concurring:
I join in the result and in Parts I, II, III of the court’s opinion, as well as substantially in Part V. However, I see the pertinent 1973 amendment to the Mineral Leasing Act (30 U.S.C. § 185(Z) (1976)) — discussed in Part IV of the court’s opinion — through a somewhat different prism, though my end-image is virtually the same.
We all agree that the text of that amendment does not specify the procedures by which the Government is to determine the expenses for which the leasing applicant is to give reimbursement, nor does it say whether the amendment is to be applied retrospectively. On the basis of its reading of the legislative history, the court believes that, in passing the amendment, Congress intended (a) that the authorized fees were to be assessed pursuant to regulation, and (b) that the modification could not be applied retrospectively to fees already incurred by applicants (including plaintiff). To me, both the statutory words and the legislative history — considered within their own confines — leave those questions in equal balance and unanswered — and the problem must therefore be solved for this case through extrinsic general rules.
The face of the amendment is wholly neutral on both questions. There is no reference to the issuance of regulations prior to a demand for reimbursement of "administrative and other costs incurred in processing the application.” Nor is there express or implied permission to require reimbursement without regulations. Similarly, the words of the amendment, by themselves, can be read as authorizing the conditioning of the actual grant of a right-of-way on reimbursement of such expenses — so that the post-1973 grant of a permit to Alyeska would not necessarily be a retroactive application of § 185(Z). On the other hand, there is certainly nothing in the text which explicitly applies the amendment to Alyeska.
*264The legislative history also seems most equivocal to me. The two branches of Congress first passed different versions; the Senate’s was more explicit in allowing reimbursement without regulation but the House bill was entirely silent on the matter and therefore could be construed either way. In the debates on these separate versions, some members of both Houses referred to the costs already incurred by the Government on the Alaska pipeline without indicating that Alyeska could ultimately be responsible for those costs. The Conference Committee adopted the House version and said nothing in its report about regulations or retroactivity. Speaking on the conference proposal, Senator Jackson, a very important figure in the legislation, said that the conferees "contemplate” the promulgation of regulations, but in the very next breath stated that with respect to the Alaska pipeline permit "it is anticipated” that the Government would be reimbursed for "line item[s]” (which I take to include the costs involved in this case). 119 Cong. Rec. 36824 (1973).1 But, as the court points out, both of those statements were made after the House had adopted the conference version which is neutral on these subjects.
The residue of the statutory text and the legislative history, for me, is that there is no objective indication that Congress as a whole addressed, and had any actual intention on, the precise question of whether Alyeska could or would be required under the new Act to reimburse the government costs now at stake. So far as I can judge, the 1973 amendment, considered by itself, neither empowered the Secretary of the Interior to impose reimbursement on Alyeska for these past expenses, nor did it preclude him from doing so. In a word, Congress left on this point a legislative gap in the 1973 modification.
That being so, I conclude that, for this plaintiff, the Independent Offices Appropriation Act, 31 U.S.C. § *265483(a)(1976) — discussed in Part III of the court’s opinion— continued in effect and governed the matter. Under the doctrine that implied repeals are not favored, that statute was not repealed or displaced (insofar as plaintiff is concerned) by the adoption of the 1973 amendment which left open the issue of the Government’s reimbursement by Alyeska. Indeed, as the court suggests, the references at various points in the 1973 Act’s legislative history to the Independent Offices Appropriation Act and its standards for reimbursement imply a favorable attitude toward the earlier statute and argue against an implied repeal. Under the Independent Offices Appropriation Act, the Secretary would have had to issue regulations in order to collect reimbursement from plaintiff (see Part III of the court’s opinion). That he had not done, and accordingly there was no valid basis under that Act to demand reimbursement.2
In accordance with the opinion of the court and a memorandum report of the trial judge, it was ordered on October 31, 1980 that a partial judgment be entered for plaintiffs on their first claim of $12,253,730, effective as of June 18,1980.
It may-be noteworthy that the Senator did not say that the proposed act called for or required regulations, but merely that the conferees "contemplated” the promulgation of regulations (possibly as if referring to an understanding with the Secretary of the Interior). Moreover, he did not say that the statute would authorize collection from plaintiff without the issuance of regulations, but merely that that eventuality was "anticipated” (again, possibly, as if referring to an understanding with the Secretary).
Like the court, I find it unnecessary to consider whether, if authorized by regulation, forced reimbursement would in this instance be constitutionally valid.
I join substantially in Part V of the court’s opinion because I believe that the Independent Offices Appropriation Act had the same purpose of benefitting applicants which the court finds in the 1973 amendment to the Mineral Leasing Act.