Justia Federal District Court Opinions

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

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

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

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

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

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

Although the parties have briefed and argued the legality of permits and rights-of-way covering land on which Alyeska proposes to locate a variety of other facilities, including remote control block valves, construction camps, material sites, permanent and temporary access roads, pipe storage sites, and temporary airstrips, we have decided not to rule on these issues on this appeal, primarily because formal applications for these rights-of-way and permits have not yet been made.¹ With respect to the grant of a special land use permit by the Forest Supervisor, we find that the permit is likely to become moot in the near future and therefore do not decide that issue.

Finally, as to NEPA, since it is desirable that we expedite our decision, since the project will be enjoined in any event under our ruling on the Mineral Leasing Act issues, and since the posture of the NEPA issues may change before those issues are ripe for adjudication, we decline to pass on them at this time.

Our opinion infra is divided into five parts. The first discusses the legality of the Special Land Use Permit for construction purposes proposed to be issued by Interior to Alyeska. Part II discusses the other rights-of-way to be issued to Alyeska-for pumping stations and communications facilities. The third part concerns the rights-of-way to be issued to the State of Alaska for a public highway, for several airports, and for the free use of gravel. Part IV discusses the issues raised by the Special Land Use Permit for the tank farm. Finally, Part V explains our reasons for not deciding the NEPA issues in this case. Before turning to this analysis, we present a short factual introduction, relevant primarily to the first three parts of our opinion.

Factual Introduction

Prudhoe Bay, on the North Slope of Alaska, was the site of a major oil field discovery in 1968. Following that discovery several oil companies, acting through their agent Trans Alaska Pipeline System (TAPS), predecessor of appellee Alyeska, developed plans to transport the oil from Prudhoe Bay to markets in the lower 48 states. As finalized, the plans involved constructing a 48-inch diameter pipeline to extend 789 miles from Prudhoe Bay to the Port of Valdez on the Pacific Ocean, a route crossing lands owned by the United States for about 641 miles. The pipeline would have an ultimate capacity of carrying 2,000,000 barrels of crude oil per day. Oil arriving at Valdez would be loaded on to tankers for shipment to ports such as Seattle, San Francisco and Los Angeles.

Because the proposed pipeline would cross lands owned by the United States, the oil companies had to seek rights-of-way from the agency entrusted with management of the lands to be crossed, the Bureau of Land Management of the Department of the Interior. In June 1969 TAPS submitted its first application,² requesting a 54-foot primary right-of-way, an additional 46-foot-wide right-of-way parallel and adjacent to the 54-foot right-of-way for construction purposes, and a second additional right-of-way 100 feet in width for a construction road to run from Prudhoe Bay to the town of Livengood, a point somewhat less than half way to Valdez (the pipeline route south from Livengood to Valdez was already serviced by a state highway). In addition, the application requested temporary use, for construction purposes, of 200 to 500 feet on each side of all river and stream crossings, and for land on which to locate temporary construction camps.

Having had the foresight to anticipate that development of a project of this magnitude would pose environmental, technological, social and legal problems, then Secretary of the Interior Walter Hickel had, on April 18, 1969, established within the Interior Department a North Slope Task Force. At the President's request, in May 1969 that Task Force was enlarged into a Governmentwide group, spanning many Government agencies. On September 15, 1969 the Task Force submitted its Preliminary Report to the President,³ outlining the problems posed by development of the pipeline. Among these problems were "Legal and Procedural Matters" and within this category was a discussion of the legal problems posed by the then pending right-of-way application:

"Width of the right-of-way: The application requests a 54-foot wide pipeline right-of-way together with an additional parallel and adjacent 46-foot right-of-way. Further, 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 pipeline 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."⁴

Apparently aware of the legal problems posed by its earlier application, TAPS submitted an amended application in December 1969.⁵ This application purported to request only a single right-of-way 54 feet in width, the legality of which has never been questioned under the Mineral Leasing Act. Concurrently with this amended application, however, TAPS submitted two separate applications for "Special Land Use Permits." The first Special Land Use Permit (we will hereafter use the unfortunate acronym SLUP) application requested "additional access and construction space extending 11 feet on one side and 35 feet on the opposite side" of the oil pipeline right-of-way. The second SLUP application requested an area "200 feet in width to contain the pipeline construction surface and haul road" to run from Prudhoe Bay to Livengood.

On March 26, 1970 plaintiffs-appellants-The Wilderness Society, Friends of the Earth, and Environmental Defense Fund, Inc.-filed their complaint for declaratory and injunctive relief against appellee Secretary of the Interior. They alleged that the Secretary intended "within the immediate future to issue right-of-way and/or special use permits to TAPS for the purposes of the pipeline" and that this action would violate the width restrictions of Section 28 of the Mineral Leasing Act of 1920. On April 3, 1970 Judge McGuire denied plaintiffs'-appellants' request for a temporary restraining order. On April 23, 1970, after oral argument on plaintiffs'-appellants' motion for a preliminary injunction, Judge Hart issued his findings of fact and conclusions of law. See Wilderness Society v. Hickel, supra. Judge Hart found that the 54-foot right-of-way permit, the 46-foot SLUP for access and construction space, and the 200-foot SLUP for a construction surface and haul road constituted, "in effect, a single application for a pipe line right-of-way" and that when considered together the applications requested "a pipe line right-of-way in excess of the width permissible under Section 28 of the Mineral Leasing Act of 1920, 30 U.S.C. Sec. 185." 325 F.Supp. at 424. Accordingly, Judge Hart issued a preliminary injunction against issuance of the permits and rights-of-way.

During the 16-month interval between issuance of the preliminary injunction and the hearing on the permanent injunction, there were several significant developments affecting the Mineral Leasing Act issues. In March 1971 Alyeska filed an application for rights-of-way for 26 communications sites.⁶ In June 1971 the State of Alaska, intervenor-appellee in these cases, entered into a contract with Alyeska⁷ whereunder Alyeska agreed to build a public highway to run from Livengood to Prudhoe Bay, along a route almost identical with the route of the 200-foot-wide haul road proposed in TAPS' SLUP application of December 1971. In this contract Alaska agreed to be responsible for securing all rights-of-way across federal land necessary for the highway, and on July 28, 1971 the State of Alaska applied to the Bureau of Land Management for a highway right-of-way across public lands for this road.⁸ Following this application, on August 18, 1971 Alyeska withdrew its SLUP application for the 200-foot haul road.⁹

Alaska has also submitted applications to the Secretary of the Interior for leases of public lands for construction of three airports along the pipeline route.¹⁰ Alyeska has entered into a contract with Alaska whereby Alyeska will construct these airports and operate them as public airports during construction of the pipeline.¹¹ Also, Alaska has applied for a series of free-use permits for gravel, the gravel to be used in construction of the above described highway and airports.¹²

On February 4, 1972 Alyeska filed an amendment to its December 1971 application for a SLUP for construction purposes.¹³ The amendment, in contrast to the December SLUP application, did not specify the amount of land to be covered by the SLUP but rather requested "the temporary use of such minimum amounts of land under the jurisdiction of the Secretary of the Interior as may be reasonably necessary for construction of a proposed 48"' diameter oil pipeline * * *."¹⁴ Also on February 4, 1972 Alyeska filed an amended application requesting rights-of-way for 10 pumping stations.¹⁵

On May 11, 1972, through a News Release,¹⁶ the Secretary of the Interior announced his decision to grant the necessary permits for the proposed pipeline. It is the lawfulness of this decision which is at issue in these cases. On August 15, 1972 Judge Hart dissolved the preliminary injunction, denied the application for a permanent injunction, and dismissed appellants' complaints.

A. Introduction.

The pending application by appellee Alyeska to the Bureau of Land Management requests, as indicated above, "the temporary use of such minimum amounts of land under the jurisdiction of the Secretary of the Interior as may be reasonably necessary for construction of a proposed 48" diameter oil pipeline * * *."¹⁷ The application states that "[a]fter construction has been completed, no continuing interest in this additional space is or will be claimed by Alyeska. * * * Alyeska recognizes that any authorization to use the space * * * will remain at all times revocable at will by the government, without cause or justification, and without giving rise to any claim against the government arising out of such revocation."¹⁸

While the application states that "[t]he precise amount of land required for construction purposes may only be approximated at this time,"¹⁹ it also provides what all parties agree are fair estimates of the amount of space to be used outside and in addition to the basic 54-foot right-of-way, the legality of which is not challenged under the Mineral Leasing Act. The application states:

"* * * [A]pproximately 85 per cent of the right-of-way (approximately 662 miles) will require the temporary use of widths ranging from 46 to 146 feet. Approximately twothirds of this distance (about 456 miles) will require temporary widths of 96 feet or less. Along the remainder of the route, instances will occur where greater widths will be necessary, such as at river crossings, road crossings, and in mountainous terrain. Temporary widths exceeding 246 feet are expected to comprise only about 28 miles of the 789-mile pipeline route, occurring primarily at river crossings and in particularly difficult terrain."²⁰

(Footnote omitted.)

In order to understand what the SLUP will be used for, why it is needed, and whether it is legal, it is necessary to consider some of the mechanics of pipeline construction. Most of the proposed pipeline will be buried underground, the remainder being placed on a gravel berm or on raised pilings. We will only describe construction under the burial mode since construction under the other modes differs only slightly with respect to the amount of land used. Construction proceeds step-by-step through a number of distinct operations. First, prior to construction a centerline is surveyed and marked. A construction zone is cleared and graded, and the ditch for the pipe is dug. The pipe, valves, fittings and coating materials are then transported to the job site and the pipe is strung along the open ditch. Frequently it is necessary to bend the pipe by machine at the site to fit the alignment and contour of the ditch. Strings of pipe are then aligned, clamped, and welded together. Joined sections of pipe are lowered into the ditch by heavy sideboom tractors. These sections are then joined to the pipe already in place and the pipe receives its final coatings. The ditch is then backfilled and compacted.

A minimum work area of about 55 feet on one side of the pipe is necessary along the entire length of the pipe. The modern method of pipeline construction requires use of bulky and heavy equipment designed to operate from one side of the pipe only. It is essential to provide adequate vehicle passing space along the entire length of the proposed route since pipe sections must constantly be trucked to the head of the construction area, and sideboom tractors which have finished lifting and lowering sections of pipe must pass ahead of others still engaged in such operations to take up new positions as construction of the line advances. Space is needed for the transport of men and equipment, and safety margins must be provided to avoid collisions.

The land in most areas along the proposed route is permafrost-that is, land which absent human interference remains frozen throughout the year. To prevent thawing and other disturbance of the permafrost during construction in these areas, and to prevent the sinking of heavy equipment, a gravel work pad must be constructed over the working area. The pad is basically a gravel road with gravel compacted to a depth of from 18 inches to five feet.²¹ Of the total 9600 acres of land estimated to be covered by the SLUP, about 3600 acres represent land to be used for this construction area and work pad.

The remaining 6000 acres will be used in other, construction-related ways. First, whenever the pipeline passes through hilly or mountainous areas, or where it crosses a river or road, it is often necessary to modify the grade in areas adjacent to the actual construction area to assure slope stability and to provide for a level construction area. Grading these adjacent areas produces large amounts of rock, dirt and gravel, known as cut spoil, which must be piled up on the side of the pipeline opposite the construction side. In addition, the material removed from the ground when the ditch is dug and displaced by the pipeline when it is placed in the ditch-known as ditch spoil-must also be piled up opposite the construction side of the pipeline. In laymen's terms, then, the other 6000 acres will be used to grade away mountains and hills in some areas, and to pile their remains, along with ditch spoil, in others.

B. Section 28 of the Mineral Leasing Act.

Section 28 of the Mineral Leasing Act of 1920, 30 U.S.C. Sec. 185, provides in pertinent part:

"Rights-of-way through the public lands, including the forest reserves of the United States, may be granted by the Secretary of the Interior for pipeline purposes for the transportation of oil or natural gas to any applicant possessing the qualifications provided in section 181 of this title, 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, application, and use as may be prescribed by the Secretary of the Interior and upon the express condition that such pipe lines shall be constructed, operated, and maintained as common carriers and shall accept, convey, transport, or purchase without discrimination, oil or natural gas produced from Government lands in the vicinity of the pipe line in such proportionate amounts as the Secretary of the Interior may, after a full hearing with due notice thereof to the interested parties and a proper finding of facts, determine to be reasonable: * * * Provided further, 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. 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."

Appellants contend that the SLUP for the construction zone violates that portion of Section 28 which provides "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." That is, appellants claim that the SLUP is a "right-of-way" "for the transportation of oil" which violates one of the "provisions, limitations, and conditions" of Section 28 in that it exceeds the statutory width limitation "to the extent of the ground occupied by the said pipe line and twenty-five feet on each side of the same * * *."

Appellees' response also focuses on a literal reading of the statutory language. Interior argues that a temporary, revocable permit is not a right-of-way. In its view, a right-of-way is an easement, a permanent interest in land. A revocable permit, on the other hand, is like a license which is not an interest in land. A permit, by this reasoning, cannot be a right-of-way. Alyeska adopts a similar approach. In its view "[f]ailure to make a distinction between acts which convey an interest in land and those which merely allow its use is the fundamental flaw in Wilderness Society's arguments." "The term [right-of-way] implies conveyance of an interest in the land, rather than a mere license to use the land." In support of their position, appellees cite several cases in which a statutory grant of a right-of-way was construed to grant a permanent easement. See, e. g., Great Northern Ry Co. v. United States, 315 U.S. 262, 271, 62 S.Ct. 529, 86 L.Ed. 836 (1942); Panhandle Eastern Pipe Line Co. v. State Highway Comm'n, 294 U.S. 613, 618, 55 S.Ct. 563, 79 L.Ed. 1090 (1935); United States v. Welch, 217 U. S. 333, 339, 30 S.Ct. 527, 54 L.Ed. 787 (1910).

Although we base our statutory interpretation not merely on a literal reading of the statute but on other indicia of legislative intent, we conclude that a literal reading indicates a result favorable to appellants. To begin with, it seems clear that a revocable permit to use land is a right-of-way. Most statutory grants of rights-of-way, it is true, are construed as grants of permanent easements, but rights-of-way are occasionally construed as revocable licenses,²² and, more importantly, there is nothing in the accepted definition of the phrase "right-of-way" which restricts its application to permanent interests in land. A right-of-way is most typically defined as the right of passage over another person's land.²³ It has been said that "[a] right of way is nothing more than a special and limited right of use,"²⁴ a definition that sounds remarkably similar to the special land use permit issued in this case. There is no temporal element in these definitions. Both a revocable license and a permanent easement fall within their language. The regulations of the Bureau of Land Management recognize this when they define the term "right-of-way" as follows: " 'Right-of-way' includes license, permit, or easement, as the case may be * * *." 43 C.F.R. Sec. 2800.0-5(i) (1972).²⁵

Appellees also argue that a revocable permit cannot be a right-of-way because the latter term refers to an interest in land, and licenses are not interests in land. An examination of relevant authority, however, indicates that licenses are indeed interests in land. They may not be the kind of interests in land that must be created in writing or recorded to be enforced,²⁶ or the kind of interests in land for which compensation must be paid following condemnation for public use,²⁷ but they are nevertheless interests in land. See 3 R. Powell, Real Property p 428 at 526.63 (1970); 2 A. Casner (ed.), American Law of Property Sec. 8.110 at 317 (1952). The Restatement provides: "All 'licenses,' as the term is used in this Chapter, are 'interests in land' as that phrase is used in the Restatement of Property." Restatement of Property Sec. 512, Comment c, at 3116 (1944). In fact, the affidavit of an individual knowledgeable about customary practices in the oil pipeline industry, introduced into the record by appellees, supports the view that a grant of permission to use land for construction purposes is a grant of an interest in land. Thus where construction of a pipeline takes place over privately owned property, according to this affidavit, space necessary for construction is "purchased or condemned * * * for the time necessary for construction of the pipeline."²⁸

Appellees also make the argument that the land covered by the SLUP will not be used for "pipe-line purposes" or for "the transportation of oil" within the meaning of Section 28. Interior argues that "[t]he temporary revocable permits do not pertain to land to be used for the transportation of oil or natural gas." Alyeska argues that "[i]f one applies normal rules of construction, Congress must have intended something by the use of the phrase 'pipe line purposes' that was not synonymous with construction and maintenance." But we would have to stretch the statutory language totally beyond its natural meaning to conclude that the SLUP in this case is not being issued for "pipe-line purposes." As the United States Supreme Court had occasion to note, "This Court naturally does not review congressional enactments as a panel of grammarians; but neither do we regard ordinary principles of English prose as irrelevant to a construction of those enactments." Flora v. United States, 362 U.S. 145, 150, 80 S.Ct. 630, 633, 4 L.Ed.2d 623 (1960). It simply makes no sense to insist on the one hand, as all parties do, that use of this land is absolutely necessary if the pipeline is to be built and oil to be transported, and to claim on the other hand that the land will not be used for pipeline purposes or for the transportation of oil. One of the functions of statutory rights-of-way is to allow room for construction activities.²⁹ Indeed, the Bureau's own contemporaneous interpretation of Section 28 stated that the purpose of the right-of-way was for "construction, maintenance, and operation of the pipe line." 47 Int.Dept.Dec. re Pub. Lands 437, 461 (March 11, 1920).³⁰

It is also argued that the statutory requirement of compliance with "the provisions, limitations, and conditions" of Section 28 is concerned solely with the condition that pipelines be common carriers. While it is clear that the common carrier provision was one of Congress' chief concerns, nevertheless the statutory language plainly bars any pipeline right-of-way which does not comply with all "provisions, limitations, and conditions," including limitation of the right-of-way to 25 feet.

In conclusion, under a literal reading of Section 28 the proposed SLUP is a "right-of-way" "for the transportation of oil" which is not "subject to" one of "the provisions, limitations, and conditions" of Section 28. Of course, we cannot end our inquiry with this simplistic and literal approach.³¹ On occasion we have paid lip service to the rule that where the language of a statute is clear and unambiguous on its face it cannot be controverted by seeking to show inconsistent legislative intent, see Sea-Land Service, Inc. v. F.M. C., 131 U.S.App.D.C. 246, 250, 404 F.2d 824, 828 (1968), but we have also faced up to the reality that "the 'plain meaning' doctrine has always been subservient to a truly discernible legislative purpose however discerned," District of Columbia v. Orleans, 132 U.S.App.D.C. 139, 141, 406 F.2d 957, 959 (1968). Regardless of how plainly we might feel the SLUP is barred by the literal terms of Section 28, we must respond to what seems to us to be the crucial contention in the Mineral Leasing Act aspects of this case. All parties agree that it is impossible to build large-diameter oil pipelines if construction is to be limited to 25 feet on either side of the pipeline. Appellees then argue that Congress must have intended Section 28 to include all those uses of land necessary to secure the central objective of allowing pipeline construction. Absent any other indication of what Congress in fact intended, settled maxims of statutory construction would probably lead us to accept this inference about congressional intent. Cf. United States v. State of Maryland for Use of Meyer, 121 U.S.App.D.C. 258, 260, 349 F.2d 693, 695 (1965). There is a presumption against construing a statute so as to render it ineffective. Bird v. United States, 187 U.S. 118, 124, 23 S.Ct. 42, 47 L.Ed. 100 (1902); United States v. Blasius, 2 Cir., 397 F.2d 203, 207 n.9 (1968), cert. dismissed, 393 U.S. 1008, 89 S.Ct. 615, 21 L.Ed.2d 557 (1969); United States v. Milk Distributors Ass'n, Inc., D.Md., 200 F.Supp. 792, 799 (1961); In re White, N.D.N.Y., 266 F.Supp. 863, 866 (1967). But conjecture and inference about the central purposes of Section 28 and what Congress "must have intended" are not necessary in this case, for we have firmer evidence of what Congress did in fact intend when it enacted the width limitation of Section 28, and it is to this legislative history that we now turn.

C. Legislative History of Section 28.

The Mineral Leasing Act of 1920, of which Section 28 is but a small and relatively minor part, was not the product of a single Congress. Other versions of the Act, substantially similar to the one finally adopted and containing provisions virtually identical with what is now Section 28, were introduced, reported out of Committee, and debated on the floor of Congress as early as 1914. See H.R. 16136, 63rd Cong. (various prints) (1914); H.R. 406, 64th Cong. (various prints) (1915-16); H.R. 3232, 65th Cong. (various prints) (1917); S. 2812, 65th Cong. (various prints) (1918). The legislative history of the bill that was finally enacted into law as the Mineral Leasing Act of 1920, S. 2775, 66th Cong., 2d Sess. (1920), contains no discussion of the width limitation in either the reports, the hearings, or the floor debates. The legislative history of similar bills in prior Congresses, however, is very revealing. Cf. United States v. Plesha, 352 U.S. 202, 205, 77 S.Ct. 275, 1 L.Ed.2d 254 (1957); United States v. Blasius, supra, 397 F.2d at 205-206.

As originally drafted Section 28 provided, not for 25 feet on either side of the pipeline, but for only 10 feet. See H.R. 16136, 63rd Cong., 2d Sess., Sec. 17 (April 29, 1914). The bill was referred to the House Committee on Public Lands and was reported therefrom with an amendment that would substitute "twenty" for "ten." See H.R. 16136, 63rd Cong., 3d Sess., Sec. 11 (February 2, 1915). When next introduced into Congress, the section again provided for only 10 feet. See H.R. 406, 64th Cong., 1st Sess., Sec. 18 (December 6, 1915). When this bill was reported from the House Committee on Public Lands, however, the width limitation provision was amended to change "ten" to "twenty-five." See H.R. 406, 64th Cong., 1st Sess., Sec. 13 (January 4, 1916). The bill was sent back to Committee again, and when reported the width limitation had been changed once more, this time from "twenty-five" to "twenty." See H.R. 406, 64th Cong., 1st Sess., Sec. 11 (March 30, 1916). When introduced in subsequent Congresses, however, and when reported from Committee and debated thereafter, the width limitation remained at 25 feet. See H.R. 3232, 65th Cong., Sec. 13 (various prints) (1917); S. 2812, 65th Cong., 2d Sess., Sec. 13 (May 14, 1918); S. 2775, 66th Cong., 1st Sess., Sec. 27 (August 15, 1919); S. 2775, 66th Cong., 1st Sess., Sec. 28 (October 21, 1919). This legislative history indicates that Congress placed some significance on the exact figure chosen. The number "twenty-five" was not pulled out of thin air, but was resolved upon after apparently careful deliberation. In view of the significance Congress seemed to place on the exact figure chosen, it seems unreasonable to conclude that Congress intended the interpretation put forth by appellees in these cases, for under that interpretation it is irrelevant whether the statute permits 10, 20 or 25 feet. If the statute allows one to use any land reasonably necessary to build a pipeline, what purpose is there in choosing 25 feet rather than 10? Cf. United States v. Blasius, supra, 397 F.2d at 207.

It is a well known maxim of statutory construction that all words and provisions of statutes are intended to have meaning and are to be given effect, and words of a statute are not to be construed as surplusage. See McDonald v. Thompson, 305 U.S. 263, 266, 59 S.Ct. 176, 83 L.Ed. 164 (1938); D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 76 L.Ed. 704 (1932); Klein v. Republic Steel Corp., 3 Cir., 435 F.2d 762, 765-766 (1970); Consolidated Flower Shipments, Inc.-Bay Area v. C. A.B., 9 Cir., 205 F.2d 449, 450 (1953). We should be particularly mindful of this maxim in cases such as these where there is specific evidence that Congress placed significance on the statutory language in dispute.

More than the bills themselves, the debates in the House of Representatives³² indicate that Congress intended all construction work to take place within the width limitation of the statute. As noted earlier, the first predecessor of Section 28 provided for only 10 feet. When this provision was first put before the House, Mr. Mondell, a Representative from Wyoming who continued to play an active role in the debates throughout the history of Section 28, proposed an amendment to be added to the provision:

"Provided, That nothing herein contained shall be held to repeal the provisions of the act approved May 21, 1896, entitled 'An Act to grant right of way over the public domain for pipe line in the States of Colorado or Wyoming,' but all pipe lines built under the provisions of that act shall be common carriers."³³

The act referred to in the proposed amendment is still codified at 43 U.S.C. Sec. 962 (1970), although the legislative history of Section 28 makes it questionable whether it is still in force.³⁴ It provides:

"The right of way through the public lands of the United States situate in the State of Colorado and in the State of Wyoming * * * is granted to any pipe-line company or corporation formed for the purpose of transporting oils * * * to the extent of the ground occupied by said pipe line and twenty-five feet on each side of the center line of the same; also the right to take from the public lands adjacent to the line of said pipe line, material, earth, and stone necessary for the construction of said pipe line."

Mr. Mondell supported his amendment as follows:

"The pipe lines that are really important, so far as the question of right of way is concerned, are the great carrying lines. There have already been two, over 60 miles long each, constructed in my State under the act that I have referred to. I think one of them cost $600,000. I do not know how much the other cost. Such lines are large. They are very expensive. * * * The provisions of this section are not sufficiently liberal to allow the construction of one of these great lines."³⁵

Congressman Mondell was asked whether a total space of 20 feet was not sufficient room in which to construct a pipeline. He responded:

"No; it is not wide enough to construct one of these great lines over a rough country. The width is not great enough, and there is no opportunity to get the necessary material from the adjacent lands. * * *"³⁶

Representative Taylor of Colorado said he believed the amendment offered by Mondell was a good one for, in his words,

"* * * I regret to see this law, which is applicable to the States of Colorado and Wyoming alone, thus wiped off the statute books, because it has been a good law and nobody has ever complained of it. It is a better law than this one. * * *"³⁷

But he said he would not support the amendment because he did not believe in special legislation for one or two states. He concluded: "I feel that if this proposed law works all right we can operate under it in our State, and if it does not, then we hope to come back here some time and amend it."³⁸ During later debate on the provision, Taylor specifically referred to the views of the House Committee on Public Lands on this matter:

"* * * I think that law [Section 962] ought to be inserted in this bill in lieu of section 17, but at the same time the committee has taken a different view, and I am not disposed to quarrel with the committee about the matter. * * * I think the provisions of this section in the bill, the same as some other sections, should be more liberal. But I have expressed myself on this bill at great length in my minority report and in my speech on the bill, and I will therefore not offer any special opposition to this section at this time."³⁹

A vote was then taken on the proposed amendment and it was defeated.

Realizing that to some extent the opposition to his proposal was based on a desire not to have special legislation for any states, Representative Mondell immediately introduced another amendment, the effect of which would be to change the width limitation to read "to the extent of the ground occupied by said pipe line and 25 feet on each side of the center of line of the same; also the right to take from the public lands adjacent to the line of said pipe line material, earth, and stone necessary for the construction of said pipe line."⁴⁰ Again Mondell justified his proposed amendment:

"* * * First, the provisions of this section [as originally drafted] are not liberal enough to enable people desiring to do so to construct the great carrying pipe lines which we are attempting to provide for. * * * Those lines are most of them of considerable length. The two that have been constructed in my State so far are each some sixty-odd miles in length. A line is now under contemplation which will be much longer than either of those lines. Eventually, we will have to cross the State, and probably cross a large portion of the State of Colorado with a main pipe line. At least 50 feet right of way is needed, and opportunity to use material on either side is needed to make the construction of these pipe lines practicable. * * *

******

* * *

"* * * The section as it stands will not do at all. That is clear in the first place, and it does not give the intending builder of pipe lines the space that he needs and the material that he needs. * * *"⁴¹

A vote was then taken on Mondell's second proposal and it was defeated.

As noted earlier, when next introduced into Congress as part of H.R. 406, the width limitation again provided for only 10 feet. Mr. Mondell expressed his apprehensions and summarized the views of Congress once more:

"* * * The provisions of this section are very illiberal. They are not sufficient to give fair opportunity for the building of large pipe lines such as are essential to a large oil business. I wish it were possible to amend it * * *. That is evidently impossible from the present attitude of the committee, and I realize that no amendment would be favorably received liberalizing this section, therefore I offer none."⁴²

As later versions of H.R. 406 indicate, however, Representative Mondell was eventually successful in getting one of the amendments he wanted. When the section came out of Committee, "ten" was changed to "twenty-five" where it remained, with one exception already noted, throughout the period until enactment of the Mineral Leasing Act in 1920. Although the Committee did finally agree to enlarge the width allowance, Mondell was apparently unsuccessful in obtaining any amendment that would, in the manner of 43 U.S.C. Sec. 962, allow one to go outside the right-of-way to obtain materials necessary for pipeline construction.

This legislative history indicates first that Congress agreed with Representative Mondell's position that the width limitation restricted all construction activities. By recognizing that a change from 10 feet to 25 feet was necessary, Congress was implicitly accepting the view that Mondell put forth. Secondly, Congress was offered an amendment that would modify the width limitation so as to expressly provide that one could go outside the statutory right-of-way where necessary for construction purposes and, as noted earlier,⁴³ it had been told by the bill's sponsor that enactment of the bill would repeal a pre-existing statute that contained such an express provision. Congress voted down the amendment, however, clearly indicating its desire to restrict construction to the statutory right-of-way.⁴⁴ Finally, the history indicates that Congress had been warned that the future was going to bring larger and larger pipelines, and that the statutory right-of-way was going to prove insufficient to allow construction of these lines. But rather than exercise what we might now call reasonable foresight, foresight which the Congress did exercise on other similar occasions,⁴⁵ the Congress did not attempt to provide for the future by giving the Secretary of the Interior express authority to allow use of any amount of land reasonably necessary for construction. The apparent attitude of Congress was best exemplified by Representative Taylor of Colorado who, because of the state he represented, was very concerned with the effect of the proposed statute on pipeline construction. As quoted earlier, Taylor's position was that if the new law was not adequate, "then we hope to come back here some time and amend it." Thus though Congress seemed to be aware that the width limitation might be, or might in the future prove to be, insufficient, the remedy suggested was not to plan for the future but rather to tell the industry to come back to Congress if these fears were borne out by actual practice under the Act.

The final chapter in the legislative history of Section 28 was the debates on H.R. 3232, 65th Cong. Despite the apparent acquiescence of Congress in Mondell's amendment to 25 feet, Representative Chandler of Oklahoma attempted to amend the limitation back to 10 feet.

"Mr. CHANDLER of Oklahoma. Mr. Chairman, I see no reason for granting a right of way for a pipe-line company of this magnitude. There is no reason in the world why a pipe line should have any more right of way than a railroad company, and most of the railroads in this country only have 50 feet right of way. This bill provides that the pipe lines shall have a grant of the land occupied by the pipe line and then an additional 25 feet on each side of the pipe line.

"Now, this is entirely too much ground to give to any pipe-line company. As everybody knows, most of the railroads of the United States have only 50 feet of right of way-they have to make grades, and so forth-but a pipe line only takes up 12 or 16 inches, making no grade, simply digs ditches, goes over the hills and down again, and the Government ought not to give a pipe-line company this amount of land.

******

* * *

"Mr. TAYLOR of Colorado. Mr. Chairman, I infer that my good friend from Oklahoma has never lived in a mountainous country. In a mountainous or rough and broken or hilly country pipe lines are sometimes buried on side hills or gulches, sometimes on high trestles, and on all kinds of ground, and people have to go up and down the lines to mend breaks in and repair the pipe line, and for various reasons, and you can not drive teams or haul material on a 10-foot strip of ground through that kind of country. The use of it is merely an easement, subject to such rules and regulations as may be prescribed by the Secretary of the Interior. These regulations will not prevent the ground from being used, if the ground is such that it ever can be used for anything; that is, if a pipe line runs over any land that anybody ever wants. It is only public land that has been heretofore deemed worthless. If the lands over which a pipe line will run were any good they would be in private ownership long ago. It is only the rough, arid land that nobody wants which is now open for settlement. If merely an easement over a right of way is given, and only temporarily, for the occupation by a pipe line, subject to such rules and regulations as the Secretary of the Interior will prescribe, the Government is not going to be hurt any by allowing the owner to use for that purpose only a strip of ground 25 feet wide on each side of the center of the pipe line, and I hope the gentleman's amendment will be defeated.

******

* * *

"* * * Mr. Chairman, owing to the very great shortage of oil, the very great consumption in excess of production, I assume that every Member of this House is very much in favor of oil development. With a shortage of 60,000,000 barrels this year, every patriotic citizen should be in favor of any fair law that will encourage oil development, and if this House is in favor of oil development there is certainly no reason for handicapping it by any more restrictions than are already in this bill. I may say that there is not a western Member of this House, certainly none from the States to which this legislation will apply, who is satisfied with this bill. It is much more drastic than we feel it ought to be. It will not bring about the development that the country needs and would get under a more liberal bill. At the same time we have agreed to accept this bill as the best we can get, and for that reason have not filed a minority report.

******

* * *

"MR. RAKER. * * * Here is an act granting the right to establish pipe lines in Colorado, giving a right of way of 25 feet on each side. That is the law now.

"Mr. TAYLOR of Colorado. Yes; that is the Colorado and Wyoming act, and expressly grants 25 feet on each side. People can neither build or [sic] maintain a pipe line on less than that width in that country. There is no use of requiring impossibilities or restricting development by utterly impracticable restrictions and limitations that neither do the Government or [sic] anyone else any good.

******

* * *

"* * * My dear sir, to build and maintain a pipe line you have got to have more than just the actual land that the pipe rests on. You have got to have a wagon road to transport the material, you have very often got to take earth and rocks from the side of the right of way, and so on. A trestle supporting a pipe line may be 50 feet wide at the foundation. There is no earthly use of preventing construction or compelling people to come back to Congress again to get a sensible law.

"When the Secretary of the Interior is given the complete control of this right of way, that is sufficient; and I hope the amendment will not be adopted, because it is entirely inadvisable, absolutely impracticable, and utterly unnecessary. It can not be made to work out. Pipe-line owners would be compelled to go out and buy land adjoining every right of way or obtain from the Government an additional grant. This provision ought to be more liberal than it is. * * *

******

* * *

"Mr. NORTON. * * * [D]oes not the gentleman know, as a matter of fact, that the width of the right of way granted to the railroads has been found by practical experience to be altogether too great in the Western States?

"Mr. TAYLOR of Colorado. The 400-foot right of way granted to the Union Pacific was more than was necessary, especially on level ground for nearly a thousand miles; but in no place where there is rough ground has the 100-foot right of way been too wide or been curtailed.

"Mr. NORTON. I am sure it is the consensus of opinion of the people in the Central West that the right of way of 100 feet on each side granted to the Northern Pacific and the Great Northern Railway through Minnesota, North Dakota, and Montana is altogether too wide.

"Mr. TAYLOR of Colorado. On level farm land I think that is true. I think those railroads got a large amount of good land that they did not need and had no right to; but we are not asking for any good land or any land that we do not need.******

* * *

"Mr. MONDELL. Mr. Chairman, there is now on the statute books an oil pipe-line law, applying to Wyoming and Colorado, which grants an easement of 25 feet on each side of the pipe line.

"Mr. RAKER. Will the gentleman yield to me for a question right there?

"Mr. MONDELL. This section will repeal that law, which is in many respects much more liberal than this provision is, so we are putting in this law a provision much less liberal than the present law.

"Mr. RAKER. Will the gentleman yield for a question? The provision of law which the gentleman refers to is more extensive than this one, and reads as follows-

******

* * *

"Mr. MONDELL. I introduced that bill. I know something about it. If we secure the development of oil on the public lands, which we hope for under this bill, long pipe lines will have to be built, and they will have to be built over a rough country. In many cases they will have to be carried on trestles and at elevations that will require a great spread of the trestle at the base. In many cases they will have to be built along sloping hillsides and mountain sides, and the width of 50 feet is none too great. The land that these pipe lines will run over in the main are [sic] of but little value, and all that is granted is an easement for the use of the pipe lines. No one in the operation of one of these pipe lines cares to have any more land than is absolutely essential for the maintenance of the pipe lines, but unless you grant enough so that the building of the pipe line can proceed and material can be obtained for the building of the pipe line, you hamper this very great development.

******

* * *

"Mr. RAKER. Since looking through this Colorado and Wyoming act I find this provision in it that is not in this bill-

"Mr. MONDELL. It authorizes the taking of material.

"Mr. RAKER. Yes.

"Mr. MONDELL. Which this bill does not, and which on two different occasions I have endeavored to have the committee adopt, but having promised the chairman not to offer amendments I did not offer it on this occasion, though that provision ought to be in the bill.

"Mr. RAKER. Let me read it to the gentleman:

Also the right to take from the public lands adjacent to the line of said pipe line material, earth, and stone necessary for the construction of said pipe line.

"Mr. MONDELL. I hope the gentleman will offer that amendment to this section.

"Mr. CHAIRMAN. All time has expired. The question is on the amendment offered by the gentleman from Oklahoma.

"The amendment was rejected."⁴⁶

The debate indicates that the participants assumed that all construction had to take place within the width limitation of the statute. As noted earlier, any dispute between 10 feet and 25 feet becomes meaningful only if construction is limited to the statutory right-of-way. Opponents of the 10-foot limitation clearly state that were that amendment adopted it would be impossible to construct or maintain large pipelines, a result which would not obtain were we to adopt appellees' position in this case. Proponents of oil pipeline development again admitted that even as amended-that is, even with a 25-foot width allowance-the bill was not as liberal as it should be because it lacked the provision allowing one to go outside the statutory right-of-way where necessary for construction. But, as Representative Taylor stated, "[W]e have agreed to accept this bill as the best we can get * * *." More importantly, the debate provides answers to some of appellees' key arguments. They contend that to interpret the statute to restrict construction to the statutory right-of-way is to frustrate the purpose of the Mineral Leasing Act, to presume that the legislature intended to have done a futile thing, and to reach a result that is unreasonable, absurd and ridiculous. But the legislative history indicates that at the time the Mineral Leasing Act was passed Congress thought it was possible to build the then largest pipelines-which, according to Representative Chandler, were 12 to 16 inches wide-within the statutory right-of-way.⁴⁷ Finally, the debates indicate the reason why Congress was so strict with the right-of-way. Congress felt that in the past, when granting 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.

Of course, attempting to place too much emphasis on bits and shreds of legislative history is often a hazardous process. See United States v. O'Brien, 391 U.S. 367, 383-384, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). We note that in this instance we deal with a debate that engaged but a few members of one house of Congress, a Congress that was not even the one that eventually passed the Mineral Leasing Act of 1920.⁴⁸ But there appears to be no reason for not accepting this history for its obvious import. This is not a case where legislative history is being used to contradict the natural or literal reading of an act. Compare St. Marys Sewer Pipe Co. v. Director of U. S. Bureau of Mines, 3 Cir., 262 F.2d 378 (1959). Instead, it is being used to support the literal reading. This is not a case where opponents and proponents characterized the provisions of the act differently. They disagreed as to what was a proper width limitation, but they all agreed that the width limitation applied to the construction area. See First Nat. Bank of Logan v. Walker Bank & Trust Co., 385 U. S. 252, 261, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966); United States v. City & County of San Francisco, 310 U.S. 16, 22, 60 S. Ct. 749, 84 L.Ed. 1050 (1940). Nor is this a case where we must confront mere attempts to amend the statute, without discussion about the significance of such amendments. Cf. National Automatic Laundry & Cleaning Council v. Shultz, 143 U.S.App.D.C. 274, 291, 443 F.2d 689, 706 (1971). The function of the width limitation is readily apparent from the debates.

The main lesson of this legislative history is that the presumptions upon which our maxims of statutory interpretation are built are not always borne out. These presumptions, like most others in the law, are rebuttable. And while our maxims of statutory construction might have led us to conclude that Congress "must have intended" that those building pipelines could make use of land outside the statutory right-of-way for construction purposes, the legislative history simply indicates otherwise. One might have expected the Congress of the United States to exercise foresight in a situation in which it was expressly warned that the statute it was enacting was then, or might in the future become, ineffective. But such foresight was notably lacking. Foresight no doubt would have been the wisest choice in this instance, since after the passage of the Mineral Leasing Act pipeline technology developed to permit construction of larger pipelines needing greater amounts of construction space. It might fairly be said that Congress overreacted to the prior excesses of railroad rights-of-way. But it is not our function, when we pass on either the constitutionality of statutes or their interpretation, to substitute our opinion as to what is wise for that of Congress. Cf. Tidewater Oil Co. v. United States, 409 U.S. 151, 93 S.Ct. 408, 34 L.Ed.2d 375 (1972); Dandridge v. Williams, 397 U. S. 471, 487, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Congress chose not to be foresightful; it chose to retain control of the width of pipeline rights-of-way over public land itself, and that decision and its consequences must stand until Congress chooses otherwise.⁴⁹

D. Administrative Construction of Section 28.

Appellees have placed their primary reliance on the administrative practice with respect to SLUPs. While we find it unnecessary to review the administrative history in great detail, looking at that history in the light most favorable to appellees it indicates (1) that ever since the Mineral Leasing Act was passed the informal policy of the Bureau of Land Management has been to permit those constructing pipelines to use land for construction purposes outside the statutory right-of-way; (2) that since 1960 this informal practice has begun to become formalized through the procedure of granting SLUPs for construction space to supplement the statutory right-of-way; and (3) that the Department of the Interior and other agencies have granted SLUPs for a multitude of purposes other than pipeline purposes for the last 100 years, oftentimes in situations where the SLUP "supplemented" a limited statutory right-of-way. Appellees argue that this administrative practice should be accorded great weight and deference in the interpretation of the effect of Section 28 on SLUPs for construction purposes, and should lead us to conclude that Section 28 does not affect the Secretary's authority to issue SLUPs.

Before discussing the administrative history of SLUPs any further, it would be best to state at the outset our general approach to the area of executive interpretation of statutes. We do not question the settled principle that administrative interpretations of statutes are entitled to great weight. See Zuber v. Allen, 396 U.S. 168, 192-193, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969); Volkswagenwerk Aktiengesellschaft v. F. M. C., 390 U.S. 261, 272, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L. Ed.2d 616 (1965).⁵⁰ But it is our firm belief that a line must be drawn between according administrative interpretations deference and the proposition that administrative agencies are entitled to violate the law if they do it often enough. Not to draw this line is to make a mockery of the judicial function. "[T]he courts are the final authorities on issues of statutory construction * * * and 'are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.' * * * 'The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia . . . .' " Volkswagenwerk Aktiengesellschaft v. F. M. C., supra, 390 U.S. at 272, 88 S.Ct. at 935. Administrative construction of a statute "is only one input in the interpretational equation." Zuber v. Allen, supra, 396 U.S. at 192, 90 S.Ct. at 327. A court should not "abdicate its ultimate responsibility to construe the language employed by Congress," id. at 193, 90 S. Ct. at 328, but rather should defer to an administrative construction only if there are no "compelling indications that it is wrong." Red Lion Broadcasting Co. v. F. C. C., supra, 395 U.S. at 381, 89 S.Ct. at 1802. It has a duty to ignore that construction should it determine that it is "in conflict with the plain intent of the legislature." Brhd of Railroad Trainmen v. Akron & Barberton Belt R. Co., 128 U.S.App.D.C. 59, 90, 385 F.2d 581, 612 (1967), cert. denied, 390 U.S. 923, 88 S.Ct. 851, 19 L.Ed.2d 983 (1968).⁵¹ "Administrative interpretations are not absolute rules of law which must necessarily be followed in every instance, but are only helpful guides to aid courts in their task of statutory construction." Sims v. United States, 4 Cir., 252 F.2d 434, 438 (1958), affirmed, 359 U.S. 108, 79 S.Ct. 641, 3 L.Ed.2d 667 (1959). Judge Hand summarized the principle very succinctly when he said, "[I]n the end, after whatever reserve, upon the courts rests the ultimate responsibility of declaring what a statute means * * *." Fishgold v. Sullivan Drydock & Repair Corp., 2 Cir., 154 F. 2d 785, 790, affirmed, 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946). An administrative practice which is plainly contrary to the legislative will may be overturned no matter how well settled and how long standing. See, e. g., Baltimore & Ohio R. Co. v. Jackson, 353 U.S. 325, 77 S.Ct. 842, 1 L.Ed.2d 862 (1957) (overruling administrative practice of 60 years' duration); United States v. E. I. duPont de Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957) (overruling administrative practice of 40 years' duration).

Balancing the maxim of deference to administrative interpretations with the principle that the courts remain the final arbiter of the meaning of the law is unquestionably a difficult process. It would seem, however, that a sensible way of meeting this task would be to analyze the rationales behind the doctrine of deference and to ask if they apply in this case. For if they do not, the maxim of deference must inevitably bow before the principle of judicial supremacy in matters of statutory construction. Application of that methodology to the instant case leads us to conclude that "[t]hose props that serve to support a disputable administrative construction are absent here." Zuber v. Allen, supra, 396 U.S. at 193, 90 S.Ct. at 328.

Perhaps the primary rationale behind the doctrine of deference is the idea of administrative expertise. Thus it has been said that special deference is due when the administrators were involved in the drafting and passage of the statutory language. See ibid. "Administrative construction is less potent than it otherwise would be where it does not rest upon matters peculiarly within the administrator's field of expertise." Thompson v. Clifford, 132 U.S.App.D.C. 351, 364, 408 F.2d 154, 167 (1968). See also Social Security Board v. Nierotko, 327 U.S. 358, 369, 66 S.Ct. 637, 90 L.Ed. 718 (1946); Skidmore v. Swift & Co., 323 U.S. 134, 139, 65 S.Ct. 161, 89 L.Ed. 124 (1944); I. C. C. v. Service Trucking Co., 3 Cir., 186 F.2d 400, 402 (1951).

There can be no doubt that there is no need for administrative expertise in resolving the question of the meaning of Section 28. Expertise might be needed to decide what is a reasonable pipeline construction area, but it is not needed to decide whether Section 28 precludes construction outside the statutory right-of-way.

"* * * [S]ince the only or principal dispute relates to the meaning of the statutory term, the controversy must ultimately be resolved, not on the basis of matters within the special competence of the Secretary, but by judicial application of canons of statutory construction. * * * 'The role of the courts should, in particular, be viewed hospitably where . . . the question sought to be reviewed does not significantly engage the agency's expertise. "[W]here the only or principal dispute relates to the meaning of the statutory term" . . . [the controversy] presents issues on which courts, and not [administrators], are relatively more expert.' * * *"

Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 837, 25 L.Ed.2d 192 (1970), quoting Hardin v. Kentucky Utilities Co., 390 U.S. 1, 14, 88 S.Ct. 651, 19 L. Ed.2d 787 (1968) (Mr. Justice Harlan, dissenting).

The second basic rationale for the doctrine of deference is the concept of congressional acquiescence in the administrative interpretation. "Under some circumstances, Congress' failure to repeal or revise [a statute] in the face of such administrative interpretation has been held to constitute persuasive evidence that that interpretation is the one intended by Congress." Zemel v. Rusk, 381 U.S. 1, 11, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965).⁵² Thus in actual cases courts have to analyze whether there is any reason to believe that the particular administrative interpretation in question came to the attention of Congress so that it might reasonably be said that Congress, by failing to take any action with respect thereto, approved the interpretation.⁵³ As we have had occasion to note, "Legislative silence cannot mean ratification unless, as a minimum, the existence of the administrative practice is brought home to the legislature." Thompson v. Clifford, supra, 132 U.S.App.D.C. at 361, 408 F.2d at 164.

Applying the rationale to the present case, there is absolutely no indication that the practice of granting SLUPs for pipeline construction purposes has ever been brought to the attention of Congress, either through testimony at a congressional hearing or by any other means.⁵⁴ Nor is the practice of granting SLUPs for pipeline construction purposes of such public knowledge that it is reasonable to assume that congressmen, as members of the general public, knew of the practice. Indeed, it is ironic that the very oil companies which now claim that it was settled and well known administrative practice to grant pipeline construction SLUPs apparently did not know about the practice when they first made application for rights-of-way for the trans-Alaska pipeline. The first application, as noted in the factual introduction, requested an additional permanent right-of-way for construction purposes.⁵⁵ Likewise, we note that in its Preliminary Report to the President in 1969 the North Slope Task Force organized by the Department of the Interior had not yet figured out how the additional space was to be acquired.⁵⁶ In fact, the Interior Department's own version of the development of the practice of granting pipeline construction SLUPs makes it highly unlikely that any but a small handful of prior recipients would know of the practice. The agency admits that until 1960 the practice was completely informal. That is, those building pipelines did not request use of additional space; they merely used what space they needed while project supervisors from the Bureau of Land Management silently looked on. It was not until 1960 that SLUPs were granted, and even then the main purpose of the SLUPs was not to authorize formally what otherwise would be a trespass on federal lands. Rather, the Bureau's desire to issue SLUPs stemmed from the Bureau's view that some builders of pipelines were using more construction space than was in fact reasonably necessary, or were refusing to attempt to return the construction space to its original condition. It was therefore felt that in those cases where there was a risk of such behavior a SLUP would be desirable either as a means of limiting, but not eliminating, encroachments on property outside the statutory right-of-way or as a means of providing a vehicle in which stipulations about returning the land to satisfactory condition could be placed. For all that appears from the administrative record before us, SLUPs are still not granted in every case of pipeline construction, but only in those cases where the Bureau's rationales are applicable. Even today the Bureau's policy is not publicized through a formal rule or through any other "expressly articulated position at the administrative level."⁵⁷ See Investment Co. Institute v. Camp, 401 U.S. 617, 627, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971). We are constrained to conclude, therefore, that the practice of granting pipeline construction SLUPs has never come to the attention of Congress, and that there can be no finding of congressional acquiescence.⁵⁸

*****

* * *Interior points to the fact that Congress has been made aware of the issuance of SLUPs in other situations, particularly in situations where the Secretary of Agriculture has issued SLUPs to supplement statutory rights-of-way. See, e. g., 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, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). We need not voice our views with respect to the Ninth Circuit's opinion in Sierra Club,, noting only that the opinion seemed to find congressional acquiescence in Agriculture Department SLUP practices. For, even assuming arguendo we agree with the Ninth Circuit with respect to Agriculture Department SLUPs, we do not see how this affects the legality of SLUPs issued by the Department of the Interior for pipeline purposes. The question raised in Sierra Club involved interpretation of a different statute controlling a different agency. In addition, the statute involved in that case, 16 U.S.C. Sec. 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. Appellees' reliance on such administrative practice simply ignores the fact that the issue before this court is not the legality of any and all SLUPs, issued by any and all agencies, for any and all purposes. The question is far more precise, and pertains solely to the issuance of SLUPs as "rights-of-way" "for the transportation of oil" in violation of express statutory language that no rights-of-way for this purpose shall be granted except under the limitations of Section 28 of the Mineral Leasing Act. This is the only question we decide. Administrative practice with respect to other statutes and other agencies is not sufficiently relevant to that question to force us, in this litigation, to review the legality of those other practices.

We therefore place no reliance on the administrative practices involving SLUPs for purposes other than oil or gas pipeline construction. And looking at the history of the administrative practice of granting pipeline construction SLUPs, we do not feel, for the reasons discussed above, that this history either merits our deference or leads us to ignore an ascertainable legislative will to restrict construction activities to the statutory right-of-way.

E. Regulations of the Bureau of Land Management.

We need not rest our decision holding the SLUP here to be illegal on Section 28 alone, for appellants have also demonstrated that this SLUP violates the agency's own regulations governing the granting of special land use permits.

Appellees have based their request for a SLUP on 43 C.F.R. Sec. 2920.0-2(a) (1972):

"* * * It is the policy of the Secretary of the Interior, in the administration of the lands under the jurisdiction of the Bureau of Land Management, to permit the beneficial use thereof, where practical, for special purposes not specifically provided for by existing law. Permits for such special use will not be issued, however, in any case where the provisions of any law may be invoked. Permits will not be issued where such issuance would be inconsistent with the objectives of the regulations in this chapter or would be in conflict with any Federal or State laws."

In addition, 43 C.F.R. Sec. 2920.3(a)(1) (1972) provides: "A special land-use permit will be revocable in the discretion of the authorized officer at any time, upon notice, if in his judgment the lands should be devoted to another use, or the conditions of the permit have been breached." Appellants contend, first, that the SLUP in this case violates Section 2929.0-2(a), which only permits special land use permits for "purposes not specifically provided for by existing law," and the similar proviso in the same section that "[p]ermits for such special use will not be issued, however, in any case where the provisions of any law may be invoked." Also, it is argued that the SLUP violates Section 2920.3 (a)(1) because it is not "revocable in the discretion of the authorized officer at any time" as that phrase has been construed in prior cases.

Turning to the first argument, there are no judicial cases interpreting the requirement that a SLUP be for "purposes not specifically provided for by existing law." The only administrative interpretation of the provision indicates that the question whether there is a violation of the regulation is identical with the question whether there is a violation of Section 28. In a Solicitor's opinion of October 22, 1946, Leases & Licenses, Ore. & Calif. Lands, 59 I.D. 313 (1946), the following issue was posed. A statute gave the Bureau of Land Management the power to lease certain land for recreational purposes to "States, counties, or municipalities." The question presented was whether, in light of that statute, the Bureau had the authority to issue leases and/or special land use permits for the same land for recreational purposes to private individuals. The Solicitor concluded that leases to individuals were impermissible, but that special land use permits were valid. He reasoned that the regulation barring permits in situations where the provisions of existing public land laws may be invoked did not mean that the Bureau could only issue permits in "situations where there is no statute at all governing the particular type of use." Id. at 316. While this language would tend to support appellees, the next sentence makes it clear that, under the regulation, SLUPs could be issued only "[i]n the absence of a congressional intent to preclude the issuance of any special land-use permits with respect to a particular kind of use." Ibid. The analysis of whether the regulation is violated is thus identical with our previous analysis of whether Section 28 was violated. Congressional intent to confine construction activities to the pipeline right-of-way authorized in the statute represents a congressional intent to preclude construction SLUPs for land outside the statutory right-of-way.⁵⁹ Thus the SLUP constitutes a violation of the regulation in this regard.

Turning then to the regulation's requirement that the SLUP be revocable, past administrative interpretation of the revocability requirement has produced two very different tests. The first is best epitomized by the Attorney General's opinion in Erection of Catholic Chapel at West Point, 21 Op.A.G. 537 (1897). In that case a cleric had petitioned the Superintendent of the United States Military Academy at West Point for permission to erect a Roman Catholic chapel there. The Secretary of War then issued a "revocable license" to erect the chapel, an act that the Attorney General concluded was illegal. The Attorney General was unpersuaded by the fact that the license expressly provided that it was revocable and that the licensee would remove, at his own expense, and within 60 days of notice of revocation, any structures erected on the land, and would leave the land "in as good condition for use by the United States as it is at this date." He reasoned:

"* * * The licenses provide for no term, and really commit the Government to a practical perpetuity. It would be idle to deny this-idle to deny that you do not expect to exercise, nor is it expected that you will exercise, the power of revocation except in an emergency. * * * At any rate the Government would find itself embarrassed either to endure a perpetuity of right in the license or exercise an invidious power."

Id. at 541. This test, then, focuses on the likelihood of revocation as opposed to the mere legal right to revoke.⁶⁰ Under this approach, the licensee's plans to invest sizable amounts of capital in improvements on the licensed property indicated that there is no real intent ever to exercise the right to revoke,