ALYESKA PIPELINE CO. v. WILDERNESS SOCIETY

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Argument of Robert E. Jordan Iii

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1977, Alyeska Pipeline against the Wilderness Society.

Mr. Attorney General if you or your friend would like to supplement and clarify that situation may do so, file a letter to the clerk and of course a copy to opposing counsel.

Mr. Jordan, you may proceed whenever you're ready.

Mr. Robert E. Jordan Iii: Mr. Chief Justice and may it please the Court.

This case is here on certiorari to the District of Columbia Circuit to review a four to three en banc decision of that circuit awarding attorney's fees to the respondent environmental organizations here.

It arises out of the Alaska Pipeline litigation.

In order to understand the facts of the attorney's fees case, it's necessary to refer briefly to the underlying litigation.

In mid 1969, affirmance were sought from the Department of Interior to construct the Alaska Pipeline.

These applications were subsequently amended in December of 1969.

As amended in December of 1969, they reflected the anticipated need at that time of approximately 100 feet in width in order to build this pipeline because of the heavy construction equipment which is required.

The statute involves the Mineral Leasing Act of 1920 provides for a right of way, essentially 50 feet plus the width of the pipeline.

In this case 54 feet of foot pipeline, Alyeska in its December application sought to acquire additional space under Department of Interior regulations, and they are on the books for some years.

Justice Harry A. Blackmun: What's the way you pronounce it, Alyeska?

Mr. Robert E. Jordan Iii: Alyeska.

Justice Harry A. Blackmun: Not Alyeska?

Mr. Robert E. Jordan Iii: Alyeska is the correct pronunciation, yes Your Honor.

To acquire this additional space as a special land use permit, there was a provision on Department of Interior regulations for awarding such permits.

Now, during 1969, and as a chronology set forth in the appendix here which reveals that Department of Interior launched what was at that time really an unprecedented effort to evaluate this pipeline proposal, technically environmentally and what have you.

In January 1, 1970, the National Environmental Policy Act became law and that's commonly referred to these days as NEPA.

In March, the respondent's file suit in the District Court.

They filed suit only against the Secretary of Interior.

And Alyeska our client, the petitioner here and the State of Alaska did not become parties to the litigation until approximately 18 months thereafter when they intervened.

There were two distinct claims in the complaint.

First of all was that the applicants were limited to 54 feet in width and the Secretary of Interior had no authority to give them more under the special land use permit to regulations or otherwise.

Secondly, that the Department of Interior had not yet complied with NEPA which requires federal officials to consider environmental values and to file so-called environmental impact statements for major projects.

Preliminary injunction issued in April 1970.

After that time, the Department of Interior continued to asses the technical and environmental aspects of the pipeline and also began preparing the environmental impact statement required by NEPA.

This statement was issued for public comment in March of 1972 and in May of 1972, Secretary Morton indicated his decision to award the permits including the special land use permits which were challenged by respondents.

The legal issues involved were then litigated in the District Court in August of 1972 and the respondents were unsuccessful on all issues.

The district judge who would enter the preliminary injunction lifted that injunction.

An appeal then ensued to the District of Columbia Circuit and there the respondents prevailed on the Mineral Leasing Act claim or that part of their claim, that related to the special land use permits.

The Court did not decide the NEPA issues which had also been litigated in the District Court.

Three of the judges however, expressed a view that those issues ought to be decided and that the secretary's efforts complied with NEPA.

Certiorari was sought to this Court and was denied.

Thereafter, respondents filed a bill for cost and attorney's fees with the Court of Appeals, sought attorney's fees only against Alyeska, one of the three defendants and sought such fees only for a period beginning approximate to the time of the release of the final environmental impact statement in March '72, did not seek any fees with a period in which the preliminary injunction was sought or obtained.

Justice William H. Rehnquist: Did they seek fees just for their services in the Court of Appeals or for throughout the litigation?

Mr. Robert E. Jordan Iii: Well, it wasn't throughout the litigation but it covered such things for example as obtaining expert comment on the environmental impact statement, they submitted four volumes of comments to the Secretary of Interior as part of the public comments, preparation of the Mineral Leasing Act brief, preparation of the briefs in connection with the NEPA issues.

Now, they did not specifically make a claim for the presentation in the District Court.

However, the same briefs were used in the Court of Appeals, somewhat unusual procedure but the exact briefs were used in the Court of Appeals, that were used in the District Court so all the work that had been involved in doing the briefs was initially done for the District Court, then used thereafter in the Court of Appeals.

Meanwhile, Congress had began to consider legislation to solve the problems created by the Court of Appeals decision.

That legislation resulted in public law 93-153 which amended the Mineral Leasing Act and generally with respect to rights of way but it did more than that.

It contained specific provisions regarding the Alaska Pipeline and it directed issuance of all the necessary permits for the line.

Specifically said that there would be no further compliance required with NEPA and this in effect was a rejection of what had been the respondent's principal contention in all of late 1971 and 1972, namely the Secretary of Interior had to consider a comment carter of pipelines through Canada rather than through Alaska.

It also precluded judicial review for -- except for constitutional claims and even for those provided direct appeal from a one-judge district court to this Court.

After this legislation was enacted, the Court of Appeals granted the request for award of attorney's fees against Alyeska.

The award was based on what we view as a considerably expanded concept of the private attorney general doctrine which some lower courts had embraced.

And although the majority conceded that Alyeska had not violated any duty, and no duties were imposed on Alyeska by the two statutes which were in question and nonetheless awarded fees against Alyeska.

This decision is on direct conflict with the Sierra Club versus Lyng the Fifth Circuit which is printed as an appendix to our brief here, certiorari was then granted by this Court.

Now our principal arguments in seeking reversal of the Court of Appeals decision are these.

First, it is our position at the Fifth Circuit held in Sierra Club versus Lyng that it is not equitable to award fees against the party who violated no duty and who could not control the acts of those upon whom the duties were imposed by law.

Second, the court's unwilling to rule on that basis.

We contend that the Court of Appeals applied an improper concept of the private attorney general doctrine if indeed there is to be a private attorney general doctrine.

Specifically it was wrong to award fees on the Mineral Leasing Act aspects of the case because that width provision on the Mineral Leasing Act was not something which reflected peculiar or unique congressional concern.

And secondly, it was wrong to award fees with respect to the NEPA issues on which respondents did not prevail in the District Court, in the Court of Appeals or in the Congress.

Now it's our contention that what the Court of Appeals did here is a major extension of the private attorney general doctrine that it will stimulate a greatly increased amount of litigation on the federal courts involving both environmental laws and hundreds of other federal statutory provisions, that there will be collateral litigation concerning the scope of this expanded somewhat indefinite private attorney general exception.

And that so unconstrained on exception raises serious questions of legitimate concern to this Court about the proper role of the judiciary, as distinguished from the Congress in saying which federal statutes are so important that attorney's fees ought to be awarded to support their policies.

Justice Potter Stewart: Is there any case in this Court that is held that there is a general -- private attorney generals?

Mr. Robert E. Jordan Iii: There is no such case, there was a reference to the private attorney general doctrine in Newman versus Piggie Park Enterprises but that was a statutory case under Title II of the Civil Rights Act and it was more -- the Court was effectively creating a presumption in favor of attorney's fees on one of the statute there.

The Court noted last term in the Rich versus United States case that hadn't passed on that private attorney general concept.

The Court has noted in various footnotes that other Courts have discussed such a concept.

Before, I get to this principal arguments, let me put to rest a couple of matters which were raised by respondent's brief.

First, respondent seem here to be trying to suggest that Alyeska was guilty in consort with the Secretary of Interior of deliberately lawless conduct and seeking special land used permits as an adjunct to a right of way under the Mineral Leasing Act.

This simply cannot be supported, even the majority of the Court of Appeals conceded at the Mineral Leasing Act argument of Alyeska and the secretary was and I quote “manifestly reasonable and assumed in good faith particularly in view of a long administrative practice supporting it.”

Secondly, the respondents argue that their activities support an award of attorney's fees under a kind of common benefit theory which this Court has approved in cases such as Mills versus Electric Auto-Lite and Hall versus Cole.

But the Court of Appeals examined that theory too and said in effect that if you're going to apply the common benefit exception of this case, you'd have to take that exception and I quote “stretch it totally outside its basic rationale.”

The Court also noted that imposing attorney's fees on Alyeska will not operate to spread the cause of litigation proportionally among the beneficiaries, the key requirement of the common benefit theory.

And on this regard, the DC circuit has an agreement with the reasoning of the Fifth Circuit in Sierra Club versus Lynn.

Let me turn now to really our principal argument and that is the fact that Alyeska has been held to answer attorney's fees for asserted violations of the duty of the Secretary of Interior.

The argument is really quite simple.

First, the respondents made two arguments in the litigation earlier that the secretary lacked authority to give permits to Alyeska in connection with the right of way and secondly that the secretary did not adequately comply with his responsibilities under NEPA which requires environmental statements and public comment and circulation among federal agencies.

The suit was brought only against the secretary.

No claim was ever made that Alyeska violated any duty.

The Court of Appeals explicitly recognized that the duties were those of the secretary.

Now despite this, the Court of Appeals went on and awarded the attorney's fees against Alyeska because of its substantial participation under litigation which I cannot deny and because of the massive nature of its interests.

In our view, the participation in the litigation and the massivity of Alyeska's interest is simply not the point here.

The point is as the Fifth Circuit has recognized, Alyeska was innocent of any wrong doing and yet it has been held responsible with regard to attorney's fees.

Let me turn now if I can to the private attorney general doctrine.

That's the doctrine on which the Court of Appeals rested its decision in this case and plainly did so.

Now, we contend that if there's to be a private attorney general doctrine which Mr. Justice Stewart colloquy pointed out, this Court has never really approved.

It ought to be confined in some way which makes it manageable.

One way to do that would be to confine it to cases involving either constitutional rights or rights which are created by statutes which implement and intend to give substantive rights under constitutional provisions.

And it all further be limited to plaintiffs who prevail in a practical if not a technical sense.

Let's look into what the Courts have in fact done with the private attorney general exceptions.

The brief of the respondents here footnote 91, sets forth a host of private attorney general cases.

There are 28 there where fees were actually awarded.

When you look at those, you'll find that 26 of them involve either constitutional claims or claims under implementing statutes to constitutional provisions such as 42 U.S.C., Sections 1981, 1982, 1983.

Only one case involves an environmental claim that's the La Raza Unida case in California District Court case.

And there's another case in California involving an antitrust claim under Section 7 of the Clayton Act.

Now, 24 of the plaintiffs in these 28 cases had achieved success on the merits.

And four of the plaintiffs had achieved substantially the same thing in the form of a consent decree.

In no case does it appear at least as we can 1547 from the opinions that the fees were awarded against the party without responsibility for our duty.

In other words, a party which did not had some violation of a duty.

Now, with respect to the sort of the important statute argument, the Mineral Leasing Act with provision of the 1920 Act simply cannot qualify as an important statute.

The committee reports in connection with the passage of what was then Section 28 of the 1920 Act don't even mention the width limitation nor do committee reports of similar statutes have been kicking around the Congress in 1914 to 1920.

Justice William H. Rehnquist: Well, Mr. Jordan how can a Court possibly decide whether or not that was or was not an important statute?

Mr. Robert E. Jordan Iii: Well, Mr. Justice Rehnquist, my position or our position here is that Court ought not to be doing that.

That is unmanageable.

But if you're going to say this one is important, then essentially everything is important or if you're not going to say that what you're going to apply to this one and you've got to pick and choose and say, “Well, we think this one is important that we think Congress thought that this one was important.

Justice William H. Rehnquist: Certainly, if a width statute were passed today with the environmental concerns that are apparent, I suppose one might say that it was thought to be very important that the secretary grant just so much right of way and no more.

Mr. Robert E. Jordan Iii: Well, I think that that could be but I think you have to look to how Congress viewed it, not how the Courts view and you want to look for some object determination of what Congress thought about the time passed it.

Justice William H. Rehnquist: But you sat here during the argument of this last case, we have a hell of a time figuring out what Congress meant substantively in the statute to -- that we should go further and decide whether or not Congress thought it was important.

Mr. Robert E. Jordan Iii: Well, I agree with your analysis Mr. Justice Rehnquist and I would say these, you know that you can kind to go one way or the other.

One way is to say all federal statutes justify attorney's fees awards.

That is essentially an abandoned one of the normal American rule of non-award or you can say none do.

Now, a lot of lower courts and particularly the Fifth Circuit and District Courts in the Fifth Circuit have said it's justified in certain types of cases and I take the Civil Rights Act of ‘64 and ‘68 and the Voting Rights Act and so forth.

And they find other provisions, most of them enacted during the reconstruction the year after the civil war and say, “These are closely related.

They're in the same ballpark and we'll apply it to suits under these statutes.

Justice William H. Rehnquist: Of course the Civil Rights Act of ‘64 authorizes counsel fee.

Mr. Robert E. Jordan Iii: Some titles do such as Title II.

But I recognized that the Courts have applied it elsewhere.

What we are saying is that it's not best to say whether there ought to be a private attorney general exception.

Justice Thurgood Marshall: But this may be the third one, the general equitable powers of an equity court?

Mr. Robert E. Jordan Iii: Well, the opinions of this Court have often -- attorney's fees have often made reference to that general equitable power.

I would say this about that.

And if you turn the lower federal courts lose and say, “The federal statute is important as the Mineral Leasing Act, you can award attorney's fees and your general equitable powers.

You essentially abolish the American doctrine with respect to non-award of attorney's fees giving due recognition, the importance of federal statutes in the federal courts.

Chief Justice Warren E. Burger: Suppose, Mr. Jordan that if we had a broad equity approach, we might then say that if someone on the posture of the wilderness society brought litigation of this kind and lost, that attorney's fees could be taxed against them, the equity power can't be one that works just one way, could it?

Mr. Robert E. Jordan Iii: Well, we don't think it should work one way but that's exactly what the Court of Appeals said in his opinion and Judge Wright said, “It's okay to award the attorney's fees against Alyeska because they have such a massive interest that they couldn't possibly be deterred from bringing the litigation.

On the other hand, it wouldn't work the other way around so there's a lack of mutuality there which the -- which Judge Wright conceded.

Chief Justice Warren E. Burger: Well, the same could be set to afford foundation.

For example, if it brought some law suits, every sources were probably an excessive, that of the most private corporations in the country, that rationale wouldn't apply to Ford Foundation, would it?

Mr. Robert E. Jordan Iii: No, it certainly will not apply to Ford Foundation but you know --

Justice Thurgood Marshall: Do you draw a difference between a non-profit corporations and fourth foundation in people like that?

Mr. Robert E. Jordan Iii: I beg your pardon.

Justice Thurgood Marshall: Do you draw a difference between a non-profit corporation in Alyeska, whatever it is?

Mr. Robert E. Jordan Iii: Well, let's put it this way.

Justice Thurgood Marshall: I mean there is a difference, you couldn't collect from them and they couldn't collect --

Mr. Robert E. Jordan Iii: Well there maybe judgment proof Mr. Justice Marshall, that that may be a possibility.

But there's no indication that the organization's involved here or in that category.

We do think that there's a difficulty with this -- the lack of mutuality.

And we basically think that this Court and the lower federal courts ought not to get in the business to try and to pick and choose between statutes.

If you want to have a private attorney general doctrine that recognizes civil rights and civil rights to derived cases, that possibly is a manageable distinction.

If you start extending it beyond constitutional rights, it's hard to see where you draw the line.

Let me say, a minute here about the NEPA claims.

As to those that simply clear that respondents have not prevailed.

There has been no ruling on NEPA.

The district court judge found for the petitioners, the three judges in the Court of Appeals who expressed an opinion said, “NEPA was satisfied by the secretary and Congress has rejected the NEPA claims.”

Hence it just cannot be a valid private attorney general claim based on the NEPA aspects of the litigations.

I would point out there that even Congress in passing links such as Title II of the Civil Rights Act with its attorney's fees provisions has made distinctions about prevailing and not prevailing.

The Title II provision requires that the party prevail.

There are some other federal statutes that do not make that distinction.

But even on something as important as the Civil Rights Act, Congress at least as required that the party prevail.

Now, there are a couple of additional things about the benefits rationale that fit in with the business of success.

Let me add a couple of thoughts on those.

First of all, most of the specific benefits claimed here are result of the preliminary injunction.

Alyeska wasn't a party then, didn't become a party for about another 16 months.

And yet perhaps 70% of what's claimed here really relates to the attack on the final environmental impact statement.

Therefore, no relationship between the fees claimed and the benefits claimed.

And secondly, respondents claim that it's their litigation and their activities which have reduced these various changes in the construction plans for the Pipeline.

This was a great benefit of the country and to Alyeska.

This just isn't supported by the record.

And let me take this one example which I pick from the brief of respondents to illustrate this.

Talk about buried and elevated pipeline, that's important because in firm or frost soil, if you bury a hot pipeline in the wrong places of the soil, it will fall and it will slump and it may damage the pipeline and could damage the environment.

Everyone agrees that this is true and you have to be careful about it.

But there's no element of the whole pipeline business.

The Department of Interior was more aware of and more concerned about.

That concern goes back to the latter half in 1969.

It antedates NEPA.

It antedates the suit by several months.

In December of 1969, Secretary Heckel wrote to Chairman Jackson of the senate of the interior committee, pointing out that an Interior study had showed there were great problems with these and there were great many unresolved problems.

The day before this suit was brought, March 25, 1970, the director of the geological survey who was later to become Undersecretary of Interior had a long involvement with this whole pipeline problem.

Sent a memorandum to Secretary Heckel saying, “I've got a studying for my staff people.

This is very troublesome, there are lot of problems here.

A lot more of the lines are going to half to be buried.

There's no way around it.

And yet respondents were trying to claim credit for these and various other things which were the products of the activities of a host of Government officials.

Now, those things I've just mentioned are in the record.

They are attached to the affidavits that were submitted and on March 30, 1970 the District Court -- those affidavits are referred to in the appendix at page 12 and we're talking about exhibit 19 to the Horton Deposition and exhibit B to the per core deposition.

We just don't think that the claims of credit can be justified by the facts.

For these reasons and those set forth in our brief Mr. Chief Justice, we submit that the judgment of District Court circuit should be reversed.

Chief Justice Warren E. Burger: Very well Mr. Jordan, Mr. Flannery.

Argument of Dennis J. Flannery

Mr. Dennis J. Flannery: Mr. Chief Justice, may it please the Court.

Justice Byron R. White: Mr. Flannery, has the amount of this ordinance fixed?

Mr. Dennis J. Flannery: It has not Your Honor.

That is specifically have been left by the Court of Appeals for a later determination.

Justice Byron R. White: Was the hours pretty well defined?

Were they by the Court of Appeals as to what would be included and what would --

Mr. Dennis J. Flannery: Yes, they were Your Honor.

Unknown Speaker: So, what was the total hours?

Mr. Dennis J. Flannery: The total hours were something over 4000 --

Chief Justice Warren E. Burger: 4,470 --

Mr. Dennis J. Flannery: Right Mr. Chief Justice.

Unknown Speaker: --you claim 4,400 hours something like that.

Mr. Dennis J. Flannery: We claimed 4,400 hours.

The Court of Appeals indicated that half of that should not be recovered because they thought it would be appropriate to divide the award between the Government and Alyeska.

Justice Lewis F. Powell: I understand that the total hours that they approved to 4,400 and then they just say the company should just pay half of that.

Mr. Dennis J. Flannery: Well, I cannot.

I mean they didn't really get into the question of the hours and size.

They said that the question of the hours and skill and the other points would be deferred for later consideration.

But it did say one-half of the total effort that were taken in preparing a case for the Court of Appeals should be awarded against Alyeska, yes Your Honor.

Chief Justice Warren E. Burger: Was this to be lift up to the District Court in the first instance?

Mr. Dennis J. Flannery: It was Your Honor.

Unknown Speaker: Did you claim an amount?

Mr. Dennis J. Flannery: No, we did not.

Justice Lewis F. Powell: And the rest of it was to be awarded or was it to be awarded against the Government?

Mr. Dennis J. Flannery: No, borne by the organization, the organizations involved, the Wilderness Society and the lawyers will swallow that.

Yes, Your Honor.

Chief Justice Warren E. Burger: The statutes forbid any levy against the Government, do they not?

Mr. Dennis J. Flannery: We did not go behind the statute.

We accepted that as a prohibition and maybe contention that we thought is was fair in this case to award the entire 4000 hours against Alyeska.

The Court disagreed with us on that and said they thought a half an award would be appropriate.

Listening to my good friend Mr. Jordan's argument and reading his brief, at least I sort of get the picture of a poor harmless soul who was walking pass the US courthouse one day and a big hook came in.

And the next thing he do, he was taxed with fees.

And that's really not the way this happened.

Just briefly to go back a little bit, the oil companies that Mr. Jordan represents discovered and got rights to this vast amount of oil on the north slope of Alaska.

And then they had to determine how to get it to market.

They looked and they considered various plans and they determined that the way they would like to do it is to construct a hot oil pipeline across the entire length of Alaska and then to load the oil when it got to the bottom of Alaska on marine tankers and then shipped the oil to market.

That was their decision.

Nobody told them to build it that way.

No one told them they had to do it that way.

They then set it out determining how they would go about getting permission to do that since most of the lands that would be crossed will be federal lands.

The record clearly indicates that Alyeska recognized that the statute and my God, it's hard to imagine a clear statute.

The statute says on its face that rights of way will be limited to 50 feet.

Not only does it say that, it then says that the secretary cannot grant rights of way under any other provision.

And if that isn't enough, it says, “And if he does, and if a right of way is limited or is issued that violates the statute, the oil company that receives the right of way will forfeit it.”

This was the statute on its face.

Justice Potter Stewart: I am not all that clear, why they take 4,400 hours to it.

Mr. Dennis J. Flannery: Your Honor --

Justice Potter Stewart: Even if the law was -- [Laughter]

Mr. Dennis J. Flannery: We think the case should have ended in April of 1970 when we received the preliminary injunction.

When Alyeska came in, it filed I think about a 200-page brief finally, ultimately trying to justify why the statute didn't say what it said.

It went pass through 200 years of history of Internal Interior Department Regulation.

Justice Potter Stewart: So, on your theory, why it would take your opponent a good many hours to prove that the statute didn't mean what it said.

We're talking about your time.

Mr. Dennis J. Flannery: Yes.

And I think we had to more or less do the same thing to show not only did it say what it said on its face but it meant that -- I think the Court of Appeals in its opinion indicated why we had to do that.

Judge Wright, after saying that the statute was as clear as it could be said, but, it may well be that 50 feet couldn't have meant 50 feet and we will go beyond and the Court went beyond all of the other factors that looked to the Interior Department of Regulation.

Indeed, Your Honor it found that on the face of the regulations, not only on the face of the statute, the kinds of permits contemplated here were banned.

It found no long standing administrative practice and we anticipated and it happened that the oil companies with their resources joined up with the Government, calling the field offices of the Interior Department around the country looking for any shred of evidence that might give them an indication that this was a long standing practice.

There was none.

When the record finally came down after these three years, Mr. Jordan and his -- and the Government came up with actually five documented instances of this kind of permit that they claim constitute a long standing practice and none of them before 1960.

And I think the total miles involved were around 50 or 60-mile.

But for some reason, the oil companies did not want to go to Congress.

At any time in the three years of this litigation was filed, the oil companies were free to go to Congress.

No one stopped them from doing it and in fact the theme of wilderness society, one is that this was a prescription that was directed to the oil industry.

And Congress specifically said if the oil industry wants more land and should come back to us and tell us why.

And Alyeska was not compelled to go to the Secretary of Interior.

It could have read as we read the preliminary injunction in 1970, and at that point gone to Congress.

It could have gone to Congress at anytime and therefore this litigation certainly didn't burden the Courts.

The only people that really burdened the Courts were Alyeska.

They were the ones who insisted on litigating this all the way through right up to this Court.

This Court I may note denied certiorari the first time around four days after receiving our opposition.

And yet the litigation was long and prolonged because of Alyeska's decision, not ours.

And the real issue here is who should bear the economic burden of compelling Alyeska and the Trans-Alaska Pipeline System to comply with the law.

And the question really is one between Alyeska and Exxon and Arco and Amerada Hess on one side and the Wilderness Society and the Environmental Defense Fund and the Friends of the Earth.

And who between those two should be compelled to their at least part of the economic burden of this litigation.

In our position, yes --

Chief Justice Warren E. Burger: If given all your positions in the case, the secretary had acted properly and performed his duty on your theory, the matter would have been exposed a long time ago, wouldn't it?

Mr. Dennis J. Flannery: That's correct Your Honor.

I think if the secretary had acted, as he should have back in 1970, the litigation would have been over.

I think and certainly if Alyeska had acted correctly and listened to the preliminary injunction, the litigation would have been over.

Chief Justice Warren E. Burger: But for 18 months at least, the secretary was from your point of view again in error on his own, wasn't he?

Mr. Dennis J. Flannery: Well, he was the only party before the Court and needless to say we were not anxious to invite Mr. Jordan and his law firm and the oil companies into the lawsuit but we knew they would come when push came to shove.

But certainly, the secretary in the time that the preliminary injunction was in effect, at anytime could have gone to Congress.

And Mr. Jordan, his clients could have also.

They were not prohibited in anyway.

In fact I think the clear purport of the statutory scheme was for Mr. Jordan and his client to go to Congress.

We don't really think that the question of technical legal liability is a sine qua non fully award in this case.

And it certainly was not the basis on which the Court of Appeals proceeded and we think correctly so.

But even on that point, the Mineral Leasing Act of 1920 has a clear forfeiture provision which in a very real sense put a direct legal liability on Mr. Jordan and his clients.

Chief Justice Warren E. Burger: Would this record show in its present state on what the portion of the total 4,400 hours of legal work have the impact that you argue for on the actions of Congress, the subsequent actions of Congress.

Mr. Dennis J. Flannery: Yes.

Your Honor yes.

Chief Justice Warren E. Burger: The substantial part?

Mr. Dennis J. Flannery: Yes, I think a substantial part -- the last item in the Joint Appendix is the actual bill of cost that was submitted to the Court of Appeal together with an affidavit for me which explained various segments of the work and what the various elements related to.

I think even here though it is important to focus on something.

Mr. Jordan indicates that the NEPA issues insofar as they were litigated really were irrelevant that we didn't prevail -- admittedly we didn't prevail because we prevailed on a threshold question.

But again the Wilderness Society and the groups I represented, when the secretary announced in May of 1972 that he was going to go ahead and issue permits not withstanding the preliminary injunction and not withstanding the limitation of the Mineral Leasing Act, we immediately filed a motion for partial summary judgment solely under Mineral Leasing Act ground which was the earliest time we could do it.

We said, “We believe this is dispositive of this case.

We request the Court to rule on it promptly that Alyeska and the Government had three years now to figure out why 50 feet doesn't mean 50 feet.

And we are satisfied to go on that issue alone.

Alyeska, which by this time had intervened and as Mr. Jordan has indicated very vigorously intervened have filed a motion the next day and argued, “No!

Don't do that.

Require the Wilderness Society, Environmental Defense fund to litigate all the issues.

Require them to litigate the NEPA issues as well.”

And specifically Mr. Jordan said, not the Government, not the State of Alaska but Mr. Jordan and his papers that unless the NEPA issues are briefed and argued, the Court will not have a basis for determining even the Mineral Leasing Act issues, that you cannot determine the Mineral Leasing Act issues in the abstract, you need to get the whole technical background and development of this entire case.

And he submitted, “When you have that and when you tell the Wilderness Society to submit a NEPA brief, we are then convinced that you will rule out their arguments on the Mineral Leasing Act.

And so even on that issue, we were told to litigate at Mr. Jordan's insistence.

Now, Mr. Jordan says that we did not prevail on the NEPA issues.

We didn't prevail under NEPA issues for precisely the reason that we have suggested to the Court that if the Mineral Leasing Act were indeed a threshold bar, the Court would be in a sense giving an abstract opinion on an issue of no significance because Congress would have the final determination and that's what ultimately happened.

I might say that there are questions raised frequently about delays and whether the environmentalist caused delays in the Alaska Pipeline.

But the record indicates that the environmentalists are responsible for none or hardly any delay that the initial suit was filed in the beginning of 1970, the earliest possible time.

The oil companies and the secretary will put on notice that both the Mineral Leasing Act and NEPA impose some fairly serious obligations on them that they ought to adhere to before going ahead with this project.

Mr. Jordan skips from 1970 to 1972 but there was a significant series of events that occurred in early 1971 when the Interior Department published a draft impact statement.

In January of 1971, the thought there was that that would serve as a basis to go ahead on the project.

And that there might be some fixing up of the statement as a result of comments but by March or so of 1971, there'd be a go ahead.

That statement was given by the Interior Department to Mr. Jordan's clients prior to its publication.

Many of the comments about the impact of the Trans-Alaska Pipeline System were softened.

There was tremendous criticism of that impact statement as a result by our organizations, by other federal government agencies.

And as a result, it was not really until February of 1971 that the Interior Department and I submit Mr. Jordan's clients got down to the serious business of grappling with the real complexities of this project.

So, really a whole year was lost from March of 1970 to around February of 1971.

And it's a year for which these respondents are in no way responsible.

And then from 1971 as I indicated till 1972, there was the work being done on the environmental impact statement.

We don't claim that credit for the good things that came and there are a lot of good things that came through that effort.

In the course of this litigation, we'd oppose the individual who was placed in charge of the drafting effort by the Secretary of Interior, a geologist named Dr. David Brew and I have never found a medic, find a public servant and a more dedicated man in my life.

And he received accolades from us as well as well as from Mr. Jordan's clients.

We had some problems with the work that was completed but there couldn't have been a man who worked harder or who had the public interest more at heart.

But then when that impact statement was issued as I have indicated while we presented our views to the secretary about what we thought still was wrong with it, we were perfectly willing for the litigation to end at that point, if a Congress to do its job.

We submitted the papers but the oil companies wanted to keep the case in the Courts.

Ultimately, we prevailed under Mineral Leasing Act issue and Mr. Jordan says in his brief and says today but it was on a technical issue that was of no importance.

What difference this 50 feet mean?

Well I think the subsequent history of anything demonstrates what the importance of it was, Congress didn't say “My God 50 feet is absurd, we don't care, take a hundred, take a thousand, just build this thing and get the oil down”.

There are 10 months of debate and with all of the pressures that were replaced and realistic ones.

All of the knowledge of the impending energy problems, the decision to build the Trans-Alaska Pipeline without further litigation passed by the senate by a 49-49 vote with Vice President Agnew breaking the time.

And it passed in the house by a vote of 221 to 198 and even then the proponents of that legislation, it certainly was unusual legislation.

But even then they said that the delays that have already occurred as a result of this litigation which permitted the interior department and Alyeska finally to get down to work and do what they should have down all along, convinces us that now we can go ahead.

So I don't take the subsequent legislation that came out of the Congress as a defeat for the environmental groups that is precisely what they had been asking for all along.

They had been asking that there be a real and considered judgment of what the implications of this project were and we got that.

And they were asking that the matter be referred to Congress, as Congress has indicated it wished in the Mineral Leasing Act of 1920, we got that.

And there's been no further dispute.

The pipeline is being built.

We wish the oil companies well and we do hope that it will be done in an environmentally responsible manner and presumed that it will.

Chief Justice Warren E. Burger: The pipeline that will be built differs, would you tell us in what way from one that was originally proposed?

Mr. Dennis J. Flannery: Well, the one that was originally proposed was a -- really was hard to say whether anything was originally proposed.

What the oil companies essentially went into the Interior Department with, was a map and a line of where they plan to go and essentially what they said was that “we'll get out in the field and out in the field we will be able to make adjustments.”

But the principle differences were number one, that all of the river crossings were to be buried and that would have had tremendous erosion problems and there would have been significant ruptures along the line.

All of the overland portion with the exception about 5% was too be buried and now it was more -- was to be buried, now about 55% or so will be elevated.

There was very little understanding of the topography along the root of potential landslides and avalanches.

And of course the most significant problem and one that by the way remains a problems one that concerns everyone still greatly including, I'm sure the oil companies is that the southern two thirds of the Alaska Pipeline route is seismically about the most active area in the world.

In fact the southern terminus, Valdez, was destroyed in 1964 by a major earthquake.

The Interior Department's impact statement indicates that there will be a major earthquake along the pipeline route sometime during its life.

Now the time that has gone by has at least permitted Alyeska to prepare contingency plans and certain defenses in areas where they know there are potentially active faults.

The most obvious one is it (Inaudible) which everyone has been aware of for a while.

The frightening thing though is that the Interior Department statement indicates that there maybe other potentially seismic active falls all along the route that cannot be predicted.

So we maybe and for some very serious problems in the years ahead, if one of those should become active and by the way even with all the study, the conclusion is that if there is a major rupture, there will be a minimum of about 60,000 barrels of oil that will spill into the lakes and the streams before preventive measures can be taken.

Justice Potter Stewart: And have there been any engineering changes in the anticipation of the possible --?

Mr. Dennis J. Flannery: Yes, as I said Your Honor, I think there have been certainly with respect to (Inaudible) and other areas that have been protections that have been built in, there also was a -- I think a much greater knowledge of the permafrost problems of the problems with vegetations of how to restore vegetation which is important not only for the environment but also for the integrity of the pipeline because these pressures could be just enormous, if you start interfering with the permafrost, you have the melting going one way and sort of coming back against the pipeline.

And it's still an amazingly complex project and one that is going to take all of the efforts of Mr. Jordan's clients to cope with and we sincerely hope that we'll be able to do it.

I think another problem which I might mention is the -- well it's called the Trans-Alaska Pipeline and that certainly is what it is.

Once it makes it through, if I could just have a minute, ones the pipeline makes it through the entire root, the problems really only begin because then it has to be loaded on to these major super tankers.

And again the final impact statement says that -- and this is now when all the study is over.

That in the average of the pipeline, we can expect a 140 barrels of oil to pollute the northeast pacific which is the vast but really major unpolluted ocean area in the world.

And that's only an average figure, one super tanker crash will spill a million barrels.

Chief Justice Warren E. Burger: We'll resume there at 1 o'clock.

Mr. Dennis J. Flannery: Thank you, Your Honor.

Chief Justice Warren E. Burger: Mr. Flannery you may resume.

Mr. Dennis J. Flannery: Thank you Mr. Chief Justice.

The petitioner does not in its brief and does not seriously here today question the power of the court below to make the award of fees in this case.

Nor, does it really seem to be arguing that the factors cited by the Court as applied to this case do not justify or do not support the award of fees.

And what really appears to be the principal argument, it certainly seems to true in the brief and I think it was the thrust of the argument today, was that somehow, this decision to award fees in this case is allowed to stand, the lower courts will be set off in all sorts of directions issuing all sorts of unpredictable opinions awarding fees.

And I respectfully suggest that the lower courts are entitled to a little more confidence than that.

Indeed a hundred years ago when this Court first extended and recognized the validity of an awarded fees in the common fund cases in the Trustees v. Greenough, that very argument was made that if you permit lower courts were familiar with the particular facts of a particular case to decide, that fees should be awarded.

We will be set off in a parade of horrors.

Chief Justice Warren E. Burger: Well, when that case was decided, there was a substantial body of precedent in state courts and the exercise of equity powers on the theory that there was a benefit conferred or a fund created, was there not?

Mr. Dennis J. Flannery: Mr. Chief Justice, what the court really looked to was -- it was a traditional English practice and most of the cases cited with a traditional equity powers of the English Court.

And I submit that that same equity power as exercised is really the same power that was exercised by the Court in this case.

Chief Justice Warren E. Burger: I'm little puzzled by your prior statement -- your earlier statement at the outset that you didn't think your friend was disagreeing too much with you.

I thought he had disagreed with you most violently and said there was utterly no precedent whatever of any kind for the allowance of attorney's fee's in cases of this kind.

Mr. Dennis J. Flannery: We'll if he did, he is certainly in error and I didn't understand him to say that.

In fact I think he conceded that there -- and in response to Mr. Justice Stewart's question, this Court has not directly passed on the private attorney general theory as such but certainly there is extensive precedent in the lower federal court.

Chief Justice Warren E. Burger: But the precedent in this Court.

Mr. Dennis J. Flannery: And I certainly I agree with that also Your Honor and just is Greenough, there was no precedent in this Court for recognizing an award of fee in context of the common fund.

But I think that the same considerations really that gave rise to the award in Greenough apply here.

Really what the Court was saying, is it fair in a circumstance as such as that when one individual has really had to take the burden of a litigation that goes far beyond any interest of his own.

Is it fair for that individual to bear the full burden of the litigation when there is an equitable mechanism available for spreading the cost.

And I believe that's exactly the same factor that the Court of Appeals below recognized in this situation.

And I think the Court of Appeals recognized and I think the record here demonstrates amply that this is a unique case, this is a truly extraordinary case.

The issues were extremely complex, the litigating burden that the respondents for no economic benefits had to assume was immense.

And that the results of the litigation were beneficial.

And they were not a benefit that in anyway adhere to the economic gain of the respondents.

Now a hundred years ago, much the same argument that Mr. Jordan has made today was made and this is what Justice Bradley said.

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 justice.

And I submit that that is precisely what happened in this case and that the Court with the greatest familiarity of this record and the Court which struggled with this case over period of five months in reaching that the decision in Wilderness Society want was it correct in ruling that this wasn't appropriate case for an award of fees.

Chief Justice Warren E. Burger: Do you think the equity power that you speak of are broad enough, so but if you had hypothetically a case where a volunteer non-profit organization rather sued and had litigation that kept on going for many, many months, for the extra ordinary amount of time involved.

But then was found you had no basis at all for the case and all the relief denied, do you think the Court would have the authority and appropriately charged fees against plaintiff in the acts involved?

Mr. Dennis J. Flannery: There is of course traditional powers under the observed behavior standard and also for a misuse of Court process as Courts have always had this power to punish and it really is a power to punish for frivolous litigation.

I would say to the extent that that sort of litigation was not frivolous but was not in the end, proven to be meritorious.

The traditional principles of the American rule, nothing else outstanding would probably dictate that each party bear its own fees.

And I think that what the Court of Appeals in this case said was that the very principles that stand behind the American rule which is that they aren't to be barriers toward litigating meritorious interest would permit an award of fees in this case who would not necessarily require and really shouldn't the wholesale abandonment of the American rule and every other context.

And I think what we are talking about here Mr. Chief Justice is a truly exceptional case.

Justice William H. Rehnquist: Well then it just boils down to the deeper pocket under your analysis doesn't it?

Mr. Dennis J. Flannery: I don't think so Your Honor.

I think what the Court said “Was look at this individuals who had no economic gain at all and look at the position they were in that they had to step into the breach to get the law enforced for no economic interest at all.”

That combined with the other factors cited by the Court, led it to the conclusion that if there was an equitable way of shifting some of that cost, it could do so.

Then on the other side of the point, it looked to see who that cost could be shifted to.

It determined that Alyeska for many of the factors, I have discussed this morning was certainly a responsible party in the litigation who really was responsible for many of the issues that were raised in the litigation was very active.

And then the last thing the Court looked to was, now if we do in light of those factors shift fees from the respondents to the petitioner, is there anyway that the shifting of fees could act as a deterrent to Alyeska or anyone else similarly situated to litigate its interest in Court and the Court said “No.”

Justice William H. Rehnquist: But supposing the procedural history here had been almost exactly the opposite where it had been determined that your client had been wrong at every juncture and then Alyeska comes in and asks for attorney's fees at the close of the situation.

Now I take it, your client probably isn't insolvent, would your client's resources be tested by the same standards as Alyeska's were in determining whether or not fees could be awarded?

Mr. Dennis J. Flannery: Well, I think here you're talking about really a different interest.

You're not talking about a very different purpose of an award.

Here you're saying that if you have litigation where one party wins and one party loses should the party that wins be awarded fees and I think the answer on the traditional American rule was “No.”

And what we're talking about here is a very limited exception where you do have, when the case is over the party which had to intervene simply because the law was not being upheld for anyone else.

Should that party as in this case compared with Alyeska be forced to bear that burden and I think the --

Justice Potter Stewart: Almost any party come in and say the law just isn't being enforced.

I'm going to enforce it.

Mr. Dennis J. Flannery: That's correct.

Justice Potter Stewart: It's pretty broad but by the way who's going to -- assume you when and where does the fee go?

Mr. Dennis J. Flannery: The fee that is awarded to me will go to the Center for Loan Social Policy which is the --

Justice Potter Stewart: Awarded to you, I thought -- who applied for fees, you or the client?

Mr. Dennis J. Flannery: Oh I'm sorry, the client applied for the fees.

Justice Byron R. White: And if it's awarded and the check is made out, to whom will it be made out.

Mr. Dennis J. Flannery: Well I presume, in most of these attorney's fees cases and this is certainly the way the NACP Legal Defense and Educational Fund Case has worked.

The fee is either made out to the client itself but the Court indicating that the fee is to go the lawyers --

Justice Byron R. White: Is this the client under any obligation to you to pay a fee?

Mr. Dennis J. Flannery: No obligation to pay a fee.

No, Your Honor.

Justice Byron R. White: And so that the client keeps the fee doesn't pass it on to you.

Mr. Dennis J. Flannery: No he would pass it on to the organization Your Honor.

Justice Byron R. White: I know but the organization would keep the -- the organization would keep the fee wouldn't pass it onto you.

Mr. Dennis J. Flannery: The Center for Law and Social Policy would keep the fee, I will not get a penny for it.

Justice Byron R. White: Is that a federally finance organization or partially federally finance.

Mr. Dennis J. Flannery: Not at all Your Honor.

Justice Byron R. White: It's not financed by the legal services corporation.

Mr. Dennis J. Flannery: No, Your Honor.

Justice Byron R. White: Or you know that you will never have.

Mr. Dennis J. Flannery: No, Your Honor that's principal founder is the Ford Foundation.

Chief Justice Warren E. Burger: I suppose there is tax payer money in there and in the broad sense that donations, contributions to wilderness society, a tax deductible.

Mr. Dennis J. Flannery: Yes.

Chief Justice Warren E. Burger: Some unidentifiable portion of it is the money that otherwise would have gone on tax.

Mr. Dennis J. Flannery: The Internal Revenue Services have been presented with the question and has ruled that awards of fees to that would go to groups such as a Center for Law and Social Policy are appropriate and it doesn't affect the basic charitable nature of the organization.

And of course as I indicated the individual lawyers will not be properly prompt.

Chief Justice Warren E. Burger: Let me bring up a question that probably is irrelevant but if none of the lawyers received any of this -- the lawyers have all been paid for their services.

But then as the matter of arithmetic, I suppose the center will be receiving more money as a result of this litigation than the center paid out to the lawyers who conducted this.

Mr. Dennis J. Flannery: Well I think that the standard and certainly this is the standard that the Fifth Circuit has a reached in a number of Civil Rights cases going over the years is that the appropriate standard should be the value of the legal services taking in a lot of other considerations.

And in a situation such as this, if lawyers are willing to take on these cases for less remuneration and certainly that the remuneration, I received would be a very small portion of what Mr. Jordan would receive for arguing the opposite side of the case, that that should not be the standard really, that would determine the award because otherwise it could really be the poorer the group and the more sacrificial the lawyer, the less the award would be and I think would present very, very difficult problem --

Chief Justice Warren E. Burger: In a sense the equity doctrine that was first articulated here a hundred years ago was always based on restoring the expense of litigation, was it not?

Mr. Dennis J. Flannery: Yes.

Chief Justice Warren E. Burger: No one made any profit out of it, except the sense that lawyers got fees, but no one had any margin in the old equity rule.

Mr. Dennis J. Flannery: But what we're talking about here I think a real economic burden and the question is if you have lawyers who are talking on this case as I did here for substantially less than what they would make and certainly as a father of 5, I can say it was substantially less.

Chief Justice Warren E. Burger: That gets us into some rather subjective factors.

Mr. Dennis J. Flannery: Well I think what the Courts are trying to is get away from the subjective factors by simply valuing the legal service and not getting into this question about just how much the salary was paid and how much the secretaries were paid.

And how much the typewriters cost and how much it costed to heat the room where we had to answer the 200 page brief.

And I think that the --

Justice William H. Rehnquist: But if the rationale is to not to deter litigation, I would think that the answer you just gave to the Chief Justice does not really support your proposition.

It may seem or perhaps a harsh result but if in fact lawyers are willing to bring these kinds of lawsuits for less than the going rate, the fact that they don't receive ordinary counsel fees apparently will not deter them.

Mr. Dennis J. Flannery: Oh I think it seriously does, there's no question that this litigation was one that that was one that the groups himself had to think very seriously about knowing what they were getting into and I can certainly say from a personal nature that I certainly had to think very seriously about it whether I was willing to take it on under the conditions that I knew I'd be working on and knowing that the nature and this --

Unknown Speaker: (Inaudible)

Mr. Dennis J. Flannery: Yes that's right.

Unknown Speaker: (Inaudible)

Mr. Dennis J. Flannery: Well the money is going to help because at least it will --

Unknown Speaker: (Inaudible)

Mr. Dennis J. Flannery: That's essentially right but I think it also permits the organization --

Unknown Speaker: (Inaudible)

Mr. Dennis J. Flannery: I don't think it does but I think the fee in this case which I think is based on this case alone is one that really talks about a real economic burden either that a lawyer gave up or didn't but we're talking about you know the actual facts.

I think that insofar as what's going to be done with the money, it certainly would be possible for the lawyers and for the group simply to say that the lawyers would receive whatever extra money they would get when they won the case and therefore would be made hold.

It just happens that lawyers with the senate as lawyers with NACP Legal Defense and Educational Funds have agreed that they will not take the extra money.

But I really don't see why that should be the distinction as to what the actual award should be.

Chief Justice Warren E. Burger: You might add.

Unknown Speaker: (Inaudible)

Mr. Dennis J. Flannery: I do, I --

Unknown Speaker: (Inaudible)

Mr. Dennis J. Flannery: Either way the organization will get as much as I can give it and I won't take anything.

Chief Justice Warren E. Burger: Your thesis might be equally applicable to cases where the Government brings an action.

Let's say any trust or other the enforcement in some economic area and the Government then sought fees from the losing party and made the claim that generally known in the profession of lawyers in the Department of Justice are working for less than they could get outside and therefore the difference should go under the Government's covers, but has any Court ever allowed the government that kind of cost of litigation?

Mr. Dennis J. Flannery: No but I think the Government is the attorney general and I think that it's generally understood that the when the Government brings litigation of course, and we're talking about really a solid base, their taxes which are going to support the Government lawyers, their pension funds, there's a hospitalization, there's retirement of a very different situation for a lawyer even though obviously lawyers and career lawyers are making sacrifices.

There are very different situation from a private lawyer who was really moving into the place of the Government for one reason or another who was then shouldering the burden and I think that this is -- this decision in this particular case is designed to lighten effort.

Thank you Mr. Chief Justice.

Chief Justice Warren E. Burger: Very well.

Mr. Jordan, do you have anything further?

Rebuttal of Robert E. Jordan Iii

Mr. Robert E. Jordan Iii: A few further observations Mr. Chief Justice.

It seems to be difficult to persuade Mr. Flannery of our good faith but I hope I'll do a better job with the Court.

The Court of Appeals said that our position was taken in good faith in view of the law in administrative practice.

I would just like to point out a few additional things.

The practice of special land use permits was supported by opinions of the Attorney General going back in to the 1870's.

Department of Interior had regulations on special land use permits for many years.

Perhaps most significant, in 1923, three years after the Mineral Leasing Act was enacted, there began a practice of giving in fact more land and the statute literally allowed for the purpose of pumping stations.

But that have been done for approximately 50 years when this litigation came along.

That had been codified in the Interior Regulations and it been expanded to include not only pumping stations but other necessary facilities.

Now that's an element of our good faith.

I would also point out that the Court of Appeals accepted this argument with respect to pumping stations and rejected the argument of the respondents on that point.

And finally I would say that in 1970, the Ninth Circuit had decided a case Sierra Club versus Hickel 433 fd 2d. 24 which was subsequently before this Court on the name of Sierra Club versus Morton on the basis of standing issue and resolved on the basis of standing issue.

The Ninth Circuit had allowed as an alternative holding the Department of Agriculture to tack if you will special land used permits onto a specific acreage limitation for recreation developments on the Mineral King development.

Now Mr. Justice Blackmun had something to say about that when the case was up before this Court but the point was that 1970 is relevant time, we were relying on that kind of opinion from the Ninth Circuit on a very closely related point.

Other discussions here about relative portions of the fees for various activities, like to just reemphasize the point I made in my principal argument.

The benefit which Mr. Flannery claims were benefits of the preliminary injunction.

Now presumably, no fees were sought for that because there was no deep pocket there to go after.

Alyeska was not applied to the litigation of the time the preliminary injunction did not become so for many months.

But most of the fees claim and certainly the fees claimed relating to the NEPA issues are of a nature having nothing to do with the benefits involving changing the pipe line construction that had already taken place largely by March of 1972 when the final environmental statement came up and most of that related the Trans Canadian alternative.

Now the District Court, the transcript of August 14, 15, 1972 when these issues were argued, just before lunch one of those days.

Judge Hart asked the respondents here, what do you really want?

What is it you want this Court to do in a way of an order?

Come back after lunch and tell me.

And that's the transcript of that proceeding which is referred to in appendix at 31.

After lunch, respondents came back and said “what we really want here is an addendum to the final environmental impact statement dealing with these common carter pipeline arrangements through Canada and Alaska.”

That's what the whole NEPA exercise was about, that's what respondents were seeking at that time and it has nothing absolutely nothing to do with bringing about changes in the construction of the pipeline.

One more point, with respect to who brought about these changes.

The record is not very satisfactory on this and the reason of course is that thing was initially determined by the Court of Appeals in the first instance, was not before the District Court.

And the record that we have here was not designed to shed light on the attorney's fees issues.

But if you were to go back to the record, you would find document after document after document that supports the notion that people like Oscar Furrence (ph) and Reuben catch a door and of the geological survey where the people who brought about the changes on burying an elevation.

Bob Page of the geological survey was a fellow who was in there saying time after time again you got a more closely examined the seismic, the earthquake problem and there's example after example that that could be given.

So the idea that there is a great contribution here is really one of the self congratulation I think and would not be supported on my detailed examination on the record.

With respect to the powers of equity, we're not challenged about the power of this Court.

We're not talking about power.

We're talking about wisdom here.

How should the equity power be exercised?

We say it should not be exercised against the party who was guilty of no wrong doing and we say further that it should not be exercised to create the kind of open ended private attorney General exception which is reflected in the Court of Appeals opinion.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.