an effective 
collective bargaining agent and to endanger union 
stability.” 412 U.S. at 9 n.13. The Court agreed 
that “this consideration is undoubtedly an important 
one.” The Court stated, however, that it is “relevant, 
not to the power of federal courts to award counsel 
fees generally, but, rather, to the exercise of the 
District Court’s discretion on a case-by-case basis.” 
Ibid. (Emphasis in original.) Then, the Supreme 
Court, like the court of appeals here, looked at the 
specific facts of the case and concluded that “peti­
tioners do not, and indeed cannot, contend that the 
award of only $5,000 would in any sense jeopardize 
union stability.” 412 U.S. at 15 n.23.

F. Alyeska Was Not Prejudiced by the Lack of an 
Award Against the Other Defendants

Respondents in the court of appeals sought to re­
cover attorneys’ fees only from Alyeska and not from 
the State of Alaska or the Federal Government. The 
court of appeals taxed only Alyeska, but limited its 
award against Alyeska to one half of the fees re­
quested. The court’s decision was clearly within its 
equitable discretion and did not prejudice Alyeska.

The court concluded that it was “inappropriate” to 
tax the State of Alaska. The court’s distinction be­
tween the State of Alaska and Alyeska is eminently 
sound. Unlike Alyeska, the State of Alaska did not 
initiate the project at issue, did not play a major role 
in the litigation and, following the analysis of Sierra 
Club v. Lynn, could not shift the cost of the litiga-



85

tion to a substantial number of those who benefitted 
from the litigation.

The court of appeals found that 28 U.S.C. § 2412
barred a fee award against the Federal Government. 
Accordingly, it concluded:

“In recognition of the Government’s role in the 
case . . . Alyeska should have to bear only half 
of the total fees. The other half is properly al­
located to the Government and, because of the 
statutory bar, must be assumed by appellants. 
In this manner the equitable principle that ap­
pellees bear their fair share of this litigation’s 
full costs and the congressional policy that the 
United States not be taxable for fees can be 
accommodated.” Wilderness Society II, 495 F.2d 
at 1036.

Alyeska argues that if fees are barred against the 
Government, a fortiori they are barred against 
Alyeska. P. Br. 23. But for the reasons advanced
above there is nothing a fortiori about it. Moreover, 
Alyeska’s argument overlooks the holdings of this 
Court that a congressional statute does not bar at­
torneys’ fees unless it “meticulously detail [s] the 
remedies available to a plaintiff” 106 or otherwise evi­
dences a “purpose to circumscribe the court’s power 
to grant appropriate remedies.” 107 The general lan­
guage of Section 2412 is simply not specific enough 
to deny a court of equity the power to award fees 
to respondents in this case since the comprehensive­
ness of:

108 Hall V. Cole, 412 U.S. a t  9-10, quoting Fleischmann Dis­
tilling Corp. V. Maier Brewing Co., 386 U.S. a t  719.

107 Mills V. Electric Auto-Lite Co., 396 U.S. a t  391.



86

“ [Ejquitable jurisdiction is not to be denied or 
limited in the absence of a clear and valid legis­
lative command. Unless a statute in so many 
words, or by a necessary and inescapable infer­
ence, restricts the court’s jurisdiction in equity, 
the full scope of that jurisdiction is to be recog­
nized and applied.” 108

Respondents do not challenge the court’s decision 
to shift only half of the fees in issue to Alyeska. 
But respondents submit that in light of the factors 
described above, it would have been equitable for 
the court to have taxed the entire award against 
Alyeska. Indeed, it would have been equitable for 
the court to have shifted the entire award to Alyeska 
even if it found no statutory bar against shifting a 
portion of respondents’ fees to the Federal Govern­
ment. For, as noted above, there is a strong con­
gressional policy—specifically reaffirmed in Pub. L. 
No. 93-153—in favor of requiring the applicant 
rather than the Government to pay the transaction 
costs involved in obtaining pipeline rights-of-way.

In short, by shifting to Alyeska only half the fees 
in issue, the court of appeals bent over backwards 
to assure that Alyeska was not prejudiced by the 
absence of any award against the Government. This 
exercise of the court’s equitable discretion is further 
evidence of the court’s judicious effort to fashion 
an equitable fee shifting mechanism that would not 
be unfair to Alyeska.

108 Porter V. Warner Holding Co., 328 U.S. 395, 398 (1946).



87

IV. ALYESKA’S OTHER ARGUMENTS AGAINST THE 
AWARD OF FEES IN THIS CASE LACK MERIT.

Alyeska’s Brief contains a number of other argu­
ments against the award of attorneys’ fees in this 
case. These arguments are refuted by the facts of 
this case and by judicial precedent.

A. Alyeska’s Arguments About “Success” Do Not 
Apply To The Facts Of This Case And Do Not 
Provide A Useful Guide For Other Cases

Alyeska argues that fees should not be awarded 
to a party unless it “successfully litigates” the issue 
to a formal victory.109 The inappropriateness of the 
rigid “success” requirement that Alyeska would im­
pose on the equitable power to award fees is illus­
trated by the facts of this case. In every sense of 
the word, respondents were the successful party in 
Wilderness Society I. Through its decision on the 
Mineral Leasing Act issues, the court of appeals en­
joined construction of the pipeline, thereby grant­
ing respondents all the relief that they sought and, 
indeed, all the relief that a court properly could 
have granted.

Respondents neither “won” nor “lost” on the NEPA
issues, which never became ripe for adjudication be­
cause of respondents’ “very success on the Mineral 
Leasing Act issues.” 110 However, for at least three 
reasons it was appropriate for the court to award 
fees to respondents for their work on these non-

109 See P. Br. 33 et seq.
110 Wilderness Society II, 495 F.2d at 1035. Alyeska’s sug­

gestion that it “prevailed” on the NEPA issues is inexplicable. 
P. Br. 33.



88
“winning” issues. First, the NEPA issues were 
briefed and argued because Alyeska insisted that 
they were necessary for an informed decision on the 
Mineral Leasing Act issues. See pp. 19-20 supra. 
Second, the exposition of the MEPA issues was found 
by the court of appeals to be helpful for an informed 
decision on the Mineral Leasing Act issues. Wilder­
ness Society II, 495 F.2d at 1035. Third, respond­
ents’ litigation effectuated the policies of NEPA by 
forcing both government and industry to pay careful 
attention to the pipeline’s environmental and tech­
nological hazards and thereby to reduce the project’s 
risks. See pp. 45-50 supra.

More generally, Alyeska’s formalistic “success” rule 
would impose on the equitable power of federal courts 
an artificial standard that ignores the realities of 
litigation.111 As the Court recognized in Sprague,

111 As the court of appeals for the District of Columbia 
Circuit has asserted in another context:

“As all lawyers know, a lawsuit does not always have 
to go to final adjudication on the merits in order to be 
effective. Assuming- the effectiveness in terms of practical 
results, the litigation stage attained is relevant only to 
the amount of the fees to be allowed, and not to the is­
sue of whether they should be awarded at all.” Yablonski 
V. United Mine Workers of America, 466 F.2d 424, 431 
(1972), cert, denied, 412 U.S. 918 (1973).

See also Fairley V. Patterson, 493 F.2d 598, 604 (5th Cir. 
1974) (to require formal victory “would be to ignore the 
reality of this litigation”) ; cf. Mills V. Electric Auto-Lite Co., 
396 U.S. at 396 (the advancement of important legislative 
policy justifying a fee award can be accomplished even where 
a party does not obtain the ultimate relief sought by the fil­
ing and prosecution of the suit).

In the analogous area of costs, the “prevailing party” nor­
mally recovers costs on all litigated issues as a matter of



89

“the formalities of . . . litigation . . . hardly touch 
the power of equity in doing justice.” 307 U.S. at 
167. In civil rights cases, in particular, lower courts 
have recognized that non-“winning” plaintiffs can 
make significant contributions to the enforcement 
of the law.112 These courts have, accordingly, awarded 
fees in a variety of cases that would violate the 
Alyeska success formula.113

course. See, e.g., U.S. Sup. Ct. R. 57 (1970) ; 28 U.S.C. § 2412; 
Fed. R. Civ. P. 54(d); Esso Standard, (Libya), Inc. V. S.S. 
Wisconsin, 54 F.R.D. 26, 27 (S.D. Tex. 1971). There is no 
requirement that the party prevail on each and every issue. 
See, e.g., Mashak V. Hacken, 303 F.2d 526, 527 (7th Cir. 
1962); Howerton V. Mississippi County, 361 F. Supp. 356, 
360 n.2 (E.D. Ark. 1973) ; Oster V. Rubinstein, 142 F. Supp. 
620, 621 (S.D.N.Y. 1956) ; 6 Moore’s Federal Practice If 54.70 
[4] at 1306 (1972). Indeed, costs are awarded to “prevailing 
parties” even for issues on which they lose. See, e.g., Hines 
V. Perez, 242 F.2d 459, 466 (9th Cir. 1957) ; Best Medium 
Pub. Co. V, Nat’s Insider, Inc., 385 F.2d 384, 386 (7th Cir. 
1967), cert, denied, 390 U.S. 955 (1968) ; Lewis V. Pennington, 
400 F.2d 806, 820 (6 th Cir.), cert, denied, 393 U.S. 983 
(1968). And there is clear precedent in the cost area for 
awarding costs against the party responsible for the liti­
gation of issues that need not be adjudicated for a resolution 
of the case. See, e.g., Textile Workers Union V. American 
Thread Co., 271 F.2d 277, 278 (4th Cir. 1959) ; Switzer Bros., 
Inc. V. Chicago Cardboard Co., 252 F.2d 407, 412 (7th Cir. 
1958) ; Esso Standard (Libya), Inc. v. S.S. Wisconsin, supra, 
54 F.R.D. at 27; Davy V. Faucher, 84 F. Supp. 737, 738 (N.D. 
Fla. 1949).

112 Indeed, courts encourage parties to take steps which 
eliminate the need for formal adjudication.

113 Many of these cases are collected in the Amicus Curiae 
brief that the Lawyers’ Committee for Civil Rights Under 
Law has filed in this case. As demonstrated by the cases col­
lected in the Lawyers’ Committee brief, lower courts have 
awarded fees in civil rights cases where plaintiffs have won



90

A similar need for flexibility exists in environ­
mental cases. Indeed, in recognition of the fact that 
environmental litigation often produces benefits with­
out a formal court victory, Congress has specifically 
provided that a plaintiff may be awarded attorneys’ 
fees under the Clean Air and the Federal Water 
Pollution Control Act Amendments supra, without 
achieving any formal “win.” As stated in the Senate 
reports accompanying the pertinent Amendments to 
both of these Acts, fee awards to non-“winning” plain­
tiffs may be appropriate:

“. . . in actions which result in successful abate­
ment but do not reach a verdict. For instance, 
if as a result of a citizen proceeding and before 
a verdict is issued, a defendant abated a viola­
tion, the court may award litigation expenses 
borne by the plaintiffs in prosecuting such ac­
tions.” 114

only some of the relief they sought, e.g., Clark V. Board of 
Educ. of Little Rock School Dist., 449 F.2d 493 (8 th Cir. 
1971) (en banc), cert, denied, 405 U.S. 936 (1972) ; Thomas 
V. Honeybrook Mines, Inc., 428 F.2d 981 (3d Cir. 1970), cert, 
denied, 401 U.S. 911 (1971) ; where defendants have changed 
the challenged practice without a formal adjudication of the 
claim or the suit has otherwise served as a catalyst for 
change, e.g., Parham V. Southwestern Bell Tel. Co., 433 F.2d 
421 (8 th Cir. 1970) ; Hammond V. Housing Authority Urban 
Renewal Agency, 328 F. Supp. 586 (D. Ore. 1971) ; and where 
the case has been settled, in one way or another, without an 
adjudication of liability, e.g., Blumenthal V. Lee Memorial 
Hospital, No. H-70-C-5 (E.D. Ark., August 6, 1971) ; Webb V. 
Baxley, No. 3564-N (M.D. Ala., Jan. 18, 1973).

114 S. Rep. No. 91-1196, 91st Cong., 2d Sess. 38 (1970) 
(Clean Air Amendments of 1970) ; S. Rep. No. 92-414, 92d 
Cong., 1st Sess. 81 (1971) (Federal Water Pollution Control 
Act Amendments of 1972).



91

Thus, the appropriate standard should be the one 
followed by the court below and recently adopted by 
the First Circuit, which rejected the rule Alyeska 
now proposes for the following reasons:

“We are at liberty to consider not merely ‘who 
won’, but what benefits were conferred. The 
purpose of an award of costs is not mainly puni­
tive. It is to allocate the costs of litigation 
equitably, to encourage the achievement of statu­
tory goals.” 1:16

Alyeska does not cite a single authority for the con­
trary position that it now asks this Court to adopt.

B. Alyeska’s Objections to Fee Awards for Salaried 
Attorneys Lack Merit

Alyeska argues that no fees should be awarded in
this case because respondents exist to preserve en­
vironmental values and their attorneys were salaried 
employees of organizations formed to provide groups 
such as respondents with litigation assistance. P. 
Br. 43-45. But Congress, this Court, and the lower 
courts have frequently authorized fee awards to 
lawyers who are salaried employees of such organiza­
tions, and Alyeska offers no persuasive reasons for 
departing from this settled practice now.

At the time Congress enacted the attorneys’ fees 
provisions of the Civil Rights Act of 1964, § 204(b),

115 Natural Resources Defense Council V. EPA, 484 F.2d 
1331, 1338 (1st Cir. 1973). Accord, e.g., McEnteggart V. 
Cataldo, 451 F.2d 1109 (1st Cir. 1971), cert, denied, 408 U.S. 
943 (1972) ; Blau V. Rayette-Faberge, Inc., 389 F.2d 469 (2d 
Cir. 1968) ; Lindy Bros. Builders, Inc. V. American Radiator 
& Standard Sanitary Corp., 487 F.2d 161 (Bd Cir. 1973).



92

42 U.S.C. § 2000a-8(b), and subsequent civil rights 
legislation, many of the leading civil rights cases 
were being brought by the salaried attorneys of such 
organizations as the NAACP Legal Defense and 
Educational Fund.116 Similarly, at the time Congress 
passed the attorneys’ fees provision of the Clean Air 
and Federal Water Pollution Control Act Amend­
ments, supra, many of the leading environmental 
cases were being brought by organizations such as 
respondents.117 There is not a single indication that 
Congress wished to bar fee awards to salaried at­
torneys of such civil rights and environmental or­
ganizations or to treat them differently from other 
attorneys.

Nor has this Court ever suggested that salaried 
attorneys of non-profit organizations are ineligible for 
fee awards. Indeed, the case in which this Court 
firmly established the right of attorneys to obtain 
fees under the 1964 Civil Rights Act, Newman v. 
Piggie Park Enterprises, Inc., supra, was brought by 
salaried attorneys of the NAACP Legal Defense

116 Prior to 1964, virtually every major civil rights case was 
litigated principally by salaried attorneys of a national or­
ganization. See, e.g., Shelley V. Kraemer, 334 U.S. 1 (1948) ; 
Sweatt v. Painter, 339 U.S. 629 (1950) ; Brown V. Board of 
Educ., 347 U.S. 483 (1954) ; Gomillion V. Lightfoot, 364 U.S. 
339 (1960).

117 Among the well-known environmental cases undertaken 
prior to Congress’ enactment of the attorneys’ fee provision of 
the Clean Air Act on December 31, 1970, were Environmental 
Defense Fund V. Hardin, 428 F.2d 1093 (D.C. Cir. 1970) ; 
D.C. Fed’n of Civic Ass’ns, Inc. V. Volpe, 434 F.2d 536 (D.C. 
Cir. 1970) ; Scenic Hudson Preserv. Conf. v. PFC, 354 F.2d 
608 (2d Cir. 1965), cert, denied, 384 U.S. 941 (1966).



93

and Educational Fund. This Court has also upheld 
fee awards to Fund attorneys in Northcross v. Mem­
phis Board of Education and Bradley v. Richmond 
School Board, supra.

Once it is determined that a fee award is proper 
under the court’s equity power, there is no basis for 
distinguishing between statutory and non-statutory 
cases in awarding fees to salaried attorneys of non­
profit organizations. And, in fact, lower federal 
courts have awarded fees to salaried attorneys of 
such organizations in a wide range of civil rights and 
poverty law cases where fees were not authorized by 
statute.118

118 See, e.g., Fairley V. Patterson, 493 F.2d 598 (5th Cir.
1974) ; Lee V. Southern Home Sites Cory., 444 F.2d 143 (5th
Cir. 1971). In Brandenhurger V. Thompson, 494 F.2d 885, 889
(1974), the Ninth Circuit recently asserted:

“It is true that the prospect of attorneys’ fees does not 
discourage the litigant from bringing a suit when legal 
representation is provided without charge. But the entity 
providing the free legal services will be so discouraged, 
and an award of attorneys’ fees encourages it to bring 
public-minded suits when so requested by litigants who 
are unable to pay. Thus, an award of attorneys’ fees 
to the organizations providing free legal services indi­
rectly serves the same purpose as an award directly to a 
fee paying litigant.”

In Hoitt V. Vitek, 495 F.2d 219, 221 (1974), the First Circuit
explained:

“None of the legitimate reasons for the exercise of the 
court’s equitable discretion turns on the nature of an 
individual attorney’s normal means of reimbursement. 
These grounds for fee awards look to the past behavior 
of the parties and toward encouraging legal representa­
tives in similar situations in the future. If the sole rep-



94
The reason that Congress and the courts have 

failed to seize upon the distinction suggested by 
Alyeska is obvious. A basic premise of fee awards, 
as Newman and Hall recognize, is that, despite the 
long tradition of the bar in providing legal services 
to the needy, litigation effectuating public policies 
cannot depend upon the charity of the private bar. 
Certainly, then, such litigation cannot depend upon 
the charity of lay donors who pay the salaries of the 
attorneys for non-profit organizations.119

The budgets of respondents and the Center for 
Law and Social Policy are similar to those of the

resentatives of the plaintiffs below had been [New 
Hampshire Legal Assistance] and the district judge had 
reasoned, as he did, that the suit merited award under 
the “private attorney general” theory, we would find it 
difficult to discern the advancement of any legitimate 
policy by the denial of fees to NHLA.”

iis> ]gor should individuals and citizen groups with legiti­
mate need for access to the courts be totally subject to the 
vageries of foundation policies and portfolios. The Ford Foun­
dation, for example, has announced that it will reduce its 
grants by over 50% over the next four years as a result of 
the stock market decline. N. Y. Times, Dec. 15, 1974, p. 1, 
col. 5.

In La Raza Unida V. Vol-pe, 57 F.R.D. at 98 n.6 , the court 
concluded:

“The fact that attorneys in this action, Public Advo­
cates, Inc., require no fees from their clients or that 
they receive tax-exempt foundation money is not germane 
to their status as private attorneys general. See Miller 
V. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 
1970). We cannot presume Congress intended to rely on 
tax-exempt foundations to fund costs of litigation in or­
der to effectuate its policies, nor that such funding will 
continue in the future.”



95
leading civil rights organizations.120 Their primary 
sources of funding—charitable contributions from 
foundations or private individuals—are similar and 
in many instances identical to those of civil rights 
organizations.121 Their attorneys should be as eligible 
to obtain fee awards as the attorneys in Newman, 
Bradley, and Lee v. Southern Home Sites, supra.1'12

120 The annual operating budget of the NAACP Legal De­
fense and Educational Fund is $4.4 million. Legal Defense 
Fund: A Report to the American People 15 (1974). The 
annual operating budget of the Lawyers’ Committee for Civil 
Rights Under Law is $1.9 million. Ten-Year Report: Law­
yers’ Committee for Civil Rights Under Law 116 (1973). 
The annual operating budget of The Wilderness Society, the 
largest of the respondent organizations, is $1.6 million. The 
Wilderness Society: The Directors’ Annual Report 6  (1974). 
The annual operating budget of the Center for Law and 
Social Policy, which provided most of the legal manpower for 
this litigation, is $600,000.

121 The Ford Foundation, for example, is the primary fund­
er of the Center for Law and Social Policy and a major 
funder of respondent Environmental Defense Fund, the 
NAACP Legal Defense and Educational Fund and the Law­
yers’ Committee for Civil Rights Under Law. See Ford 
Foundation: Annual Report 10, 20-21, 36, 38-39, 69 (1973). 
The Rockefeller Brothers Fund is an important funder of 
the Center for Law and Social Policy, the NAACP Legal 
Defense and Educational Fund and the Lawyers’ Committee 
for Civil Rights Under Law. See Rockefeller Brothers Fund: 
Annual Report 27, 46, 51 (1973).

122 Alyeska did not raise below, and does not press here, 
the argument of the dissenting j udges below that respondents’ 
attorneys should receive no fee award because, in connection 
with a Motion to Change Venue (R. 67, 70, 75), they stated 
that they were representing respondents without fee. See P. 
Br. 44 n. 36; Wilderness Society II, 495 F.2d at 1044-46 (dis­
senting opinion). This point is adequately covered in Wil­
derness Society II, 495 F.2d at 1037 n.9.



96

C. In Making Its Award Of Fees In This Case The 
Court Of Appeals Relied On Judicially Manageable 
Factors

Alyeska suggests that the factors relied on by the 
court of appeals in this case cannot be properly 
evaluated by courts. This suggestion is, of course, 
refuted by the facts of this case, where the statutory 
interests involved were clearly important, where the 
benefits of the litigation are readily assessed, and 
where the burdens of a uniquely massive lawsuit 
are readily apparent. It is refuted as well by the 
actual experience of courts which have traditionally 
applied similar factors.

Courts frequently determine whether statutory in­
terests are sufficiently important to justify the in­
vocation of equitable remedies. Courts make this 
determination in common benefit attorneys’ fees 
cases,123 in cases implying a private right of action, 
and in cases implying a right to compensatory dam­
ages where the statute failed to provide any. See 
pp. 61-62 supra.1'24 They are capable of making a

123 See, e.g., Mills V. Electric Auto-Lite Co., 396 U.S. at 396 
(“the stress placed by Congress on the importance of fair 
and informed corporate sufferage”) ; Hall v. Cole, 412 U.S. 
at 8  (“the rights enumerated in Title I were deemed ‘vital’ ” ).

124 Courts routinely assess the importance of statutory poli­
cies in a variety of other contexts involving the availability 
of equitable relief. See, e.g., Boys Markets, Inc. V. Retail 
Clerks, Local 770, 398 U.S. 235, 252 (1970), discussing 
Brotherhood of R.R. Trainmen V. Chicago River & Ind. R.R., 
353 U.S. 30 (1957) (equitable relief available because “an 
important federal policy was involved in the peaceful settle­
ment of disputes through the statutorily mandated arbitra­
tion procedure” ) ; Gateway Coal Co. v. United Mine Work-



97

similar determination in cases such as the present 
one.

Alyeska’s speculation that the courts cannot evalu­
ate the benefits conferred in a case where plaintiff 
does not technically “win” is refuted by the actual 
working experience of the lower courts. See pp. 
88-90 supra. In addition, in common benefit cases 
this Court has experienced no difficulty determining 
that “others” benefited without determining that 
“others” have a legally winnable claim. E.g., Hall 
v. Cole, supra. Finally, Congress has recognized the 
courts’ competence in this area by expressly pro­
viding that attorneys’ fees can be awarded to non­
prevailing parties. See Clean Air and Federal Water 
Pollution Control Act Amendments, supra.

Courts are also uniquely well-equipped to evaluate 
economic obstacles and the need for fee shifting on a 
case-by-case basis. The extent of the economic ob­
stacles depends on the cost of the litigation and the 
possibility of economic benefit to the plaintiffs. The 
greater the cost of the litigation, the less likely it 
will be undertaken by plaintiffs who have no hope 
of economic benefit. Courts see first-hand the com­
plexity, and hence costliness, of the specific case. 
And courts, through their knowledge of the nature

ers, 414 U.S. 368, 382 (1974) (equitable relief available be­
cause of “strong federal policy favoring arbitration of labor 
disputes” ) ; Bradley V. Richmond School Bd., 416 U.S. a t  717 
(1974) (application of existing law depends on nature of the 
parties and nature of the right), following United States V. 
Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801) (“in 
great national concerns . . . the court must decide according to  
existing law”).



98

of the plaintiffs and the relief sought, can readily 
evaluate the possibility of economic benefit to the 
plaintiffs.

D. A Fee Award In This Case Will Not Lead To 
Frivolous Litigation

There is no basis for Alyeska’s suggestion that the 
fee award in this case will encourage frivolous liti­
gation. P. Br. 34. The fee award here rests upon 
the equities of a particular case—-certainly one of 
the most important and complex environmental cases 
ever undertaken. The factors which supported a fee 
award here can provide frivolous litigants absolutely 
no encouragement whatsoever. For such litigants, 
the expense of litigation will remain a substantial if 
not overriding obstacle—as it should. See Office of 
Communications of United Church of Christ v. FCC, 
359 F.2d 994, 1006 (D.C. Cir. 1966).

After this case, as before, equitable fee awards 
will be available only in exceptional lawsuits where, 
overriding considerations make a fee award appro­
priate. As Justice Blackmun said in another con­
text: “We need not fear that Pandora’s box will be 
opened or that there will be no limit to the number 
of those who desire to participate in environmental 
litigation. The courts will exercise appropriate re­
straints just as they have exercised them in the past.” 
Sierra Club v. Morton, supra, 405 U.S. at 758 (1972) 
(dissenting opinion). These words echo those of Mr. 
Justice Bradley almost a hundred years ago in the 
first Supreme Court case to consider the appropriate­
ness of fee awards in “common fund” cases. An­
swering the argument that such awards would prove 
to be “excessive” in practice, Justice Bradley said:



99

“ [A] just respect for the eminent judges under
whose direction many of these cases have been 
administered would lead to the conclusion that 
allowances of this kind, if made with moderation 
and a jealous regard to the rights of those who 
are interested . . . are not only admissible, but 
agreeable to the principles of equity and jus­
tice.” Trustees v. Greenough, supra, 105 U.S. 
at 536-37.

A similar confidence in the federal judiciary is justi­
fied today.

E. The Fee Award Need Not Be Limited To The 
Salaries Earned By The Attorneys Involved

Alyeska also argues that any fees awarded in this 
case should be limited to the salaries earned by the 
attorneys involved. The court of appeals, on the other 
hand, stated that the “fee should represent the rea­
sonable value of the services rendered, taking into 
account all the surrounding circumstances . . . .” Wil­
derness Society II, 495 F.2d at 1036. The court sug­
gested several criteria which, in its view, should 
guide a determination of the size of the award.1125 
The flexible position adopted by the court of appeals 
is undoubtedly sound.

125 The criteria set forth by the court were as follows:
“The fee should represent the reasonable value of the 
services rendered, taking into account all the surround­
ing circumstances, including, but not limited to, the time 
and labor required on the case, the benefit to the public, 
the skill demanded by the novelty or complexity of the 
issues, and the incentive factor.” Id. at 1036.

In this regard, the criteria listed in the court’s opinion re­
flect the American Bar Association’s Code of Professional 
Responsibility D.R. 2-106.



100

Alyeska seems to contend that an “unsalaried” at­
torney is entitled to a reasonable attorney’s fee, tak­
ing into account all the circumstances of the case, 
while a salaried attorney presumptively is not. P. Br. 
43. But as the court of appeals noted, “it may well 
be that counsel serve organizations like [respondents] 
for compensation below that obtainable in the market. 
. . . Litigation of this sort should not have to rely 
on the charity of counsel any more than it should 
rely on the charity of parties. . . .” Wilderness So- 
ciety II, 495 F.2d at 1037. It is quite possible that 
the salaried attorney of an environmental or civil 
rights organization is making a greater financial 
sacrifice than the lawyer in private practice who 
takes on a single pro bono case.

Under Alyeska’s reasoning the poorer the organiza­
tion and the lower the salaries it can pay its attor­
neys, the smaller the attorneys’ fees award, regard­
less of the extent and novelty of the litigation effort 
or the benefits conferred. Quite simply, that is un­
fair. There is no reason an award should be lower 
because an attorney is willing to work for a below- 
market salary.

Alyeska argues that “payment of a bonus to re­
spondents’ counsel on the theory that they have ‘vin­
dicated’ a public policy in this case merely subsidizes 
other litigation which may or may not vindicate such 
a policy.” P. Br. 45. But courts never control how 
an attorney spends his fee award. The attorney may 
use it to support his practice, or for personal or char­
itable purposes. The only difference in the instant 
case is that the court has awarded fees to attorneys 
who, like the salaried attorneys of the NAACP



101

Legal Defense and Educational Fund, are committed 
to contributing the fees they receive to their organi­
zations. These organizations will use the funds in a 
manner consistent with their non-profit charitable 
status and public interest objectives.

Finally, it is obvious that the mere reimbursement 
of salaries would not compensate the organizations 
which employ the attorneys for such related expenses 
as secretarial assistance and overhead. These related 
expenses are traditionally included in an attorney’s 
fee and should be included here.

In sum, the court of appeals’ flexible approach, 
which has been adopted in numerous other cases,126 
was correct and should not be disturbed by this Court.

126 See, e.g., Fairley v. Patterson, supra, 493 F.2d at 606:
“The [district] court’s verbalized reason for denying 
expenses and limiting attorneys’ fees for the ‘much 
greater service’ performed by the original plaintiffs than 
the intervener, is the fact that the funds would flow 
into ‘the coffers of the Ford Foundation.’ This is an im­
permissible rationale to use in determining the amount of 
attorneys’ fees and expenses. This Court has indicated 
on several occasions that allowable fees and expenses 
may not be reduced because appellants’ attorney was 
employed or funded by a civil rights organization and/or 
tax-exempt foundation or because the attorney does not 
exact a fee.” (Footnotes omitted).

See also Clark V. American Marine Corp., 320 F. Supp. 709 
(E.D. La. 1970), aff’d, 437 F.2d 959 (5th Cir. 1971) ; Miller 
V. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 
1970).



102

CONCLUSION

For the foregoing reasons, the judgment of the 
court of appeals authorizing an award of attorneys’ 
fees to respondents should be affirmed by this Court.

Respectfully submitted,

Dennis  M. F lannery 
1666 K  S tree t, N.W . 
W ashington , D.C. 20006

Of C ounsel:
J ohn F. Dienelt

1101 17th S tree t, N.W . 
W ashington , D.C. 20036

T homas B. Stoel, J r . 
1710 N  S tree t, N.W . 
W ashington , D.C. 20036

P aul Gewirtz 
J oseph Onek

C enter fo r  Law  and Social Policy 
1751 N  S tree t, N.W .
W ashington , D.C. 20036

Attorneys for Respondents,
The Wilderness Society, 
Environmental Defense Fund, 
Inc., and Friends of the Earth.

D ecem ber 30 ,1974



APPENDICES



la

APPENDIX A

DESCRIPTION OF THE TRANS-ALASKA 
PIPELINE SYSTEM *

A. The Proposed Project
The proposed Trans-Alaska pipeline would be the 

“most complex,” “most costly,” and “most ecologically 
sensitive” project ever undertaken (P. Docs. Ill, Tab B, 
p. 4). Its purpose is to transport oil from Prudhoe Bay 
on Alaska’s North Slope to the Port of Valdez at Prince 
William Sound in southern Alaska. In order to construct 
the pipeline it will be necessary to build a road from 
Livengood to the North Slope to transport construction 
materials and personnel. Various other facilities, includ­
ing air fields, pumping stations, and communication sites 
will also be required for construction and operation of 
the pipeline. From Valdez, the oil will be loaded onto 
tankers for marine transport to destinations on the west 
coast of the United States and possibly elsewhere (FIS, 
Vol 1, pp. 1-2).

The North Slope oil fields also contain significant quan­
tities of natural gas (FIS, Vol. 4, p. 69). Much of the 
gas will be produced, simultaneously with the oil and, 
indeed, must be produced if the oil is to be produced 
(FIS, Vol. 1, p. 57). “It seems clear that a single gas 
line will be built through Canada to the United States 
markets” (ESA, Vol. I, p. C-22). Such a gas transpor­
tation system is an essential requirement of any oil pipe­
line system (FIS, Vol. 1, p. 50, 57).

* T h is descrip tion  is taken  verba tim  from  th e  B rie f  on N ational 
E nv ironm ental Policy A ct Issues filed below by The W ilderness 
Society, E nv ironm ental D efense Fund , Inc., and F rie n d s  of the  
E a r th .



2a

1. Terrestrial Impact of the Proposed Oil Pipeline
The Trans-Alaska oil pipeline would cut a swath across 

the entire length of Alaska. On its 789-mile journey, 
the proposed pipeline would cross some 641 miles of 
federal lands (FIS, Vol. 1, p. 1); transect the four major 
physiographic divisions of Alaska—the Interior Plains 
(the Arctic Slope), Rocky Mountain System (the Brooks 
Range), Intermontane Plateaus, and Pacific Mountain 
System (Alaska and Chugach Ranges) (FIS, Vol. 2, p. 
13—and four primary river basins—those of the Saga- 
vanirktok, Yukon, Copper, and Lowe Rivers—whose un­
polluted waters constitute a vast wilderness primarily 
used for hunting, fishing, trapping, and recreation (FIS, 
Vol. 2, p. 76).

a. Wilderness and Recreation Areas
“Outside the cities of Anchorage and Fairbanks, the 

coastal towns and their interconnecting transportation 
routes are great expanses of wilderness” (FIS, Vol. 2, 
pp. 213-214). The pipeline would “divide” “into two” 
the “largest wilderness area in the United States,” which 
extends from, the Arctic Ocean to the Yukon River (FIS, 
Vol. 1, p. 151). The bleak Arctic Slope and the Brooks 
Range support a kingdom of wildlife including caribou, 
mountain sheep, moose, muskoxen, grizzly and polar bears, 
wolf, coyote, wolverine, fox, lynx, marten, mink, otter, 
weasel, and various rodents (FIS, Vol. 2, p. 175). And 
the wilderness south of the Brooks Range includes many 
of the same species in even greater densities (FIS, Vol. 
2, pp, 184-186).

The associated 361-mile road from Livengood to the 
North Slope will open this heretofore unblemished wilder­
ness, resulting in increased hunting pressures that will 
threaten the populations of grizzly and brown bear, polar 
bear, and mountain sheep (FIS, Vol. 4, pp. 164-165) ;



3a

increased forest fires that will destroy forage for caribou 
and mountain sheep (FIS, Vol. 4, p. 109) ; and rapid 
deterioration of the “spectacular fishing quality” of 
northern streams (FIS, Vol. 4, p. 138). The route of 
this road “was chosen mainly to meet engineering re­
quirements and to facilitate construction and servicing 
of the pipeline. . . . [PJublic interest . . . was not a 
consideration in planning the layout of the road. . . . 
Large mammal resource values would be better protected 
. . . if . . . animal movements, hunter access and wild­
life viewing had been taken into consideration. . . .” 
(FIS, Vol. 4, p. 39).

The pipeline would cross the Yukon River, which 
dwarfs all others in Alaska with a drainage area of 
330,000 square miles, one-third of which is in Canada 
(FIS, Vol. 2, p. 155). The chinook, chum, and coho 
salmon in the Yukon which migrate as far as 2,000 miles 
to the headwaters to spawn represent unique and irre­
placeable races of their species. Other fish found in the 
Yukon River basin include grayling, seulpin, sucker, 
whitefish, trout, northern pike, burbot, and inconnu (FIS, 
Vol. 2, pp. 155-156).

South of the Yukon River the pipeline will intrude on 
some of the most popular recreational areas in Alaska, 
including the Copper River System, the most important 
salmon water in central Alaska. About 40 million sock- 
eye salmon have been taken commercially from the Cop­
per River since 1904 and it supports an important sub­
sistence fishery (FIS, Vol. 2, p. 156). The Gulkana 
River, the tributary of the Copper, which is tightly 
hugged by the pipeline route, is singled out as:

“. . . a beautiful clean stream which is accessible 
by road almost throughout its entire length, [and 
as being] the most important fishery stream in the 
Copper River System. Some 100,000 sockeye and



4a

20,000 chinook salmon and some steelhead migrate 
up this stream annually.” (FIS, Vol. 2, p. 157).

The Gulkana flows through Summit and Paxson Lakes, 
both of which “offer excellent fishing. . . . Paxson Lake 
Campground . . .  is the most heavily used recreation 
facility in this region. . . . [T]he campground is often 
over-subscribed during the summer” (FIS, Vol. 2, p. 254).

Some 234 gravel pits will be established from which 
will be extracted 83 million cubic yards of gravel (FIS, 
Vol. 1, p. 245; Vol. 4, p. 66). Access roads and the pipe­
line would also become permanent features of the land­
scape (FIS, Vol. 4, p. 139). Aesthetic values in all areas 
traversed by the pipeline would be reduced (FIS, Vol. 4, 
p. 139) ; and further development will follow on the heels 
of pipeline construction (FIS, Vol. 1, pp. 248-251).

b. Wildlife
Substantial sections of the pipeline will be elevated. 

These portions, together with the associated road, will 
present a “combined barrier effect” on migrations of 
large mammals, especially caribou, preventing them from 
reaching calving grounds and grazing ranges (FIS, Vol. 
4, pp. 157-161).* However, “because of the limited re-

* The pipeline will tra n se c t carbou ran g e  in  th e  S agavan irk tok , 
th e  Yukon, and  th e  Copper R iv er d ra in a g es  (F IS , Vol. 2, p. 159, 
Table 12). The S ag av an irk to k  d ra in ag e  is sp lit down th e  m iddle 
by th e  pipeline and associa ted  road. I t  is flanked by th e  ranges 
of th e  P orcup ine herd , n u m b erin g  140,000 caribou, on the  e a s t and, 
on th e  w est, by  th e  A rc tic  herd  w hich num bers 243,000 caribou. 
These tw o h erds in te rm in g le  in  th e  sum m er in  th e  v ic in ity  o f th e  
proposed pipeline ro u te  (F IS , Vol. 2, p. 176). F o r  over 50 m iles 
th e  p ipeline could block th e ir  m ig ra tio n  rou tes, includ ing  one pass 
used in  sp rin g  by some 25,000 caribou  (F IS , Vol. 4, pp. 158-159). 
In  add ition , ce rta in  dam age to  caribou  w ill occur in  th e  Copper 
R iver B asin  w here  20,000 caribou of th e  N elchina h e rd  m ay be 
c u t off from  th e ir  ca lv ing  g rounds (F IS , Vol. 4, p. 158). And, 
sou th  of the  B rooks R ange po rtions of th e  W estern  A rtie  caribou 
herd  as well as moose w ill be affected (F IS , Vol. 4, p. 157).



5a

search that has been done to date on the behavior of 
wild animals, the significance of the disruption of be­
havior patterns on the well-being of wildlife cannot be 
fully evaluated” (FIS, Vol. 4, p. 149). Nor can a full 
evaluation be made of “the effects of the above-ground 
portions of the pipeline on movements of large mammals” 
(FIS, Vol. 4, pp. 531-533), the effects on large mammals 
of the odors and sounds from the pipeline (FIS, Vol. 4, 
p. 159), or the extent of destruction of lichens, which 
are forage for caribou, from S02 emissions from pump­
ing stations (FIS, Vol. 4, pp. 117-118). “Virtually no 
information is available . . .  on the effects of crude oil 
on large mammals as a result of direct contact or inges­
tion” (FIS, Vol. 4, p. 626).

The “relative toxicity of North Slope crude oil to birds 
is not known” (FIS, Vol. 4, p. 229). But it is known 
that “refined petroleum, materials are . . . lethally toxic 
to waterbirds” (Ibid), and that “oil spills on water and 
land are detrimental to birds and their habitat” (FIS, 
Vol. 4, p. 191). “Migratory birds that seasonally reside 
or migrate through [Alaska] . . . are part of an inter­
national resource that is shared by many people of many 
nations” (FIS, Vol. 2, p. 163). The Copper River Delta, 
which would be traversed by the pipeline “undoubtedly 
supports some of the greatest remaining concentrations 
of birdlife on the face of the earth” (FIS, Vol. 3, p. 311). 
Yet “except for a few species and races, information on 
seasonal distribution and numbers, breeding biology, 
habitat requirements and migration routes for most spe­
cies within the State and adjacent marine waters is 
scanty at best and usually either fragmentary or gener­
alized” (FIS, Vol. 2, p. 163).**

** A m ong th e  hundreds of b ird  species th a t  w ill be jeopard ized  
by  oil spills along th e  ta n k e r  rou te  a re :  w h is tlin g  and  tru m p e te r  
sw an s; m allards, black b ran t, yellow-billed loons, and th e  g re a t 
crested  g reb e ; the  g re a t blue heron, em peror goose, k in g  eider,



6a

c. Seismic Concerns
For a full two-thirds of its route, the pipeline traverses 

“one of the most seismieally active regions in the world” 
(FIS, Vol. 3, p. 20). And “it is almost a certainty that 
one or more large earthquakes will occur in the vicinity 
of this portion of the proposed route during the lifetime 
of the pipeline” (FIS, Vol. 1, p. 97). Surface faulting 
is acknowledged to constitute a major risk of pipe rup­
ture (FIS, Vol. 1, p. 15; Vol. 2, p. 11), and can in turn 
“trigger landslides and sea waves that could jeopardize 
the integrity of the pipeline” (FIS, Vol. 2, p. 11). Yet 
only one active fault has actually been identified along 
the entire pipeline route (FIS, Vol. 4, pp. 48-49). For 
four large segments, which total more than 250 miles, 
and are characterized by the occurrence of sizeable 
earthquakes, faults have either not been identified or 
have not been verified as being active (FIS, Vol. 4, pp. 
40, 41, 44, 52).

d. Streams and Fish
The pipeline makes hundreds of stream crossings and 

parallels streams for half its route. Bed scour and bank 
erosion at stream crossings can rupture the pipeline 
(FIS, Vol. 1, Summary Sheet). Yet the features of the 
arctic and sub-arctic environment which determine the 
extent of bed scour and bank erosion (such as stream 
icings, ice jam floods, and floods resulting from outbursts 
of glacier-dammed lakes) vary greatly from year to year 
and have not been systematically studied (FIS, Vol. 2, 
pp. 81-83, 97). “ [T]he amount of erosion to be expected 
due to construction activities cannot be predicted with 
any degree of precision because (1) the project descrip-

ruddy  duck, m otley-faced sh earw a te r, and least sa n d p ip e r ; 14 
species o f gull, th e  endangered  sh o rt-ta iled  a lbatross, long-tailed  
jaeg e r, m arbled  godw it, tu f te d  puffin, w him brel and  the  w andering  
ta t le r  (F IS , Vol. 3, p. 309, Table 40).



7a

tion doesn’t give important ‘as-built’ details, (2) the 
probability and extent of future floods, icings, and ice 
jams are unknown, (3) the erosion effects of floods are 
difficult to evaluate, and (4) the success of erosion-con­
trol methods is unpredictable. . . (FIS, Vol. 4, p. 78).

Even with the best leak detection capability now de­
veloped, as much as 750 barrels of oil could be lost every 
day without being detected (FIS, Vol. 4, p. 135). If the 
pipe were actually to rupture, more than 60,000 barrels 
could escape (FIS, Vol. 1, p. 23). Any major spill re­
sulting from, pipeline failure would likely find its way 
into a stream (FIS, Vol. 4, pp. 16-53). From the point 
at which it is spilled, oil would drift downstream for 
considerable distances, jeopardizing not only the primary 
river basins but also the Beaufort Sea, Prince William 
Sound and the Pacific Ocean (FIS, Vol. 4, pp. 135-136). 
“Adequate studies on pollution and its effect on the repro­
ductive capability of fish and invertebrates appear not 
to have been done” (FIS, Vol. 4, p. 199). “Detailed in­
formation is not available on the economic structure of 
Alaska’s fisheries industry” (FIS, Vol. 4, p. 432). “[T]he 
cost effect of possible pollution impact on commercial 
fisheries is also not subject to determination, pending 
further studies” (FIS, Vol. 4, p. 363).

2. Marine Impact of the Proposed Oil Pipeline
The proposed oil pipeline will introduce the first major 

oil pollution into the waters of Prince William Sound 
and the Northeast Pacific (FIS, Vol. 4, p. 482).

At the present time, Prince William Sound is an area 
of “truly clean and untarnished beauty . . . teeming with 
marine life” (FIS, Vol. 2, p. 216). It supports a thriving 
commercial fishery for pink, chum, and sockeye salmon, 
Dungeness and tanner crabs, razor clams, herring and 
herring eggs, and is known to have commercial quanti-



8a

ties of other species which have not yet been fished (FIS, 
Yol. 3, pp. 370-373). Moreover, it is used extensively 
by recreationists for salt and fresh water fishing, sight­
seeing, and photography. Its abundant porpoises, seals, 
sea otters, and sea lions, the beauty of its rugged shore­
line scalloped by bays and fjords, and its backdrop of 
steep mountains and glaciers that creep down to water’s 
edge afford visitors a unique wilderness experience (FIS, 
Vol. 2, p. 216; Vol. 3, pp. 399-402). The vast Northeast 
Pacific is similarly used for recreation and commercial 
fishing. It “is now relatively unpolluted compared to 
much of the remainder of the world’s oceans” (FIS, Vol. 
4, p. 542). Along the entire tanker route, “there is little 
history of casualties resulting in pollution . . (FIS, 
Yol. 3, p. 417).

“ [Ajccidents and unintentional discharges would occur 
in spite of full utilization of technological advances and 
the most stringent regulations” (FIS, Vol. 1, p. 205). 
In an average year as much as 140,000 barrels of oil 
may be spilled into the marine environment as a result 
of tanker casualties (grounding and collisions) (FIS, 
Vol. 4, p. 474) ; additional quantities could be pumped 
directly into ocean waters during tank cleaning opera­
tions (FIS, Vol. 3, pp. 420-426; Vol. 4, p. 469) ; and there 
will be a continual intentional discharge of oil from a 
ballast treatment plant at Port Valdez, causing chronic 
pollution of Prince William Sound (FIS, Vol. 4, p. 467).

According to statistics prepared by the Environmental 
Protection Agency, less than five percent of oil spilled is 
recovered (FIS, Vol. 4, p. 484). Large spills in Prince 
William Sound “would be more difficult to contain, clean­
up, and restore” than spills in other areas of the country 
because “of the distances from sources of ships and 
cleanup gear and the generally limited available man­
power in the region” (FIS, Vol. 4, p. 484). “ [Ujnless 
extraordinary advances in oil containment and recovery



9 a

techniques occur, almost all of the oil spilled by the tanker 
system would constitute an adverse impact on the marine 
ecosystem” (FIS, Vol. 1, p. 225).

Any attempt to predict the impact on the marine en­
vironment is hampered by: (1) lack of basic informa­
tion concerning many types of oil toxicity mechanisms; 
(2) difficulty in predicting the frequency and location 
of spills; and (3) lack of baseline data on biotic re­
sources (FIS, Vol. 4, p. 196). “ [T]he available infor­
mation on potential effects of oil pollution reveals more 
unknowns than proven conclusions.” It is “not at all 
clear what the acute and long-term effects of oil upon 
the environment and living marine resources . . . would 
be” (FIS, Vol. 4, p. 623). “ [T]here have not been suffi­
cient studies . . .  to describe the long-term effects of 
sublethal levels of oil pollution” (FIS, Vol. 4, p. 202). 
“ [V]ery little research has been directed toward iden­
tifying the less obvious effects of oil pollution due to in­
tentional discharge at sea” (FIS, Vol. 4, p. 204).

Existing hydrographic surveys are inadequate for prac­
tically every area that the proposed marine transport 
system will traverse from Port Valdez to Southern Cali­
fornia (FIS, Vol. 3, pp. 162-164, 168-169, 174, 177). 
And, at this late date—some three and one-half years 
after the oil companies selected Valdez as their southern 
terminus—“little is known about the climatology of 
Prince William Sound” (FIS, Vol. 3, p. 101) and “very 
few data concerning wind speeds [have] been collected 
at Valdez” (FIS, Vol. 3, p. 102).

Even in the one area where it is known that there 
will be the intentional discharge of oil into the sea—the 
ballast treatment plant at Valdez—“the path [s] that the 
oil would take . . . cannot be predicted with the available 
information and the overall pollution level for Port Val­
dez . . . cannot be accurately predicted” (FIS, Vol. 6, p.



80). Thus, “the intentional discharge of ballast waters 
. . . would have some likelihood of becoming a threat to 
the various parts of the marine ecosystem. . . . but the 
impact cannot be evaluated because of the variables in­
volved” (FIS, Vol. 4, p. 216).

3. Impact of the Gas Pipeline
Each of the three trans-Canada gas pipeline routes 

considered in the Impact Statement measures more than 
1,500 miles from Prudhoe Bay to Edmonton, Alberta 
(FIS, Vol. 5, pp. 138, 150, 161, 172). The Impact State­
ment devotes a total of eleven pages to its primary 
evaluation of the environmental impact of a gas pipe­
line along either of these three routes (FIS, Vol. 4, pp. 
492-503), and it explains that “lack of detailed informa­
tion on specific routes and facilities obviously limits the 
impact analysis” (FIS, Vol. 1, p. 176).

“ [M]any of [the] adverse effects” of oil pipeline con­
struction “would be the same for the gas transportation 
system selected.” Like the oil pipeline, “construction of 
an arctic gas pipeline would leave a permanent mark on 
the landscape,” although the impact of operation would 
be less than for an oil pipeline due to the temperature of 
transported gas, the general burial of the line, and the 
lessened impact of pipeline rupture (Vol. 4, pp. 492, 503, 
583).

Each of the gas pipeline routes would have substan­
tial environmental impacts on wilderness, fish, and wild­
life over and above those associated with the oil pipeline 
segment of the proposal (FIS, Vol. 4, pp. 495-503; Vol. 
5, pp. 143, 147). Although it is acknowledged that “it 
is probable that economies of . . . environmental impact 
will result from moving oil and gas through a common 
corridor,” “the extent of such economies is not estimated” 
(ESA, Vol. I, p. C-23).



11a

APPENDIX B

REPRESENTATIVE INDETERMINATES AND 
UNKNOWNS ACKNOWLEDGED IN THE 

FINAL IMPACT STATEMENT *

1. Natural Gas, Common Corridor
“[T]he operation of the pipeline system would lead to 
the extraction, transportation, and use of some unknown 
total quantity of oil and gas in excess of the presently 
known resources.” (FIS, Vol. 4, p. 69).

*  -X- -X- -X-

“The environmental impact of the gas transportation 
system that would necessarily accompany the crude oil 
transportation system is difficult to evaluate for several 
reasons. The most important reason is that no proposal 
describing a specific system or route has been received. 
It is therefore not certain what route or exactly what 
type of system would be proposed.” (FIS, Vol. 4, p. 5).

*  *X* *  *

“Whatever mode is chosen for transportation of gas, 
it is probable that economies of transportation cost and 
environmental impact will result from moving oil and 
gas through a common corridor . . . The extent of such 
economies is not estimated in the present analysis.” 
(ESA, Vol. I, Appendix C, p. 23).

*  *  -X- -x-

“[T]he various impacts [along a Canadian route] can­
not be evaluated nearly as well as can be those of the 
proposed pipeline system because of the level of informa­
tion available. . . .” (FIS, Vol. 5, p. 233).

* T his com pilation is taken  verba tim  from  A ppendix B of the 
A ppendices subm itted  by The W ilderness Society, E nv ironm ental 
D efense F und , Inc., and  F rien d s of the  E a r th  in conjunction  w ith  
th e ir  B rie f  on N ational E nv ironm ental Policy A ct Issues.



12a

2. Oil Spills: Likelihood, Effects and Cleanup

a. Likelihood, General Effects
“In the event of a pipeline break, up to 50,000 barrels 
of oil could be drained from the pipeline after shutdown 
and valve closure. . . . Alyeska estimates that at peak 
throughput (2,000,000 bbl/day) an additional 8,333 bar­
rels of oil could leak out during the 6 minutes required 
for pump station shut-down and valve closure. . . . The 
best leak detection capability expected after experience 
is estimated at 750 bbl/day. . . . Amounts of oil below 
this level could therefore be lost each day and not be 
detected by the line volume alarms.” (FIS, Vol. 4, p. 
135).

* tt *
“Atlantic Richfield calculated that a spill of 25,000 
barrels from the proposed trans-Alaska pipeline in winter 
would cover 6.6 acres in level country. The size of up­
land areas that would be covered by lesser or greater 
quantities in winter or summer was not discussed. How 
far a given quantity of oil would flow across sloping 
terrain not crossed by streams was not discussed. . . . 
Based on Atlantic Richfield Company’s calculations, it 
is assumed that a comparable spill in summer would 
cover many more than 6.6 acres. It is also assumed that 
Atlantic Richfield Company’s calculations are based on 
a leak in an above ground part of the pipe. How far 
oil would travel from a leak in a buried part of the pipe 
is not known, but such oil would likely discharge to the 
surface where the pipe crosses stream channels or de­
pressions.” (FIS, Vol. 4, pp. 112-113).

* -X- * *
“The intentional discharge of ballast waters into the 
Gulf of Alaska, as presently permitted by state, fed­
eral and international regulations, and the accidental 
loss of oil could be a definite threat to the marine eco-



13a

system, but the adverse effects cannot be precisely evalu­
ated due to the variables involved. The currents in the 
Gulf of Alaska would circulate any spilled oil so that 
it could affect areas far distant from the original dis­
charge site.” (FIS, Vol. 4, pp. 542-543).

* * * *
“Present international conventions, national and state 
statutes and regulations, and Alyeska procedures are 
such that the proportion of the ballast and tank cleaning 
residues that would be discharged into the sea and into the 
ballast treatment facility cannot be accurately predicted.” 
(FIS, Vol. 4, p. 469).

-X - -X - *  *

“[T]he international discharge of ballast waters into 
the Gulf of Alaska, as presently permitted by state, 
federal and international regulations, would have some 
likelihood of becoming a threat to the various parts of 
the marine ecosystem, but the impact cannot be evaluated 
because of the variables involved.” (FIS, Vol. 4, p. 216).

*  *- *  -X-

“The path(s) that the oil would take after leaving the 
diffuser at depth in Port Valdez cannot be predicted 
with the available information and the overall oil pollu­
tion level for Port Valdez likewise cannot be accurately 
predicted.” (FIS, Vol. 6, p. 80).

* * * *

“Microbial degradation of oil in Port Valdez would 
undoubtedly occur, but at an unknown rate and thus 
with unknown impact.” (FIS, Vol. 4, p. 210).

* * * *
“ [T]he oil spill threats that would be imposed by the 
existence of the operating pipeline system and tanker 
system . . . .  cannot be accurately predicted in terms 
of oil loss frequency, location, or volume due to the com-



14a

plexities of the systems, the variables, and the projection 
bases involved.” (FIS, Vol. 4, pp. 4-5).

* * * *
“The northeast Pacific is now relatively unpolluted com­
pared to much of the remainder of the world’s oceans. 
The background hydrocarbon level is relatively low in 
Port Valdez and Prince William Sound, and even though 
it is not at all clear what the acute and long-term ef­
fects of oil upon the environment would be, it is ex­
pected that the biological effects would be most apparent 
in these areas.” (FIS, Vol. 4, p. 542).

* * * *
“It may be concluded then, that the components of the 
marine ecosystems are sufficiently dissimilar between the 
northern and southern portions of the route to expect 
a markedly different response to both acute and chronic 
low-level oil pollution. The theoretical bases and research 
data . . . are not adequate to permit accurate prediction 
of these responses however.” (FIS, Vol. 4, p. 211).

b. Effects on Fish and Wildlife
“Predictions of the effects of North Slope crude oil on 
biotic systems of Alaska are nearly all limited by one 
or more of three general constraints: (1) basic informa­
tion concerning many types of oil toxicity mechanisms 
is incomplete; (2) there is difficulty in predicting the 
frequency, volume, location and timing of oil losses 
which would occur along the proposed route; and (3) in 
many cases existing information about biotic resources 
is often insufficient for analytical use.” (FIS, Vol. 4, 
p. 98).

* * * *
“A study of the available information on potential effects 
of oil pollution reveals more unknowns than proven 
conclusions. It thus is not at all clear what the acute 
and long-term effects of oil upon the environment and



15a

living marine resources of a region would be.” (FIS, 
Yol. 4, p. 623).

*  *  -X-

“Studies of the effects of chronic and low-level pollution 
upon subadult, larval and egg stages and the causes for 
changes in survival are extremely limited. Simply meas­
uring plankton volume or counting species to evaluate 
the impact of an oil spill may not detect the psysiological 
effects.” (FIS, Yol. 4, p. 625).

“ [T]he consequences of pollutant hydrocarbons in marine 
ecosystems is as yet not understood.” (FIS, Vol. 4, p. 
626).

■X- *  -X- -X-

“Virtually no information is available, however, on the 
effects of crude oil on large mammals, as a result of 
direct contact or ingestion . . . The amount of oil which 
could be ingested before acute effects results is not known 
and presumably would vary between species.” (FIS, Vol. 
4, p. 1 7 1 ) . * * *
“Adequate studies on oil pollution and its effect on the 
reproductive capability of fish and invertebrates appear 
not to have been done.” (FIS, Vol. 4, p. 199).

* * * *
“There have not been sufficient studies, however, to de­
scribe the long-term effects of sublethal levels of oil pol­
lution.” (FIS, Vol. 4, p. 202).

•X- *  *- -X-

“Very little research has been directed toward identfying 
the less obvious effects of oil pollution due to intentional 
discharge at sea.” (FIS, Vol. 4, p. 204).

-X* *  -X- -X*

“The impact on beach utilizing mammals of oil hydro­
carbons that have become entrained in the marine eco-



16a

system from chronic low-level sources is unknown, but 
some of the possible ramifications are discussed in the 
appendix to this volume.” (FIS, Vol. 4, p. 248).

•X* *  *  *

“The effect on fur seals of petroleum products in the 
marine environment can only be inferred.” (FIS, Vol. 
3, p. 249).

•X* X- X- *

“Waterfowl losses from oil reaching the deltas of the 
Yukon and Copper Rivers could be serious both because 
densities of birds are great and because some species 
and races are unique to these areas. The occurrence of 
such events cannot be predicted nor the results evaluated 
because of the uncertainties involved.” (FIS, Vol. 4, pp. 
191-192).

X- *  *  X-

“Birds and their habitat along the routes from Valdez 
to southern terminals would be affected by this marine 
system. The magnitude of the effects on this interna­
tionally important resource is unpredictable because of 
the many variables involved. These variables include the 
magnitude and nature of oil that could be spilled and 
the numbers and distribution of birds.” (FIS, Vol. 4,
p. 2 2 2 ) .

X- X- X  *

“Although the relative toxicity of North Slope crude oil 
to birds is not known, many refined petroleum materials 
are known to be lethally toxic to waterbirds.” (FIS, 
Vol. 4, p. 229).

c. Cleanup and Rehabilitation
“The most significant impacts of the proposed pipeline 
upon fishery resources of the Beaufort Sea would occur 
with the spillage of oil. . . . The most serious problems 
would perhaps occur if oil were discharged under the



17a

ice, since there is no known way to effectively clean 
up such a spill. . . (FIS, Vol. 4, p. 136).

“Contingency plans should be directed toward first pre­
venting and minimizing the chance for wildlife to be­
come contaminated by oil and, second, rehabilitating 
those animals that are contaminated with oil. Techniques 
for solving both problems are presently either ineffective 
or untested and warrant efforts to perfect them.” (FIS, 
Vol. 4, pp. 310-311).

* * * *
“Equipment and methodology do not now exist for the 
control and cleanup of large oil spills without significant 
environmental stress. This would be true for most small 
spills as well along much of the tanker route, and is 
especially true in the Subarctic.” (FIS, Vol. 4, p. 543).

-X- -X- *

“The Alaskan area presents a different situation than the 
west coast. The remoteness of the [Alaskan] area makes 
logistic support much more difficult to provide. At the 
present time there is very little response to polluting 
spills, not only in Valdez but in the entire area.” (FIS, 
Vol. 4, p. 483).

* * * *
“Oil of varying sorts can be cleaned from the plumage 
of birds with several kinds of cleaners, but so far there 
is no convincing evidence that the natural water repelling 
qualities can be restored to the cleaned feathers by 
known means . . . .” (FIS, Vol. 4, pp. 232-233).

•X* *  *  *

“Alyeska Pipeline Service Company . . . intends to at­
tempt rehabilitation of only the endangered species that 
are contaminated in the Port Valdez area. Their methods 
of rehabilitation, including cleaning, restoration of plum-



18a

age, rearing procedures and facilities, have not been 
described.” (FIS, Vol. 4, p. 234).

3. Marine

a. Physical and Chemical Oceanography
“Basic hydrographic surveys of Port Valdez were made 
in 1966. . . . However, because of the possible presence 
of pinnacle rocks, wire drag surveys, particularly along 
the shoreline, are recommended before deep draft tankers 
operate in the area.” (FIS, Vol. 3, pp. 162, 163).

*  *  *  -X*

“One of the 1966 surveys of Port Valdez extended into 
the northern part of Valdez Narrows. The most recent 
survey of the southern part is dated 1902 and is in­
adequate.” (FIS, Vol. 3, p. 163).

-x* *  -X- -x-

“ [S]urveys for 90% of [Prince William Sound] area 
date from 1902 to 1914 and are inadequate for accurate 
modern navigation data analysis . . . .  The March 1964 
earthquake caused a bottom uplift of from four to 32 
feet in Prince William Sound. (FIS, Vol. 3, p. 164).

*  *  *  -X-

“Hydrographic survey coverage for the entire [Gulf of 
Alaska] area is poor.” (FIS, Vol. 3, p. 168).

*  *  -X- *

“Basic hydrographic survey coverage for the [North­
east Pacific] area is . . . considered inadequate except 
for . . .  1). small, isolated sections along the U.S. main­
land coastline, 2). a 176,000 square mile area west of 
San Francisco, California, surveyed in 1960-66.” (FIS, 
Vol. 3, p. 169).

* * * *
“Basichydrographic survey coverage for the western 50 
miles of U.S. Strait of Juan de Fuca waters is . . .



19a
considered inadequate for modern navigation require­
ments.” (FIS, Vol. 3, p. 174).

-3$• * * *
“Surveys [of Southern California] are considered in­
adequate. One survey of the area, from the Mexico- 
United States boundary and proceeding northward, started 
in 1968 and is expected to continue for the next several 
years.” (FIS, Vol. 3, p. 177).

■X- -X- *  -X-

“The National Marine Fisheries Service has a research 
program underway and intends to take limited special 
current measurements in the Port Valdez area. However, 
for good knowledge of the currents of this area a true 
circulatory survey is needed.” (FIS, Vol. 3, p. 192).

■X- -X* *  *

“Although oceanographic studies are continuing in Port 
Valdez, sufficient data are not yet on hand to accurately 
predict the diffusion and distribution of hydrocarbons 
discharged from the terminal operation.” (FIS, Vol. 
4, p. 2 0 8 ) .

-X* *  -X-

“ ‘To understand the circulation and flushing character­
istics of Port Valdez a year-round hydrographic and 
current sampling program and a very detailed study of 
tidal changes in chemical parameters of the waters will 
be necessary.’ ” (FIS, Vol. 4, p. 210).

* * *
“A study in Valdez Arm by the University of Alaska 
is proposed to deal specifically with the chemical aspects 
of marine oil pollution. Limited temperature and salinity 
data are presented in the section on circulation of Prince 
William Sound.” (FIS, Vol. 3, p. 206).

b. Climate and Weather
Data contained in summaries are based on observation 
by ships in passage, which tend to avoid bad weather



20a

whenever possible, “thus biasing the data toward good 
weather samples.” (FIS, Vol. 3, p. 66).

* * * *-
“Little is known about the climatology of Prince William 
Sound. . . A meteorological observing station should 
be established in Prince William Sound as soon as pos­
sible. An instrumented bouy [sic] close to the shipping 
channel could obtain observations representative of con­
ditions in the open sound.” (FIS, Vol. 3, p. 101).

* * *
“Very few data concerning wind speeds has been col­
lected at Valdez.” (FIS, Vol. 3, p. 102).

c. Marine Aquatic Vegetation
“Little detailed information concerning marine aquatic 
vegetation is available for the coast between Port Valdez 
and Puget Sound and for Alaskan waters in general. 
The information on marine algae is particularly limited 
for no mapping or repetitive sampling has taken place 
in that entire area.” (FIS, Vol. 3, p. 221).

* * *
“Planktonic plants are the only important plants in the 
open sea, but in the shallow waters rooted aquatic plants 
can develop. In addition to the higher plants there is a 
large algae (kelp and seaweed) production, plus an un­
known microflora which, though not assessed, is thought 
to be of tremendous biological importance.” (FIS, Vol. 
3, pp. 233-234). * * * *
“The impact of the proposed project on plankton along 
the tanker route cannot be completely evaluated other 
than to expect that some part of the plankton resource 
would disappear in certain locations and that the dis­
appearance would, in turn, affect other parts of the 
marine ecosystem.” (FIS, Vol. 4, p. 212).

* * * *



21a

d. Biologic Oceanography
“Marine mammals of the Beaufort Sea are known with 
respect to species and biology, but poorly known in terms 
of numerical abundance,” (FIS, Vol. 2, p. xlii).

* * * *
“Predictions of the effects of North Slope crude oil 
upon biotic systems of the marine environment are nearly 
all faced with one or more of three general constraints: 
(1) basic information concerning many types of oil 
toxicity mechanisms is incomplete; (2) there is difficulty 
in predicting the frequency, volume, location and timing 
of oil losses which would occur along the proposed route; 
and (3) existing information upon biotic resources is 
often insufficient for analytical use.” (FIS, Vol. 4, p. 
196).

4. Wildlife
“ [T]he geographic, temporal, and numerical distributions 
of the fish, bird, and wildlife populations are known only 
within rather broad limits and the extent of knowledge 
varies from species to species and topic to topic.” (FIS, 
Vol. 4, p. 4).

a. Mammals
“Because of the limited research that has been done to 
date on the behavior of wild animals, the significance of 
the disruption of behavior patterns on the wellbeing of 
wildlife cannot be fully evaluated. It is known, how­
ever, that disturbance during and immediately following 
birth can result in substantial decrease in survival of the 
new born young in moose . . . , mountain sheep . . . , 
and caribou . . . .” (FIS, Vol. 4, p. 149).

* * * *



22a

“The effect of the above-ground portions Of the pipeline 
on movements of large mammals cannot be conclusively 
predicted. Knowledge of the behavioral reaction of large 
mammals to obstructions is as yet quite limited, and 
there is not sufficient experience nor has the research 
been completed to provide a sound basis for the design 
and spacing of animal crossing facilities.” (FIS, Vol. 
4, p. 1 5 3 ) .

* * *
“Further deterrents to the movement of animals across 
the above-ground portion of the pipeline would be the 
possibility of the presence of odors from the insulation 
or other materials used in the pipe construction which 
the animals might react to and the possible influence 
of sound generated by the flowing oil in the pipeline. 
Neither the frequency and intensity of sounds which 
would be generated by the pipe, nor the muffling effect 
of the pipeline insulation, are now known.” (FIS, Vol. 
4, p. 1 5 9 ) .

■* * * *
“A noise level of 74 decibels at 600 feet from a pump 
station is estimated from a total accoustical band spec­
trum. . . . The effects of these noise levels on various 
animals are unknown.” (FIS, Vol. 1, p. 113).

b. Birds

“Except for a few species and races, information on 
seasonal distribution and numbers, breeding biology, 
habitat requirements and migration routes for most bird 
species within the State and adjacent marine waters is 
scanty at best and usually either fragmentary or general­
ized. Correspondingly, information regarding the status 
of many species of birds within the zone-of-influenee of 
the proposed pipeline and attendant facilities is poor; 
and much of it is circumstantially based upon findings



23a

from unrelated investigations in other parts of the 
State.” (FIS, Vol. 2, p. 163).

“Population estimates for most non-game species are al­
most nonexistent.” (FIS, Vol. 2, p.190).

•X - -X * -X - *

“ [a] better appreciation of the importance of . . . 
offshore areas to birds is yet to be gained and some 
pertinent studies have just been initiated.” (FIS, Vol. 
2, p. 175).

“Affinities of these nonbreeding waterfowl to their breed­
ing populations, elsewhere and of breeding waterfowl 
to wintering areas in the south have not been determined 
for most species.” (FIS, Vol. 2, pp. 182-183).

-X - *  -X - -X -

“The peregrine falcon also occurs in the Sound wherever 
there is suitable habitat. Little is known about their 
distribution and abundance. It is not know if the race 
found there is the coastal Falco peregrinus peali or the 
endangered F.p. annatum.” (FIS, Vol. 3, p. 320).

c. Insects
“The insects of Alaska are not scientifically well known 
and systematic study of Alaskan species has only re­
cently started.” (FIS, Vol. 2, p. 149).

■5* *  -X - *X*

“There is little doubt then that oil lost in an accident 
would have an adverse, short-term direct impact par­
ticularly on those insects in an aquatic environment. The 
indirect and long-term impacts . . . upon aquatic insects 
in the Alaska environment are unknown.” (FIS, Vol. 
4, p. 195).



24a

5. Fishery Resources
“Knowledge of the life histories and population dynamics 
of the fishes in this area [Sagavanirktok River] is ex­
tremely limited.” (FIS, Vol. 2, p. 154).

■X- *  *  *

“Very little is known of the fishes of the Beaufort Sea.” 
(FIS, Vol. 2, p. 153).
“It is difficult to predict potential impacts when the 
state of knowledge about the fishery resources is incom­
plete and the proposed action is complex and involves 
many variables, only some of which are completely 
controllable.” (FIS, Vol. 4, p. 125).

* * * *
“Streams that do not contain anadromous species of fish 
have generally received less attention. In fact, many 
of these waters have never been sampled or studied in 
any manner.” (FIS, Vol. 4, p. 125).

* * * *
“The most serious remaining problems [regarding fish] 
would likely be caused by a number of unknowns.” (FIS, 
Vol. 4, p. 133). * * * *
“Detailed information is not available on the economic 
structure of Alaska’s fisheries industry.” (FIS, Vol. 
4, p. 432). * * # *
“Some approximation could be made of the losses to 
fishermen that would result from oil pollution associated 
with the project. The secondary effects on service and 
support facilities and the impact that a reduced multiplier 
effect would have on the general economy could only be 
speculated upon.” (FIS, Vol. 4, p. 432).

* * * •*



25a

“Damage to shellfish resources elsewhere [than Port 
Valdez] along the coast would depend upon location, 
timing, and extent of spills and cannot be predicted 
because of these variables.” (FIS, Vol. 4, p. 213).

*- *- * *
“The extent of loss [of herring eggs and larvae] to the 
fishermen cannot be predicted from available informa­
tion.” (FIS, Vol. 4, p. 434).

* * * *
“The effects of project operations upon the current and 
potential harvest of . . . finfish [other than salmon] 
resources cannot be estimated from current knowledge.” 
(FIS, Vol. 4, p. 434).

•3C- -3C- -X- -X*

“Effects of oil pollution on the fisheries north and west
of Prince William Sound are uncertain.” (FIS, Vol. 
4, p. 436).
“Spawning areas in the remainder of the [Prince Wil­
liam] Sound could be affected by spills occurring during 
the spawning period. The extent of loss to the fishermen 
cannot be predicted from available information. . . .” 
(FIS, Vol. 4, p. 434).

* * * *-
“The harvest of clams, oysters and Dungeness crabs 
south of Prince William Sound bring the fishermen 
about $17 million annually. It is likely that losses to 
these fisheries could occur periodically as a result of the 
marine transport of oil, but the timing and extent of 
these losses cannot be predicted.” (FIS, Vol. 4, p. 436).

6. Geology

a. Earthquakes
“Any point along the southern two-thirds of the proposed 
pipeline route could be subjected to a large-magnitude



26a

earthquake (greater than 7.0 on the Richter Scale) 
and the probability that one or more large-magnitude 
earthquakes would occur in the vicinity of this portion 
of the proposed route during the lifetime of the pipeline 
is extremely high, in fact, almost a certainty.” (FIS, 
Vol. 4, p. 518).

* # * *
“The proposed route intersects several recognized major 
faults in the active seismic region south of 67°N latitude; 
however, except for the Denali fault, which displays 
abundant geologic evidence of large Holocene offset 
(Richter and Matson, 1971), the risk of significant 
tectonic movement on these faults is essentially unknown 
at present. Many additional faults are also postulated, 
particularly in the segments 67°N to Donnelly Dome 
and Willow Lake to Valdez. Both of these segments are 
characterized by the frequent occurrence of sizeable earth­
quakes that have yet to be identified with individual 
faults.” (FIS, Vol. 2, p. 11).

*  -X- -X* *

“In July 1937, a magnitude 7.3 earthquake occurred 
southeast of Fairbanks. Landslides, mud boils, and ground 
fissures were observed (Bramhall, 1938) within 10 miles 
of the proposed pipeline route. On June 21, 1967, a 
series of three magnitude 5.5 shocks occurred within 
a few miles of the route. . . .  In this section of the route, 
the seismic risk is substantial, although it cannot be 
correlated with recognizable tectonic features.” (FIS, 
Vol. 2, p. 29).

*  *  -X- *

“The Kenai-Chugach Mountains are extremely active 
techtonically, which is demonstrated by the large num­
ber of earthquakes occurring in this section, and un­
doubtedly, faults are present. . . . However, it is diffi­
cult to locate fault zones in this area because of the 
uniform character of the bedrock and because of its



27a

altered or metamorphosed character.” (FIS, Vol. 2, p. 
38). * * * *
“Other significant engineering problems include extremely 
steep bedrock slopes to traverse in the Keystone Canyon 
and Thompson Pass areas, now unrecognized active fault 
zones, avalanche hazards locally between Keystone Canyon 
and Ernestine, and the large, probably inactive, landslide 
near Fort Liscum.” (FIS, Vol. 2, p. 39).

•X - *  *  *

“The proposed pipeline also may cross a fault about one 
mile north of Grayling Lake. No evidence has been 
found to indicate whether the faults are active or in­
active. Additional investigations will be required to de­
termine the potential activity of these faults.” (FIS, 
Vol. 4, p. 38). * * * *
“The pipeline in this segment of the route would cross 2 
faults in the vicinity of Fish Creek and may cross a 
third fault about 3 miles south of Prospect Creek. No 
evidence has been found to indicate whether these faults 
are active or inactive. Additional studies are required 
to determine the potential activity of the faults.” (FIS, 
Vol. 4, p. 40). ■K* * * *
“The proposed pipeline would cross mapped faults at 
Aggie Creek, Globe Creek and 2 miles north of Globe 
Creek. In addition, 3 other faults were recognized in 
this segment and may extend across the pipeline align­
ment. . . .  No evidence has been found to indicate 
whether or not the faults are active. A further study 
must be made to determine which of the faults cross 
the route alignment, and the activity of all of the faults.” 
(FIS, Vol. 4, p. 44).

* * * *



28a
“Although no faults have been delineated . . . the Kenai- 
Chugach Mountains are extremely active tectonically, and 
undoubtedly, faults are present.” (FIS, Vol. 4, p. 52).

b. Erosion
“It is questionable whether or not the proposed construc­
tion pad thickness, in many places, is sufficient to prevent 
deleterious thawing of permafrost and thickening of the 
active layer. If the permafrost thaws, differential settle­
ment or slope failure could occur locally, especially where 
the pad is underlain by ice-rich sediments. This problem 
could be severe on slopes and where drainage is impeded. 
Locally, where the temperature of the permafrost is close 
to 0°C, the thickness of the construction pad required 
to prevent thawing of the permafrost could be so great 
that it would be inadvisable to construct the pad.” (FIS, 
Vol. 4, p. 24).

*  *  *  -X -

“The amount of erosion to be expected due to construc­
tion activities cannot be predicted with any degree of 
precision because (1) the project description doesn’t give 
Important ‘as-built’ details, (2) the probability and ex­
tent of future floods, icings, and ice-jams are unknown, 
(3) the erosion effects of floods are difficult to evaluate, 
and (4) the success of erosion-control methods is un­
predictable.” (FIS, Vol. 4, p. 78).

c. Soils Investigation
“[A] large part of the route north of the Yukon River 
and some parts south of the Yukon River need further 
study.” (FIS, Vol. 4, p. 10).

7. Vegetation
“Mosses and lichens make up a large part of tundra vege­
tation . . . but little is known about reproduction and 
growth rates in arctic regions.” (FIS, Vol. 2, p. 125).

* * * *



29a
“Most studies of reproduction and growth in larch have 
been made within its commercial range in the Lake States 
and southeastern Canada. No data are available from 
Alaska. . . . The behavior of seedlings and growth to 
maturity in Alaska cannot, with validity, be extrapolated 
from data available.” (FIS, Vol. 2, p. 139).

-X* *  ‘X* *

“Little is known of the frequency and quantity of seed 
produced by tundra species. . . . Also almost nothing 
is known of the percent of viable seed that are pro­
duced. . . . The reasons for the apparent slow rate of 
reproduction of tundra species can be presented only as 
hypotheses in the absence of continued observations.” 
(FIS, Vol. 2, pp. 124-125).

-X- -X- -X- -X-

“Sites of 27 rare plant species are along or close to the 
pipeline alignment. . . . For some species, these locations 
are the only places where they are known; for other 
species they are the only known Alaska stations, but 
the species grow elsewhere.” (FIS, Vol. 4, p. 109).

-X- *  -x* -X*

“There are no methods to remove oil from terrestrial 
surfaces without destruction of vegetation on those sur­
faces.” (FIS, Vol. 4, p. 113).

-X- -X- *  -X-

“Gravel work pads, if not removed following construction 
completion, very likely would remain bare for many 
years because of compaction by the heavy machinery. 
No Alaskan experience on the rate of seedling establish­
ment on compacted, coarse materials is known.” (FIS, 
Vol. 4, p. 100).
8. Air Quality
“Air quality data are not available for the part of Alaska 
that would be crossed by the proposed pipeline route.” 
(FIS, Vol. 2, p. xxxiii).

* * * *



30a

“The available information does not fully describe the 
emissions that would occur. . . .  It is therefore not pos­
sible to evaluate the effect of the emissions on the local 
environment because the emission levels are not known.” 
(FIS, Vol. 4, p. 96).

* * * *
“No estimates of volume of camp waste to be processed 
are available and the anticipated emission levels for 
different pollutants are unknown at this time. No evalua­
tion of the effects of the contaminants is therefore pos­
sible.” (FSI, Vol. 4, pp. 86, 88).



31a

APPENDIX C

PUBLIC LAW 93-153; 87 STAT, 576

An Act to amend section 28 of the Mineral Leasing Act 
of 1920, and to authorize a trans-Alaska oil pipeline, 

and for other purposes.
Be it enacted by the Senate and House of Representatives 

of the United States of America in Congress assembled, 
That:

TITLE I

Section 101. Section 28 of the Mineral Leasing Act 
of 1920 (41 Stat. 449), as amended (30 U.S.C. 185),92 
is further amended to read as follows:

“Grant of Authority
“Sec. 28. (a) Rights-of-way through any Federal

lands may be granted by the Secretary of the Interior 
or appropriate agency head for pipeline purposes for the 
transportation of oil, natural gas, synthetic liquid or 
gaseous fuels, or any refined product produced there­
from to any applicant possessing the qualifications pro­
vided in section 1 of this Act, as amended, in accordance 
with the provisions of this section.

“Definitions
“ (b) (1) For the purposes of this section ‘Federal lands’ 

means all lands owned by the United States except lands 
in the National Park System, lands held in trust for an 
Indian or Indian tribe, and lands on the Outer Con­
tinental Shelf. A right-of-way through a Federal reserva­
tion shall not be granted if the Secretary or agency head 
determines that it would be inconsistent with the pur­
poses of the reservation.

92 30 U.S.C.A. §185.



32a

“ (2) ‘Secretary’ means the Secretary of the Interior.
“ (3) ‘Agency head’ means the head of any Federal 

department or independent Federal office or agency, 
other than the Secretary of the Interior, which has juris­
diction over Federal lands.

“Inter-Agency Coordination
“ (c) (1) Where the surface of all of the Federal lands 

involved in a proposed right-of-way permit is under 
the jurisdiction of one Federal agency, the agency head, 
rather than the Secretary, is authorized to grant or re­
new the right-of-way or permit for the purposes set 
forth in this section.

“ (2) Where the surface of the Federal lands involved 
is administered by the Secretary or by two or more 
Federal agencies, the Secretary is authorized, after con­
sultation with the agencies involved, to grant or renew 
rights-of-way or permits through the Federal lands in­
volved. The Secretary may enter into intragency agree­
ments with all other Federal agencies having jurisdiction 
over Federal lands for the purpose of avoiding duplica­
tion, assigning responsibility, expediting review of rights- 
of-way or permit applications, issuing joint regulations, 
and assuring a decision based upon a comprehensive re­
view of all factors involved in any right-of-way or per­
mit application. Each agency head shall administer and 
enforce the provisions of this section, appropriate regu­
lations, and the terms and conditions of rights-of-way 
or permits insofar as they involve Federal lands under 
the agency head’s jurisdiction.

“Width Limitations
“ (d) The width of a righhof-way shall not exceed 

fifty feet plus the ground occupied by the pipeline (that 
is, the pipe and its related facilities) unless the Secre-



83a

tary or agency head finds, and records the reasons for 
his finding, that in his judgment a wider right-of-way 
is necessary for operation and maintenance after con­
struction, or to protect the environment or public safety. 
Related facilities include but are not limited to valves, 
pump stations, supporting structures, bridges, monitor­
ing and communication devices, surge and storage tanks, 
terminals, roads, airstrips and campsites, and they need 
not necessarily be connected or contiguous to the pipe 
and may be the subjects of separate rights-of-way.

“Temporary Permits
“ (e) A right-of-way may be supplemented by such 

temporary permits for the use of Federal lands in the 
vicinity of the pipeline as the Secretary or agency head 
finds are necessary in connection with construction, op­
eration, maintenance, or termination of the pipeline, or 
to protect the natural environment or public safety.

“Regulatory Authority
“(f) Rights-of-way or permits granted or renewed 

pursuant to this section shall be subject to regulations 
promulgated in accord with the provisions of this section 
and shall be subject to such terms and conditions as the 
Secretary or agency head may prescribe regarding ex­
tent, duration, survey, location, construction, operation, 
maintenance, use, and termination.

“Pipeline Safety
“ (g) The Secretary or agency head shall impose re­

quirements for the operation of the pipeline and related 
facilities in a manner that will protect the safety of 
workers and protect the public from sudden ruptures 
and slow degradation of the pipeline.



84a

“Environmental Protection
“ (h) (1) Nothing in this section shall be construed to 

amend, repeal, modify, or change in any way the require­
ments of section 102(2) (C) or any other provision of 
the National Environmental Policy Act of 1969 (Public 
Law 91-190, 83 Stat. 852).

“ (2) The Secretary or agency head, prior to granting 
a right-of-way or permit pursuant to this, section for a 
new project which may have a significant impact on the 
environment, shall require the applicant to submit a plan 
of construction, operation, and rehabilitation for such 
right-of-way or permit which shall comply with this sec­
tion. The Secretary or agency head shall issue regula­
tions; or impose stipulations which shall include, but, shall 
not be limited to: (A) requirements for restoration, re- 
vegetation, and curtailment of erosion of the surface of 
the land; (B) requirements to insure that activities in 
connection with the right-of-way or permit will not vio­
late applicable air and water quality standards nor re­
lated facility siting standards established by or pursuant 
to law; (C) requirements designed to control or prevent 
(i) damage to the environment (including damage to 
fish and wildlife habitat), (ii) damage to public or pri­
vate property, and (iii) hazards to public health and 
safety; and (D) requirements to protect the interests 
of individuals living in the general area of the right-of- 
way or permit who rely on the fish, wildlife, and biotic 
resources of the area for subsistence purposes. Such 
regulations shall be applicable to every right-of-way or 
permit granted pursuant to this section, and may be 
made applicable by the Secretary or agency head to exist­
ing rights-of-way or permits, or rights-of-way or permits 
to be renewed pursuant to this section.



35a

“Disclosure
“ (i) If the applicant is a partnership, corporation, as­

sociation, or other business entity, the Secretary or agency 
head shall require the applicant to disclose the identity 
of the participants in the entity. Such disclosure shall 
include where applicable (1) the name and ad­
dress of each partner, (2) the name and adress of each 
shareholder owning 3 per centum or more of the shares, 
together with the number and percentage of any class 
of voting shares of the entity which such shareholder is 
authorized to vote, and (3) the name and address of 
each affiliate of the entity together with, in the case of 
an affiliate controlled by the entity, the number of shares 
and the percentage of any class of voting stock of that 
affiliate owned, directly or indirectly, by that entity, and, 
in the case of an affiliate which controls that entity, the 
number of shares and the percentage of any class of 
voting stock of that entity owned, directly or indirectly, 
by the affiliate.

“Technical and Financial Capability
“ (j) The Secretary or agency head shall grant or re­

new a right-of-way or permit under this section only 
when he is satisfied that the applicant has the technical 
and financial capability to construct, operate, maintain, 
and terminate the project for which the right-of-way or 
permit is requested in accordance with the requirements 
of this section.

“Public Hearings
“ (k) The Secretary or agency head by regulation shall 

establish procedures, including public hearings, where 
appropriate, to give Federal, State, and local government 
agencies and the public adequate notice and an oppor­
tunity to comment upon right-of-way applications filed 
after the date of enactment of this subsection.



36a

“Reimbursement of Costs
“ (1) The applicant for a right-of-way or permit shall 

reimburse the United States for administrative and other 
costs incurred in processing the application, and the 
holder of a right-of-way or permit shall reimburse the 
United States for the costs incurred in monitoring the 
construction, operation, maintenance, and termination of 
any pipeline and related facilities on such right-of-way 
or permit area and shall pay annually in advance the 
fair market rental value of the right-of-way or permit, 
as determined by the Secretary or agency head.

“Bonding
“ (m) Where he deems it appropriate the Secretary or 

agency head may require a holder of a right-of-way or 
permit to furnish a bond, or other security, satisfactory 
to the Secretary or agency head to secure all or any of 
the obligations imposed by the terms and conditions of 
the right-of-way or permit or by any rule or regulation 
of the Secretary or agency head.

“Duration of Grant
“ (n) Each right-of-way or permit granted or renewed 

pursuant to this section shall be limited to a reasonable 
term in light of all circumstances concerning the 
project, but in no event more than thirty years. In de­
termining the duration of a right-of-way the Secretary 
or agency head shall, among other things, take into con­
sideration the cost of the facility, its useful life, and any 
public purpose it serves, The Secretary or agency head 
shall renew any right-of-way, in accordance with the 
provisions of this section, so long as the project is in 
commercial operation and is operated and maintained 
in accordance with all of the provisions of this section.



“Suspension or Termination of Right-of-Way
“ (o) (1) Abandonment of a right-of-way or noncom- 

piiance with any provision of this section may be grounds 
for suspension or termination of the right-of-way if (A) 
after due notice to the holder of the right-of-way, (B) 
a reasonable opportunity to comply with this section, and 
(C) an appropriate administrative proceeding pursuant 
to title 5, United States Code, section 554, the Secretary 
or agency head determines that any such ground exists 
and that suspension or termination is justified. No ad­
ministrative proceeding shall be required where the right- 
of-way by its terms provides that it terminates on the 
oecurrence of a fixed or agreed upon condition, event, 
or time.

“ (2) If the Secretary or agency head determines that 
an immediate temporary suspension of activities within 
a right-of-way or permit area is necessary to protect 
public health or safety or the environment, he may abate 
such activities prior to an administrative proceeding.

“ (3) Deliberate failure of the holder to use the right- 
of-way for the purpose for which it was granted or re­
newed for any continuous two-year period shall consti­
tute a rebuttable presumption of abandonment of the 
right-of-way: Provided, That where the failure to use 
the right-of-way is due to circumstances not within the 
holder’s control the Secretary or agency head is not re­
quired to commence proceedings to suspend or terminate 
the right-of-way.

“Joint Use of Rights-of-Way
“ (p) In order to minimize adverse environmental im­

pacts. and the proliferation of separate rights-of-way 
across Federal lands, the utilization of rights-of-way in 
common shall be required to the extent practical, and 
each right-of-way or permit shall reserve to the Seere-



38a

tary or agency head the right to grant additional rights- 
of-way or permits for compatible uses on or adjacent to 
rights-of-way or permit area granted pursuant to this 
section.

“Statutes
“ (q) No rights-of-way for the purposes provided for 

in this section shall be granted or renewed across Fed­
eral lands except under and subject to the provisions, 
limitations, and conditions of this section. Any applica­
tion for a right-of-way filed under any other law prior 
to the effective date of this provision may, at the appli­
cant’s option, be considered as an application under this 
section. The Secretary or agency head may require the 
applicant to submit any additional information he deems 
necessary to comply with the requirements of this section.

“Common Carriers
“ (rj (1) Pipelines and related facilities authorized 

under this section shall be constructed, operated, and 
maintained as common carriers.

“ (2) (A) The owners or operators of pipelines subject 
to this section shall accept, convey, transport, or pur­
chase without discrimination all oil or gas delivered to 
the pipeline without regard to whether such oil or gas 
was produced on Federal or non-Federal lands.

“ (B) In the case of oil or gas produced from Federal 
lands or from the resources on the Federal lands in the 
vicinity of the pipeline, the Secretary may, after a full 
hearing with due notice thereof to the interested parties 
and a proper finding of facts, determine the proportionate 
amounts to be accepted, conveyed, transported or pur­
chased.

“ (3) (A) The common carrier provisions of this sec­
tion shall not apply to any natural gas pipeline operated



39a

by any person subject to regulation under the Natural 
Gas Act or by any public utility subject to regulation by 
a State or municipal regulatory agency having jurisdic­
tion to regulate the rates and charges for the sale of 
natural gas to consumers within the State or munici­
pality.

“ (B) Where natural gas not subject to State regula­
tory or conservation laws governing its purchase by 
pipelines is offered for sale, each such pipeline shall 
purchase, without discrimination, any such natural gas 
produced in the vicinity of the pipeline.

“ (4) The Government shall in express terms reserve 
and shall provide in every lease of oil lands under this 
Act that the lessee, assignee, or beneficiary, if owner or 
operator of a controlling interest in any pipeline or of 
any company operating the pipeline which may be oper­
ated accessible to the oil derived from lands under such 
lease, shall at reasonable rates and without discrimina­
tion accept and convey the oil of the Government or of 
any citizen or company not the owner of any pipeline 
operating a lease or purchasing gas or oil under the pro­
visions of this Act.

“ (5) Whenever the Secretary has reason to believe 
that any owner or operator subject to this section is not 
operating any oil or gas pipeline in complete accord with 
its obligations as a common carrier hereunder, he may 
request the Attorney General to prosecute an appropriate 
proceeding before the Interstate Commerce Commision or 
Federal Power Commission or any appropriate State 
agency or the United States district court for the district 
in which the pipeline or any part thereof is located, to 
enforce such obligation or to impose any penalty pro­
vided therefor, or the Secretary may, by proceeding as 
provided in this section, suspend or terminate the said 
grant of right-of-way for noncompliance with the provi­
sions of this section.



40a

“ (6) The Secretary or agency head shall require, 
prior to granting or renewing a right-of-way, that the 
applicant submit and disclose all plans, contracts, agree­
ments, or other information or material which he deems 
necessary to determine whether a right-of-way shall be 
granted or renewed and the terms and conditions which 
should be included in the right-of-way. Such information 
may include, but is not limited to: (A) conditions for, 
and agreements among owners or operators, regarding 
the addition of pumping facilities, looping, or otherwise 
increasing the pipeline or terminal’s throughput capacity 
in response to actual or anticipated increases in demand: 
(B) conditions for adding or abandoning1 intake, offtake, 
or storage points or facilities; and (C) minimum ship­
ment or purchase tenders.

“Right-of-Way Corridors
“ (s) In order to minimize adverse environmental im­

pacts and to prevent the proliferation of separate rights- 
of-way across Federal lands, the Secretary shall, in con­
sultation with other Federal and State agencies, review 
the need for a national system of transportation and 
utility corridors across Federal lands and submit a re­
port of his findings and recommendations to the Congress 
and the President by July 1, 1975.

“Existing Rights-of-Way
“ (t) The Secretary or agency head may ratify and 

confirm any right-of-way or permit for an oil or gas 
pipeline or related facility that was granted under any 
provision of law before the effective date of this subsec­
tion, if it is modified by mutual agreement to comply 
to the extent practical with the provisions of this section. 
Any action taken by the Secretary or agency head pur­
suant to this subsection shall not be considered a major 
Federal action requiring a detailed statement pursuant



41a

to section 102(2) (C) of the National Environmental 
Policy Act of 1970 (Public Law 90-190; 42 U.S.C. 4321).

“Limitations on Export
“ (u) Any domestically produced crude oil transported 

by pipeline over rights-of-way granted pursuant to sec­
tion 28 of the Mineral Leasing Act of 1920, except such 
crude oil which is- either exchanged in similar quantity 
for convenience or increased efficiency of transportation 
with persons or the government of an adjacent foreign 
state, or which is temporarily exported for convenience 
or increased efficiency of transportation across parts of 
an adjacent foreign state and reenters the United States, 
shall be subject to all of the limitations and licensing 
requirements of the Export Administration Act of 1969 
(Act of December 30, 1969; 83 Stat. 841) and, in addi­
tion, before any crude oil subject to this section may be 
exported under the limitations- and licensing require­
ments and penalty and enforcement provisions of the 
Export Administration Act of 1969 the President must 
make and publish an express finding that such exports 
will not diminish the total quantity or quality of 
petroleum available to the United States, and are- in the 
national interest and are in accord with the- provisions 
of the Export Administration Act of 1969: Provided, 
That the President shall submit reports to the Congress 
containing findings made under this section, and after 
the date of receipt- of such report Congress shall have 
a period of sixty calendar days-, thirty days of which 
Congress must have been in session, to- consider whether 
exports under the terms of this section are in the national 
interest. If the Congress within this- time period passes 
a concurrent resolution of disapproval stating disagree­
ment with the President’s finding concerning the na­
tional interest, further exports made pursuant to the 
aforementioned Presidential findings shall cease.



42a

“State Standards
“ (v) The Secretary or agency head shall take into con­

sideration and to the extent practical comply with State 
standards for right-of-way construction, operation, and 
maintenance.

“Reports
“ (w) (1) The Secretary and other appropriate agency 

heads shall report to the House and Senate Committees 
on Interior and Insular Affairs annually on the adminis­
tration of this section and on the safety and environ­
mental requirements imposed pursuant thereto.

“ (2) The Secretary or agency head, shall notify the 
House and Senate Committees on Interior and Insular 
Affairs promptly upon receipt of an application for a 
right-of-way for a pipeline twenty-four inches or more 
in diameter, and no right-of-way for such a pipeline 
shall be granted until sixty days (not counting days on 
which the House of Representatives or the Senate has 
adjourned for more than three days) after a notice of 
intention to grant the right-of-way, together with the 
Secretary’s or agency head’s detailed findings as to terms 
and conditions he proposes to impose, has been submitted 
to such committees, unless each committee by resolution 
waives the waiting period.

“ (3) Periodically, but at least once a year, the Secre­
tary of the Department of Transportation shall cause 
the examination of all pipelines and associated facilities 
on Federal lands and shall cause the prompt reporting 
of any potential leaks or safety problems.

“ (4) The Secretary of the Department of Transporta­
tion shall report annually to the President, the Congress, 
the Secretary of the Interior, and the Interstate Com­
merce Commission any potential dangers of or actual ex­
plosions, or potential or actual spillage on Federal lands



43a

and shall include in such report a statement of correc­
tive action taken to prevent such explosion or spillage.

“Liability
“ (x) (1) The Secretary or agency head shall promul­

gate regulations and may impose stipulations specifying 
the extent to which holders of rights-of-way and 
permits under this Act shall be liable to the United 
States for damage or injury incurred by the United 
States in connection with the right-of-way or permit. 
Where the right-of-way or permit involves lands which 
are under the exclusive jurisdiction of the Federal Gov­
ernment, the Secretary or agency head shall promulgate 
regulations specifying the extent to which holders shall 
be liable to third parties for injuries incurred in connec­
tion with the right-of-way or permit.

“ (2) The Secretary or agency head may, by regula­
tion or stipulation, impose a standard of strict liability 
to govern activities taking place on a right-of-way or 
permit area which the Secretary or agency head de­
termines, in his discretion, to present a foreseeable 
hazard or risk of danger to the United States.

“ (3) Regulations and stipulations pursuant to this 
subsection shall not impose strict liability for damage 
or injury resulting from (A) an act of war, or (B) 
negligence of the United States.

“ (4) Any regulation or stipulation imposing liability 
without fault shall include a maximum limitation on 
damages commensurate with the foreseeable risks or 
hazards presented. Any liability for damage or injury 
in excess of this amount shall be determined by ordinary 
rules of negligence.

“ (5) The regulations and stipulations shall also specify 
the extent to which such holders shall indemnify or hold



44a

harmless the United States for liability, damage, or 
claims arising in connection with the right-of-way or 
permit.

“ (6) Any regulation or stipulation promulgated or im­
posed pursuant to this section shall provide that all owners 
of any interest in, and all affiliates or subsidiaries of 
any holder of, a right-of-way or permit shall be liable 
to the United States in the event that a claim for 
damage or injury cannot be collected from the holder.

“ (7) In any case where liability without fault is im­
posed pursuant to this subsection and the damages in­
volved were caused by the negligence of a third party, 
the rules of subrogation shall apply in accordance with 
the law of the jurisdiction where the damage occurred.

“Antitrust Laws
“ (y) The grant of a right-of-way or permit pursuant 

to this section shall grant no immunity from the operation 
of the Federal antitrust laws.”

TITLE II

S h o r t  T i t l e

Sec. 201. This title may be cited as the “Trans- 
Alaska Pipeline Authorization Act”.

C o n g r e s s io n a l  F in d in g s

Sec. 202. The Congress finds and declares that:
(a) The early development and delivery of oil and 

gas from Alaska’s North Slope to domestic markets is in 
the national interest because of growing domestic short­
ages and increasing dependence upon insecure foreign 
sources.



45a

(b) The Department of the Interior and other Federal 
agencies, have, over a long period of time, conducted 
extensive studies of the technical aspects and of the 
environmental, social, and economic impacts of the pro­
posed trans-Alaska oil pipeline, including consideration 
of a trans-Canada pipeline.

(c) The earliest possible construction of a trans-Alaska 
oil pipeline from the North Slope of Alaska to Port 
Valdez in that State will make the extensive proven and 
potential reserves of low-sulfur oil available for domestic 
use and will best serve the national interest.

(d) A supplemental pipeline to connect the North 
Slope with a trans-Canada pipeline may be needed later 
and it should be studied now, but it should not be re­
garded as an alternative for a trans-Alaska pipeline that 
does not traverse a foreign country.

C o n g r e s s io n a l  A u t h o r i z a t io n

Sec. 203. (a) The purpose of this title is to insure
that, because of the extensive governmental studies al­
ready made of this project and the national interest 
in early delivery of North Slope oil to domestic markets, 
the trans-Alaska oil pipeline be constructed promptly 
without further administrative or judicial delay or im­
pediment. To accomplish this purpose it is the intent 
of the Congress to exercise its constitutional powers to 
the fullest extent in the authorizations and directions 
herein made and in limiting judicial review of the ac­
tions taken pursuant thereto.

(b) The Congress hereby authorizes and directs the 
Secretary of the Interior and other appropriate Federal 
officers and agencies to issue and take all necessary 
action to administer and enforce rights-of-way, permits, 
leases, and other authorizations that are necessary for or



46a

related to the construction, operation, and maintenance 
of the trans-Alaska oil pipeline system, including roads 
and airstrips, as that system is generally described in 
the Final Environmental Impact Statement issued by the 
Department of the Interior on March 20, 1972. The 
route of the pipeline may be modified by the Secretary 
to provide during construction greater environmental 
protection.

(c) Rights-of-way, permits, leases, and other authoriza­
tions issued pursuant to this title by the Secretary shall 
be subject to the provisions of section 28 of the Mineral 
Leasing Act of 1920, as amended by title I of this Act 
(except the provisions of subsections (h)(1), (k), (q), 
(w) (2), and (x)); all authorizations issued by the Sec­
retary and other Federal officers and agencies pursuant 
to this title shall include the terms and conditions re­
quired, and may include the terms and conditions per­
mitted, by the provisions of law that would otherwise be 
applicable if this title had not been enacted, and they 
may waive any procedural requirements of law or regula­
tion which they deem desirable to waive in order to ac­
complish the purposes of this title. The direction con­
tained in section 203(b) shall supersede the provisions 
of any law or regulation relating to an administrative 
determination as to whether the authorizations for con­
struction of the trans-Alaska oil pipeline shall be issued.

(d) The actions taken pursuant to this title which 
relate to the construction and completion of the pipeline 
system, and to the applications filed in connection there­
with necessary to the pipeline’s operation at full capacity, 
as described in the Final Environmental Impact State­
ment of the Department of the Interior, shall be taken 
without further action under the National Environmental 
Policy Act of 1969; and the actions of the Federal officers 
concerning the issuance of the necessary rights-of-way, 
permits, leases, and other authorizations for construction



47a

and initial operation at full capacity of said pipeline 
system shall not be subject to judicial review under 
any law except that claims alleging the invalidity of this 
section may be brought within sixty days following its 
enactment, and claims alleging that an action will deny 
rights under the Constitution of the United States, or 
that the action is beyond the scope of authority con­
ferred by this title, may be brought within sixty days 
following the date of such action. A claim shall be barred 
unless a complaint is filed within the time specified. 
Any such complaint shall be filed in a United States 
district court, and such court shall have exclusive juris­
diction to determine such proceeding in accordance with 
the procedures hereinafter provided, and no other court 
of the United States, of any State, territory, or posses­
sion of the United States, or of the District of Columbia, 
shall have jurisdiction of any such claim whether in a 
proceeding instituted prior to or on or after the date 
of the enactment of this Act. Any such proceeding shall 
be assigned for hearing at the earliest possible date, shall 
take precedence over all other matters pending on the 
docket of the district court at that time, and shall be 
expedited in every way by such court. Such court shall 
not have jurisdiction to grant any injunctive relief 
against the issuance of any right-of-way, permit, lease, 
or other authorization pursuant to this section except 
in conjunction with a final judgment entered in a case 
involving a claim filed pursuant to this section. Any 
review of an interlocutory or final judgment, decree, or 
order of such district court may be had only upon direct 
appeal to the Supreme Court of the United States.

(c) The Secretary of the Interior and the other Fed­
eral officers and agencies are authorized at any time 
when necessary to protect the public interest, pursuant 
to the authority of this section and in accordance with 
its provisions, to amend or modify any right-of-way,



48a

permit, lease, or other authorization issued under this 
title.

L i a b i l it y

Sec. 204. (a) (1) Except when the holder of the pipe­
line right-of-way granted pursuant to this title can 
prove that damages in connection with or resulting from 
activities along or in the vicinity of the proposed trans- 
Alaskan pipeline right-of-way were caused by an act 
of war or negligence of the United States, other govern­
ment entity, or the damaged party, such holder shall be 
strictly liable to all damaged parties, public or private, 
without regard to fault for such damages, and with­
out regard to ownership of any affected lands, struc­
tures, fish, wildlife, or biotic or other natural resources 
relied upon by Alaska Natives, Native organizations, or 
others for subsistence or economic purposes. Claims for 
such injury or damages may be determined by arbitra­
tion or judicial proceedings.

(2) Liability under paragraph (1) of this subsection 
shall be limited to $50,000,000 for any one incident, and 
the holders of the right-of-way or permit shall be liable 
for any claim allowed in proportion to their ownership 
interest in the right-of-way or permit. Liability of such 
holders for damages in excess of $50,000,000 shall be in 
accord with ordinary rules of negligence.

(3) In any case where liability without fault is im­
posed pursuant to this subsection and the damages in­
volved were caused by the negligence of a third party, 
the rules of subrogation shall apply in accordance with 
the law of the jurisdiction where the damage occurred.

(4) Upon order of the Secretary, the holder of a right- 
of-way or permit shall provide emergency subsistence and 
other aid to an affected Alaska Native, Native organiza­
tion, or other person pending expeditious filing of, and 
determination of, a claim under this subsection.



49a

(5) Where the State of Alaska is the holder of a right- 
of-way or permit under this title, the State shall not be 
subject to the provisions of subsection 204(a), but the 
holder of the permit or right-of-way for the trans-Alaska 
pipeline shall be subject to that subsection with respect 
to facilities constructed or activities conducted under 
rights-of-way or permits issued to the State to the ex­
tent that such holder engages in the construction, opera­
tion, maintenance, and termination of facilities, or in 
other activities under rights-of-way or permits issued to 
the State.

(b) If any area within or without the right-of-way 
or permit area granted under this title is polluted by any 
activities conducted by or on behalf of the holder to 
whom such right-of-way or permit was granted, and 
such pollution damages or threatens to damage aquatic 
life, wildlife, or public or private property, the control 
and total removal of the pollutant shall be at the ex­
pense of such holder, including any administrative and 
other costs incurred by the Secretary or any other Federal 
officer or agency. Upon failure of such holder to ade­
quately control and remove such pollutant, the Secretary, 
in cooperation with other Federal, State, or local agencies, 
or in cooperation with such holder, or both, shall have 
the right to accomplish the control and removal at the 
expense of such holder.

(c) (1) Notwithstanding the provisions of any other 
law, if oil that has been transported through the trans- 
Alaska pipeline is loaded on a vessel at the terminal 
facilities of the pipeline, the owner and operator of the 
vessel (jointly and severally) and the Trans-Alaska Pipe­
line Liability Fund established by this subsection, shall 
be strictly liable without regard to fault in accordance 
with the provisions of this subsection for all damages, 
including clean-up costs, sustained by any person



50a

or entity, public or private, including residents of Canada, 
as the result of discharges of oil from such vessel.

(2) Strict liability shall not be imposed under this 
subsection if the owner or operator of the vessel, or the 
Fund, can prove that the damages were caused by an act 
of war or by the negligence of the United States or 
other governmental agency. Strict liability shall not be 
imposed under this subsection with respect to the claim 
of a damaged party if the owner or operator of the 
vessel, or the Fund, can prove that the damage was 
caused by the negligence of such party.

(3) Strict liability for all claims arising out of any 
one incident shall not exceed $100,000,000. The owner 
and operator of the vessel shall be jointly and severally 
liable for the first $14,000,000 of such claims that are 
allowed. Financial responsibility for $14,000,000 shall be 
demonstrated in accordance with the provisions of section 
311 (p) of the Federal Water Pollution Control Act, as 
amended (33 U.S.C. 1321 (p)) before the oil is loaded. 
The Fund shall be liable for the balance of the claims 
that are allowed up to $100,000,000. If the total claims 
allowed exceed $100,000,000, they shall be reduced pro­
portionately. The unpaid portion of any claim may be 
asserted and adjudicated under other applicable Federal 
or state law.

(4) The Trans-Alaska Pipeline Liability Fund is here­
by established as a non-profit corporate entity that may 
sue and be sued in its own name. The Fund shall be 
administered by the holders of the trans-Alaska pipeline 
right-of-way under regulations prescribed by the Sec­
retary. The Fund shall be subject to an annual audit by 
the Comptroller General, and a copy of the audit shall 
be submitted to the Congress.

(5) The operator of the pipeline shall collect from the 
owner of the oil at the time it is loaded on the vessel



51a

a fee of five cents per barrel. The collection shall cease 
when $100,000,000 has been accumulated in the Fund, 
and it shall be resumed when the accumulation in the 
Fund falls below $100,000,000.

(6) The collections under paragraph (5) shall be de­
livered to the Fund. Costs of administration shall be paid 
from the money paid to the Fund, and all sums not 
needed for administration and the satisfaction of claims 
shall be invested prudently in income-producing securities 
approved by the Secretary. Income from such securities 
shall be added to the principal of the Fund.

(7) The provisions of this subsection shall apply only 
to vessels engaged in transportation between the terminal 
facilities of the pipeline and ports under the jurisdic­
tion of the United States. Strict liability under this sub­
section shall cease when the oil has first been brought 
ashore at a port under the jurisdiction of the United 
States.

(8) In any case where liability without regard to fault 
is imposed pursuant to this subsection and the damages 
involved were caused by the unseaworthiness of the vessel 
or by negligence, the owner and operator of the ves­
sel, and the Fund, as the case may be, shall be subro­
gated under applicable State and Federal lawTs to the 
rights under said laws of any person entitled to re­
covery hereunder. If any subrogee brings an action 
based on unseaworthiness of the vessel or negligence of 
its owner or operator, it may recover from any affiliate 
of the owner or operator, if the respective owner or 
operator fails to satisfy any claim by the subrogee al­
lowed under this paragraph.

(9) This subsection shall not be interpreted to pre­
empt the field of strict liability or to preclude any State 
from imposing additional requirements.



52a

(10) If the Fund is unable to satisfy a claim asserted 
and finally determined under this subsection, the Fund 
may borrow the money needed to satisfy the claim from 
any commercial credit source, at the lowest available rate 
of interest, subject to approval of the Secretary.

(11) For purposes of this subsection only, the term 
“affiliate” includes—

(A) Any person owned or effectively controlled 
by the vessel owner or operator; or

(B) Any person that effectively controls or has 
the power effectively to control the vessel owner or 
operator by—

(i) stock interest, or
(ii) representation on a board of directors or 

similar body, or
(iii) contract or other agreement with other 

stockholders, or
(iv) otherwise; or

(C) any person which is under common ownership 
or control with the vessel owner or operator.

(12) The term “person” means an individual, a cor­
poration, a partnership, an association, a joint-stock com­
pany, a business trust, or an unincorporated organization.

A n t i t r u s t  L a w s

Sec. 205. The grant of a right-of-way, permit, lease, 
or other authorization pursuant to this title shall grant no 
immunity from the operation of the Federal anti-trust 
laws.

R o a d s  a n d  A ir p o r t s

Sec. 206. A right-of-way, permit, lease, or other au­
thorization granted under section 203(b) for a road or



53a

airstrip as a related facility of the trans-Alaska pipe­
line may provide for the construction of a public road 
or airstrip.

TITLE III—NEGOTIATIONS WITH CANADA

Sec. 301. The President of the United States is au­
thorized and requested to enter into negotiations with the 
Government of Canada to determine—

(a) the willingness of the Government of Canada 
to permit the construction of pipelines or other trans­
portation systems across Canadian territory for the 
transport of natural gas and oil from Alaska’s 
North Slope to markets in the United States, in­
cluding the use of tankers by way of the Northwest 
Passage;

(b) the need for intergovernmental understand­
ings, agreements, or treaties to protect the interests 
of the Governments of Canada and the United 
States and any party or parties involved with the 
construction, operation, and maintenance of pipe­
lines or other transportation systems for the trans­
port of such natural gas or oil;

(c) the terms and conditions under which pipe­
lines or other transportation systems could be con­
structed across Canadian territory;

(d) the desirability of undertaking joint studies 
and investigations designed to insure protection of 
the environment, reduce legal and regulatory uncer­
tainty, and insure that the respective energy require­
ments of the people of Canada and of the United 
States are adequately met;

(c) the quantity of such oil and natural gas from 
the North Slope of Alaska for which the Government 
of Canada would guarantee transit; and



54a

(f) the feasibility, consistent with the needs of 
other sections of the United States, of acquiring ad­
ditional energy from other sources that would make 
unnecessary the shipment of oil from the Alaska 
pipeline by tanker into the Puget Sound area.

The President shall report to the House and Senate 
Committees on Interior and Insular Affairs the actions 
taken, the progress achieved, the areas of disagreement, 
and the matters about which more information is needed, 
together with his recommendations for further action.

Sec. 302. (a) The Secretary of the Interior is au­
thorized and directed to investigate the feasibility of 
one or more oil or gas pipelines from the North Slope of 
Alaska to connect with a pipeline through Canada that 
will deliver oil or gas to United States markets.

(b) All costs associated with making the investigations 
authorized by subsection (a) shall be charged to any 
future applicant who is granted a right-of-way for one 
of the routes studied. The Secretary shall submit to the 
House and Senate Committees on Interior and Insular 
Affairs periodic reports of his investigation, and the 
final report of the Secretary shall be submitted within 
two years from the date of this Act.

Sec. 303. Nothing in this title shall limit the au­
thority of the Secretary of the Interior or any other Fed­
eral official to grant a gas or oil pipeline right-of-way 
or permit which he is otherwise authorized by law to 
grant.

TITLE IV—MISCELLANEOUS

V e s s e l  C o n s t r u c t io n  S t a n d a r d s

Sec. 401. Section 4417a of the Revised Statutes of the 
United States (46 U.S.C. 391a), as amended by the Ports



55a

and Waterways Safety Act of 1972 (86 Stat. 424, Public 
Law 92-340),9:3 is hereby amended as follows:

“ (C) Rules and regulations published pursuant to sub­
section (7) (A) shall be effective not earlier than Janu­
ary 1, 1974, with respect to foreign vessels and United 
States-flag vessels operating in the foreign trade, unless 
the Secretary shall earlier establish rules and regulations 
consonant with international treaty, convention, or agree­
ment, which generally address the regulation of similar 
topics for the protection of the marine environment. In 
absence of the promulgation of such rules and regulations 
consonant with international treaty, convention, or agree­
ment, the Secretary shall establish an effective date not 
later than January 1, 1976, with respect to foreign ves­
sels and United States-flag vessels operating in the for­
eign trade, for rules and regulations previously pub­
lished pursuant to this subsection (7) which he then 
deems appropriate. Rules and regulations published pur­
suant to subsection (7) (A) shall be effective not later 
than June 30, 1974, with respect to United States-flag 
vessels engaged in the coastwise trade.”

V e s s e l  T r a f f ic  C o n t r o l

Sec. 402. The Secretary of the Department in which 
the Coast Guard is operating is hereby directed to estab­
lish a vessel traffic control system for Prince William 
Sound and Valdez, Alaska, pursuant to authority con­
tained in title I of the Ports and Waterways Safety Act 
of 1972 (86 Stat. 424, Public Law 92-340).

C iv il  R ig h t s

Sec. 403. The Secretary of the Interior shall take 
such affirmative action as he deems necessary to assure 
that no person shall, on the grounds of race, creed, color,

46 U.S.C.A. § 391a.



56a

national origin, or sex, be excluded from receiving, or 
participating in any activity conducted under, any per­
mit, right-of-way, public land order, or other Federal 
authorization granted or issued under title II. The Sec­
retary of the Interior shall promulgate such rules as 
he deems necessary to carry out the purposes of this sub­
section and may enforce this subsection, and any rules 
promulgated under this subsection, through agency and 
department provisions and rules which shall be similar 
to those established and in effect under title VI of the 
Civil Rights Act of 1964.

C o n f i r m a t i o n  o f  t h e  H e a d  o f  t h e  M i n i n g  
E n e r g y  P o l ic y  O f f i c e

Sec. 404. The Director of the Energy Policy Office in 
the Executive Office of the President shall be appointed 
by the President, by and with the advice and con­
sent of the Senate: Provided, That if any individual 
who is serving in this office on the date of enactment of 
this Act is nominated for such position, he may continue 
to act unless and until such nomination shall be disap­
proved by the Senate.

C o n f i r m a t i o n  o f  t h e  H e a d  o f  t h  M i n i n g  
E n f o r c e m e n t  a n d  S a f e t y  A d m in is t r a t io n

Sec. 405. The head of the Mining Enforcement and 
Safety Administration established pursuant to Order 
Numbered 2953 of the Secretary of the Interior issued 
in accordance with the1 authority provided by section 2 
of Reorganization Plan Numbered 3 of 1950 (64 Stat. 
1262)94 shall be appointed by the President, by and with 
the advice and consent of the Senate: Provided, That 
if any individual who is serving in this office on the date

9411 U.S.C.A. § 1451 note.



57a

of enactment of this Act is nominated for such position, 
he may continue to act unless and until such nomination 
shall be disapproved by the Senate.

E x e m p t i o n  o f  F ir s t  S a l e  o f  C r u d e  O i l  a n d  N a t u r a l  
G a s  o f  C e r t a in  L e a s e s  F r o m  P r ic e  R e s t r a in t s  

a n d  A l l o c a t io n  P r o g r a m s

Sec. 406. (a) The first sale of crude oil and natural 
gas liquids produced from any lease whose average daily 
production of such substances for the preceding calendar 
month does not exceed ten barrels per well shall not be 
subject to price restraints established pursuant to the 
Economic Stabilization Act of 1970, as amended, or to 
any allocation program for fuels or petroleum estab­
lished pursuant to that Act or to any Federal law for 
the allocation of fuels or petroleum.

(b) To qualify for the exemption under this section, a 
lease must be operating at the maximum feasible rate of 
production and in accord with recognized conservation 
practices,

(c) The agency designated by the President or by law 
to implement any such fuels or petroleum allocation pro­
gram is authorized to conduct inspections to insure com­
pliance with this section and shall promulgate and cause 
to be published regulations implementing the provisions 
of this section.

A d v a n c e  P a y m e n t s  t o  A l a s k a  N a t iv e s

Sec. 407. (a) In view of the delay in construction of 
a pipeline to transport North Slope crude oil, the sum, of 
$5,000,000 is authorized to be appropriated from the 
United States Treasury into the Alaska Native Fund 
every six months of each fiscal year beginning with the 
fiscal year ending June 30, 1976, as advance payments



58a

chargeable against the revenues to be paid under section 
9 of the Alaska Native Claims Settlement Act, until such 
time as the delivery of North Slope crude oil to a pipe­
line is commenced.

(b) Section 9 of the Alaskan Native Claims Settle­
ment Act 95 is amended by striking the language in sub­
section (g) thereof and substituting the following lan­
guage: “The payments required by this section shall 
continue only until a sum of $500,000,000 has been paid 
into the Alaska Native Fund less the total of advance 
payments paid into the Alaska Native Fund pursuant 
to section 407 of the Trans-Alaska Pipeline Authoriza­
tion Act. Thereafter, payments which would otherwise 
go into the Alaska Native Fund will be made to the 
United States Treasury as reimbursement for the ad­
vance payments authorized by section 407 of the Trans- 
Alaskan Pipeline Authorization Act. The provisions of 
this section shall no longer apply, and the reservation 
required in patents under this section shall be of no fur­
ther force and effect, after a total sum of $500,000,000 
has been paid to the Alaska Native Fund and to the 
United States Treasury pursuant to this subsection.”

* * * *

E q u it a b l e  A l l o c a t io n  o p  N o r t h  S l o p e  C r u d e  O il

Sec. 410. The Congress declares that the crude oil on 
the North Slope of Alaska is an important part of the 
Nation’s oil resources, and that the benefits of such crude 
oil should be equitably shared, directly or indirectly, by 
all regions of the country. The President shall use any 
authority he may have to insure an equitable allocation 
of available North Slope and other crude oil resources 
and petroleum products among all regions and all of the 
several States.

95 43 U.S.C.A. § 1608 (g ).



59a

S e p a r a b il it y

See. 411. If any provision of this Act or the applica­
bility thereof is held invalid the remainder of this Act 
shall not be affected thereby.

Approved Nov. 16, 1973.



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