AMOCO PRODUCTION COMPANY, ET AL., PETITIONERS V. PEOPLE OF THE
VILLAGE OF GAMBRELL, ET AL.

   DONALD P. HODEL, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS V.
PEOPLE OF THE VILLAGE OF GAMBELL, ET AL.

   No. 85-1239 and 85-1406

   In The Supreme Court Of The United States

   October Term, 1986

   On Writs Of Certiorari To The United States Court Of Appeals For
The Ninth Circuit

   Brief For The Federal Petitioners

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statute involved
   Questions presented
   Statement
   Summary of argument
   Argument:
      I. The Ninth Circuit rule that Section 810 of
         ANILCA and comparable environmental procedural
         requirements deny federal district courts their
         traditional equitable discretion with respect
         to the issuance of injunctive relief is contrary
         to this Court's decision in Weinberger v.
         Romero-Barcelo, 456 U.S. 305 (1982)
     II. Section 810 of ANILCA does not apply to
         disposition of areas of the OCS because they are
         not "public lands" within the meaning of ANILCA
    III. The possibility that restrictions on
         subsistence may arise at the production stage
         would not, in any event, trigger Section 810's
         notice, hearing, and findings requirements at
         the leasing stage
     IV. A construction that Section 810 applies to
         the OCS should not in any event be applied
         retroactively to either Lease Sale 57 or 83
         because it would serve no meaningful statutory
         purpose and would upset settled transactions
         entered into in good faith
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-34a) /1/ is
reported at 774 F.2d 1414.  The opinion of the district court (Pet.
App. 35a-43a) is unreported.  An earlier opinion of the court of
appeals in this case (Gambell I) (Pet. App. 44a-65a) is reported at
746 F.2d 572.  An earlier opinion of the district court (Pet. App.
68a-69a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 79a-80a) was
entered on October 25, 1985.  On January 13, 1986, Justice Rehnquist
extended the time for filing a petition for a writ of certiorari to
and including February 22, 1986.  The petition was filed on February
21, 1986, and was granted on June 2, 1986.  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

                           STATUTE INVOLVED

   Pertinent provisions of the Alaska National Interest Lands
Conservation Act (ANILCA) are reproduced at Pet. App. 116a-122a.

                          QUESTIONS PRESENTED

   1. Whether the Ninth Circuit erroneously ruled that a district
court must, except in unusual circumstances, enter a preliminary
injunction whenever it finds a likely violation of a procedural
requirement of an environmental statute.

   2. Whether Section 810 of the Alaska National Interest Lands
Conservation Act (ANILCA), 16 U.S.C. 3120, which requires federal land
managers to determine whether proposed dispositions of public lands in
Alaska "would significantly restrict subsistence uses" and, if so, to
follow certain procedures and make certain findings prior to any such
disposition, applies to the outer continental shelf (OCS), when the
Act defines "public lands" as lands which are "in Alaska" and "the
title to which is in the United States."

   3. Whether, even if Section 810 applies to the OCS, neither OCS
leasing nor exploration may proceed until the Secretary of the
Interior complies with Section 810's procedural requirements for all
stages of the OCS program, including development and production.

   4. Whether a construction that ANILCA applies to the OCS should be
given retroactive effect, thereby casting a cloud over more than 600
previously issued OCS leases and $4.2 billion in bonus bids received
by the Treasury for those leases.

                               STATEMENT

   This case concerns exploratory drilling by lessees of the federal
government in two outer continental shelf (OCS) leasing areas in the
Bering Sea:  Norton Sound (Lease Sale 83).  In 1984, the court of
appeals ruled that Section 810 of ANILCA, 16 U.S.C. 3120, applies to
the OCS in Norton Sound, and remanded for further proceedings.  The
district court subsequently denied respondents' request for a
preliminary injunction against exploratory operations in Norton Sound,
which had been consolidated with a similar request involving such
operations in the Navarin Basin.  A divided panel of the court of
appeals reversed the district court on the ground that respondents'
showing of a likelihood of success on their claim that the Secretary
of the Interior violated Section 810 required the issuance of an
injunction, notwithstanding the countervailing equities and public
interest considerations that led the district court to deny injunctive
relief.

   1. Title VIII of ANILCA and OCS Leasing.  Congress enacted ANILCA,
16 U.S.C. 3101 et seq., on December 2, 1980, to preserve for future
generations "certain lands and waters in the State of Alaska that
contain nationally significant natural, scenic, historic,
archaeological, geological, scientific, wilderness, cultural,
recreational, and wildlife values" (16 U.S.C. 3101(a)).  To that end,
ANILCA established "conservation system unit(s)" (16 U.S.C. 3102(4)).
Additionally, ANILCA is intended to "provide the opportunity for rural
residents engaged in a subsistence way of life to continue to do so,"
as long as that opportunity is provided in a manner consistent with
"the purposes for which each conservation system unit is established"
(16 U.S.C. 3101(c)).

   Title VIII of ANILCA, 16 U.S.C. 3111-3126, creates a framework for
protecting "subsistence uses" /2/ by rural Alaskans.  Section 804, 16
U.S.C. 3114, provides that "subsistence uses shall be accorded
priority over the taking on such (public) lands of fish and wildlife
for other purposes." Section 805(a)(1) creates a mechanism for
administering the preference, directing the Secretary of the Interior
to create at least six "subsistence resource regions" which together
encompass "all public land" (16 U.S.C. 3115(a)(1)).  Within each
region the Secretary is to establish an advisory council and, "as he
finds necessary," other local advisory committees, in order to receive
the expertise of local residents on subsistence issues (16 U.S.C.
3115(a)(2) and (3)).  Section 805(d) directs the Secretary not to
implement Section 805(a) through (c) if the State "enacts and
implements laws of general applicability which are consistent with,
and which provide for the definition, preference, and participation
specified in, Sections 803, 804, and 805" (16 U.S.C. 3115(d)).  The
Secretary has acknowledged that the State's laws meet the requirements
of Section 805(d).  See, generally, Alaska Stat. Sections
16.05.010-16.05.950 (1983 & Supp. 1984).

   Section 810 provides that a federal agency must follow certain
procedures "(i)n determining whether to withdraw, reserve, lease, or
otherwise permit the use, occupancy, or disposition of public lands"
(16 U.S.C. 3120).  The federal agency having "primary jurisdiction"
over the effect of the action on subsistence uses and needs, the
availability of other lands for the purposes sought to be achieved,
and alternatives which would "reduce or eliminate the use, occupancy,
or disposition of public lands needed for subsistence purposes"
(ibid.).  If the action "would significantly restrict subsistence
uses," the federal agency must notify the appropriate state agency, as
well as any appropriate regional councils and local committees
(ibid.).  The federal agency then must hold a hearing in the vicinity
of the area involved, and make three findings (16 U.S.C. 312u(a)(3)):

         that (A) such a significant restriction of subsistence uses
      is necessary, consistent with sound management principles for
      the utilization of the public lands, (B) the proposed activity
      will involve the minimal amount of public lands necessary to
      accomplish the purposes of such use, occupancy, or other
      disposition, and (C) reasonable steps will be taken to minimize
      adverse impacts upon subsistence uses and resources resulting
      from such actions.

   2. The challenge to Lease Sale 57 (Norton Sound).  Lease Sale 57,
which took place in March 1983, was preceded by intensive study of
possible environmental impacts, including impacts on subsistence uses.
 The environmental impact statement (EIS) for Lease Sale 57 gave
considerable attention to possible impacts on subsistence uses (EIS
47-55, 136-148, 204, 206, 211-213, 223-224, 291-296) and concluded
that significant disruption of subsistence uses from all phases of OCS
operations was "unlikely" (id. at 142).  /3/ However, the Department
did not follow the specific procedures of Section 810 of ANILCA
because it was of the view that ANILCA did not apply to the OCS.

   Respondents, the native villages of Gambell and Stebbins, filed a
complaint on March 4, 1983, seeking injunctive relief against Lease
Sale 57.  The complaint charged that the Secretary had failed to
comply with Section 810 and that the sale conflicted with the
villagers' alleged aboriginal rights to the OCS.  The district court
denied the villages' motion for a preliminary injunction, and the sale
was held on March 15, 1983.  On April 4, 1983, the district court
denied the villages' motion for summary judgment.  It ruled that the
meaning of the phrase "public lands" -- 'land situated in Alaska' to
which the United States holds title" (Pet. App. 68a) -- is "clear."
Rejecting "plaintiffs' attempts to manufacture an ambiguity," the
court concluded that there is "no persuasive evidence that Congress
intended the phrase 'public lands', as used in Section 810(a), should
include offshore lands and waters outside the territorial boundaries
of Alaska" (id. at 69a).  The court also held that the villagers have
no aboriginal rights to the OCS (ibid.; see Inupiat Community of the
Arctic Slope v. United States, 548 F.Supp. 182, 186 (D. Alaska 1982),
aff'd on other grounds, 746 F.2d 570 (9th Cir. 1984), cert. denied,
No. 84-1801 (Oct. 7, 1985)).  Based on these rulings, the district
court granted summary judgment in favor of the government and the
intervenor oil companies (ibid.).  The villages appealed and moved in
the Ninth Circuit to enjoin the issuance of leases pending appeal.
That motion was denied by a panel of the court of appeals on May 10,
1983.  On that same day, 59 tracts were leased for bonus payments
totaling $317,873,372 (Minerals Management Service, Federal Offshore
Statistics 13 (1984)).

   3. Approval of exploration plans for Norton Sound.  Subsequent to
the district court's ruling, but prior to the court of appeals'
decision on the merits of the appeal, intervenors Exxon and ARCO
(among the petitioners in No. 85-1239) submitted exploration plans
covering a number of the tracts in Norton Sound on which they had
received leases.  Exploration is the third of the "four distinct
statutory stages to developing an offshore oil well" created by the
1978 amendments to the Outer Continental Shelf Lands Act of 1953
(OCSLA), 43 U.S.C. 1331 et seq. Secretary of the Interior v.
California, 464 U.S. 312, 337 (1984).  /4/ Exploration may proceed
only after the lessees demonstrate compliance with any applicable
state management program under the Coastal Zone Management Act, 16
U.S.C. 1451 et seq.  The Secretary approved Exxon's exploration plan
on December 28, 1983, and ARCO's plan on March 19, 1984.  Neither
respondents nor anyone else challenged the Secretary's approval of the
exploration plans within the 60-day period provided by 43 U.S.C.
1349(c).  Accordingly, exploration proceeded in Norton Sound during
the summer of 1984 with the drilling of several wells (see, e.g., J.A.
26).

   4. The court of appeals' decision in Gambell I.  On appeal, the
court of appeals reversed the district court's ruling on Section 810
and affirmed its ruling on the aboriginal claims on other grounds
(Gambell I, Pet. App. 44a-65a).  The court first addressed the
aboriginal claim by "assum(ing) rather than deciding that appellants
had an aboriginal right to hunt and fish in the waters of Norton Sound
above the lands involved in the lease-sale" (id. at 45a n.1).  The
court concluded that these rights had been extinguished by the Alaska
Native Claims Settlement Act (ANCSA), 43 U.S.C. 1603(b) (Pet. App.
46a-57a).

   The court next turned to Section 810, reviewing first the
legislative history of ANILCA to determine whether the phrase "public
lands" was intended to apply to the OCS.  Relying on several instances
where legislators appeared to refer to the OCS as being "in Alaska"
(Pet. App. 58a) and noting that ANCSA and Title VIII of ANILCA "are
clearly related," the court found it a "reasonable assumption that
Congress intended the preference and procedural protections for
subsistence uses mandated by Title VIII of (ANILCA) to be co-extensive
with the extinguishment of aboriginal rights that made those measures
necessary" (id. at 59a).  The court also found "compelling" that Title
VIII of ANILCA "was adopted to benefit the Natives" and on that basis
chose to resolve any "ambiguit(y)" in the statute in their favor (id.
at 62a-63a).  Accordingly, the court ruled that the phrase "public
lands" included "outer continental shelf lands and waters contiguous
to the State of Alaska (id. at 58a).

   The court of appeals did not reach the question whether Interior
had substantially complied with Section 810 in the course of complying
with other environmental statutes or, if not, whether the Sale 57
leases should be voided.  Instead, the court remanded the case to the
district court for a determination of those issues and the framing of
an appropriate remedy (Pet. App. 65a).

   5. Interior's post-Gambell I subsistence evaluation for Lease Sale
57.  In accordance with the court of appeals' decision in Gambell I,
Interior began to integrate the requirements of Section 810 into its
Alaska OCS leasing program.  With respect to Lease Sale 57, Interior
determined to reevaluate subsistence issues, including those already
studied in the EIS for the sale.  Interior's post-sale Section 810
evaluation was issued on April 22, 1985 (Pet. App. 81a-106a).  The
evaluation document followed the stage-by-stage approach set out in
the OCSLA (see note 4, supra) (id. at 84a).  The evaluation document
nonetheless analyzed, to the extent feasible, possible impacts that
might arise at those future stages of the OCS process (ibid.).

   The evaluation document found that the execution of leases (which
permits lessees to conduct only limited preliminary activities on the
OCS) had not and would not significantly restrict subsistence uses
(Pet. App. 103a).  The evaluation document further found that the
exploration stage activities that had occurred in Norton Sound to date
had not significantly restricted subsistence uses and were not likely
to do so in the future (id. at 103a), 106a).  The evaluation document
noted that a separate Section 810 evaluation would be performed for
each subsequent exploration plan submitted for the Secretary's
approval (Pet. App. 85a).  Finally, the evaluation document found
that, if development and production activities were ever conducted in
the Lease Sales 57 area, which was not likely, they might, in the
event of a major oil spill, significantly restrict subsistence uses
for limited periods in limited areas (id. at 92a-99a).  /5/ The
evaluation document stressed that more definitive judgments could be
made only if and when a particular development and production plan
were submitted for approval and that a separate Section 810 evaluation
would be prepared at that time (Pet. App. 85a).

   6. Lease Sale 83 (Navarin Basin).  Lease Sale 83 was conducted on
April 17, 1984, without litigation challenge, and resulted in the
leasing of 163 tracts for total bonus payments of $516,317,331
(Minerals Management Service, Federal Offshore Statistics 15 (1982)).
The Basin is so far from land -- more than 250 miles from the nearest
inhabited land (St. Lawrence Island) and more than 350 miles from the
mainland -- that no Native subsistence harvesting occurs there.
Nevertheless, the possible subsistence effects of Lease Sale 83 were
examined in the lease sale EIS (EIS III-60 to III-75, IV-20 to IV-68,
IV-81 to IV-90, IV-106, IV-112) and found to be negligible (id. at
IV-83 to IV-84).  /6/

   Interior approved exploration plans for the Navarin Basin on
December 28, 1984 (Exxon), January 23, 1985 (ARCO), and April 19, 1985
(Amoco).  These approvals were made after the court of appeals' ruling
in Gambell I and accordingly contained explicit Section 810
evaluations.  See, e.g., Pet. App. 107a-115a (Section 810 evaluation
for Exxon's exploration plan).  No challenges to these approvals were
brought within the 60-day period provided in 43 U.S.C. 1349(c)(3)(C).
In reliance on the approvals, the three companies proceeded to commit
more than $60 million in preparation for the 1985 drilling season
(J.A. 35-52).

   7. Proceedings on remand in the district court.  On April 3, 1985,
the villages returned to the district court seeking a preliminary
injunction against exploratory activities in the Lease Sale 57 area.
By that time, intervenor Exxon had committed more than $10 million
toward the drilling of two exploratory wells in Norton Sound during
the ice-free months of 1985 (J.A. 30-34).

   On April 23, 1985, more than a year after Lease Sale 83 had been
held, respondent Village of Gambell, joined by respondent Nunam
Kitlutsisti, an organization of Yukon Delta Natives, filed a complaint
seeking to void Lease Sale 83 and enjoin imminent exploratory drilling
in the Navarin Basin.  The Lease Sale 83 complaint, like that in the
Lease Sale 57 litigation, alleged violations of Section 810 and also
added a claim that the Secretary, by conducting the lease sale, had
breached trust duties owed to the Natives.

   After consolidating the requests for preliminary injunctions in the
Lease Sale 57 and Lease Sale 83 cases, the district court denied the
motions on May 23, 1985 (Pet. App. 35a-43a).  The court found that
respondents had "established a strong likelihood of success on the
merits" (id. at 43a).  Specifically, the court reasoned that even
though the Secretary's environmental impact statements for both lease
sales had included the type of evaluation of subsistence impacts
called for by Section 810, those evaluations were necessarily
deficient because the Secretary "did not have the policy precepts of
ANILCA in mind at the time of evaluation" (Pet. App. 37a-38a).  The
court went on to examine Interior's post-sale ANILCA compliance
document for Lease Sale 57 (see pages 7-8, supra).  The court did not
question that this document adequately evaluated the effects of
leasing on subsistence uses, nor did it question Interior's conclusion
that neither the leasing nor the exploration stage of the OCS process
would significantly restrict subsistence uses.  However, the court
concluded that the notice, hearing, and findings requirements of
Section 810(a)(1)-(3) should have been followed, in light of
Interior's determination that a significant restriction on subsistence
uses might occur at the development and production stage, should that
stage ever be reached (Pet. App. 40a-41a).

   The district court nevertheless concluded that the equities weighed
against the issuance of an injunction prohibiting continued
exploratory activities.  First, the OCSLA gives the Secretary
continuing power to control and shape the offshore leasing process;
hence, if compliance with the requirements of Section 810 reveals a
need to alter leasing conditions or configurations, the Secretary
retains the power to do so (Pet. App. 43a).  Second, it was apparent
that the only activity planned at this time, exploration, would not
significantly restrict subsistence uses (ibid.).  Third, the national
interest in expedited OCS exploration declared in 43 U.S.C. 1332(3)
might be frustrated by an injunction (Pet. App. 43a).

   8. The court of appeals' decision in Gambell II.  Respondents
appealed from the district court's denial of injunctive relief and
sought an emergency injunction against the ongoing exploratory
drilling in the two lease sale areas.  On June 6, 1985, a panel of the
court of appeals denied the motion, but directed the Secretary, in
conjunction with the intervenor oil companies, to file a "hold
harmless agreement that will protect (the villages) from any
consequences resulting from significant restrictions upon subsistence
uses by (the villages) of their lands" (Pet. App. 70a).  A hold
harmless agreement was submitted to the court of appeals on June 13,
1985 (id. at 72a-76a) and approved by the court, with minor revisions,
on June 21, 1985 (id. at 77a-78a).

   Exploratory drilling proceeded wihout incident in both lease sale
areas throughout the summer and fall of 1985.  On October 25, 1985, a
divided panel of the court of appeals reversed the district court's
denial of preliminary injunctive relief (Gambell II, Pet. App.
1a-34a).  The court of appeals affirmed the district court's ruling
that the villages had established a strong likelihood of success on
the merits, agreeing with the lower court that the Secretary could not
have substantially complied with Section 810 of ANILCA because he did
not have its mandate "clearly in mind" when he decided to conduct the
lease sales (Pet. App. 81-12a).  /7/ Turning to the post-sale Section
810 evaluation for Lease Sale 57 (see pages 7-8, supra), the court of
appeals agreed with the district court that Interior's finding that
development and production activities, if they ever occur, "may
significantly restrict subsistence uses in certain areas" (Pet. App.
85a) required the Secretary to conduct the hearing and make the
findings required by Section 810(a)(1)-(3) prior to conducting the
lease sales.  The court distinguished Secretary of the Interior v.
California, on the ground that the decision did not deal with ANILCA
(Pet. App. 13a).

   The court of appeals next held that the equitable considerations
relied upon by the district court in denying a preliminary injunction
did not "excuse its duty to issue an injunction in light of its
determination that there was a strong likelihood that the Villages
would prevail (on the merits)" (Pet. App. 15a).  The court of appeals
did not disagree with the district court's finding that "exploration
will not significantly restrict subsistence resources" (ibid.).
Instead, the court ruled that "'(i)rreparable damage is presumed'"
whenever an agency has failed to comply with "a substantive procedural
(requirement) of an environmental statute" (ibid., quoting Save Our
Ecosystems v. Clark, 747 F.2d 1240, 1250 (9th Cir. 1984)) and,
accordingly, an injunction is required except in "unusual
circumstances" (Pet. App. 15a, 19a).  The court of appeals limited
"unusual circumstances" to where enjoining a project from proceeding
in likely violation of an environmental statute would cause more
environmental harm than good (id. at 17a) or would interfere with
certain types of long-term contracts (id. at 16a, 19a).  In this case,
the court of appeals held that the district court erred in finding
"unusual circumstances" based on either the harm an injunction would
cause to the national interest in expedited OCS development or the
ability of the Secretary to alter the configuration of OCS activities
if ANILCA subsistence studies show that to be necessary at any future
stage of exploration or development (id. at 16a, 19a, 20a).

   The court of appeals rejected the district court's findings with
respect to the public interest, which were bottomed on the policy
declared by Congress in the OCSLA to expedite exploration of the OCS.
The court concluded that ANILCA effectively superseded this
congressional policy (Pet. App. 20a-21a).  Finally, the court rejected
arguments that it was improper to apply Gambell I retroactively to
Lease Sale 83 (id. at 22a-25a) and that the respondents' challenge to
Lease Sale 83 was barred by laches (id. at 25a-26a).

   District Judge Dimmick, sitting by designation, dissented (Pet.
App. 28a-34a).  Judge Dimmick noted that the government and the oil
company intervenors "presented the trial court with substantial
evidence showing that it was highly unlikely that exploratory
activities would adversely affect subsistence resources," as well as
evidence that the oil companies would have lost up to $70 million if
the preliminary injunction had been granted (id. at 30a).  In
contrast, the villages had presented only evidence of "speculative
harm" (ibid.).  The dissent asserted (id. at 29a) that the majority's
"rigid approach to the issuance of an injunction" was contrary to
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982).  The dissent also
disagreed (Pet. App. 31a-32a) with the majority's retroactive
application of Gambell I to Lease Sale 83.

                          SUMMARY OF ARGUMENT

                                   I

   Under traditional principles of equity, a mere showing that a
statute has been or likely has been violated is not sufficient to
require the extraordinary remedy of injunctive relief.  The court must
also determine whether injunctive relief is necessary to avoid
irreparable injury to the party seeking that relief and consider the
harm to others, as well as the public consequences, that such relief
would entail.  Applying these principles in this case, the district
court properly denied respondents' request for a preliminary
injunction on the ground that both the balance of irreparable harm and
the public interest counseled against injunctive relief.

   The court of appeals reversed on the erroneous ground that federal
district courts lack their traditional equitable discretion in the
enforcement of the procedural requirements of environmental statutes,
such as Section 810 of ANILCA.  Specifically, the court held that
district courts must, except in unusual circumstances, presume both
that "irreparable harm" has resulted from a likely violation of an
environmental procedural requirement and that the "public interest"
elevates environmental values over other competing public concerns.
Because neither of these limitations on the district courts' equity
jurisdiction is rooted in clearly expressed congressional intent,
their imposition is inconsistent with this Court's decision in
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982).  Nowhere in ANILCA
did Congress suggest that injunctive relief is invariably required to
preserve the efficacy and policy objectives of the Section 810
procedures.  Nor did Congress anywhere suggest that those policy
objectives supersede all other public interest concerns relevant to an
award of injunctive relief in a particular case.

   The circumstances of this case underscore the inappropriateness of
applying such unsupported generalizations.  Injunctive relief is
plainly not necessary in this case to preserve the meaningfulness of
Section 810 procedures or to redress any irreparable injury to
respondents' interests.  If it is ultimately resolved that Interior
violated Section 810, compliance may be achieved before the
development and production stage, which is the only stage that poses
even a potential threat of a significant restriction on subsistence
uses.  Accordingly, because no significant restrictions were
threatened absent an injunction, no public interest concerns favored
the issuance of such relief.  Concomitantly, the court of appeals'
refusal to consider the weighty public interest considerations
counselling against injunctive relief -- particularly the express
congressional goal of expedited exploration and development of the OCS
-- was without legal basis.

                                  II

   At all events, the relief in this case was predicated solely on the
likelihood of a violation of a statutory requirement that is entirely
inapplicable to the actions at issue.  Section 810 of ANILCA, 16
U.S.C. 3120, does not require a federal agency to evaluate the effects
of every category of federal actions that might adversely affect
subsistence resources.  Section 810 concerns only effects on
subsistence uses caused by proposed dispositions of "public lands,"
which ANILCA defines as lands that are both "situated in Alaska" and
"the title to which is in the United States" (16 U.S.C. 3102(2) and
(3)).  The OCS meets neither statutory criterion.  The OCS is, by
definition, outside the boundaries of Alaska, and Congress has
carefully and repeatedly declined to equate the federal government's
interest in the OCS with the concept of title.  Hence, dispositions of
the OCS necessarily fall outside the scope of Section 810 even if they
might affect subsistence resources.

   Respondents' contrary view ignores the plain meaning of the
statutory definition of "public lands" and mistakenly relies on
isolated, casual remarks in the legislative debates and canons of
statutory construction relevant only to the judicial construction of
ambiguous statutory terms.  In all events, ANILCA's legislative
history and background and its statutory structure confirm that
Congress did not intend to depart from traditional practice by
including the OCS within "public lands." The clear consensus of the
legislators, reflected throughout the Act's legislative history, was
that its requirements would not extend beyond the state's boundaries
and therefore would have no effect on oil and gas development on the
OCS.

                                  III

   Even if Section 810 of ANILCA were thought to apply to the OCS, the
court of appeals erred in rejecting the Secretary's post-sale
compliance effort for Sale 57.  In its Section 810 evaluation,
Interior found that the lease sale stage of the OCS leasing process
would not lead to significant subsistence restrictions;  accordingly,
the additional notice, hearing, and findings requirements of Section
810 were not followed.  The Section 810 evaluation noted as well that
if the development and production stage were reached, which was
unlikely, a significant subsistence restriction might occur in certain
localities.  The court of appeals ruled that the mere threat of a
significant restriction at the development and production stage
triggered the notice, hearing, and findings requirement of Section
810(a)(1)-(3), 16 U.S.C. 3120(a)(1)-(3), at the leasing stage.  This
construction of Section 810 conflicts with its plain language and is
inconsistent with this Court's decision in Secretary of the Interior
v. California, 464 U.S. 312 (1984).

   In Secretary of the Interior v. California, this Court concluded
that because the OCS leasing process consists of distinct stages, with
each stage involving separate regulatory review and an additional
transfer of rights to conduct activities on the OCS, the lease sale
stage could not be deemed to have a "direct effect" on the coastal
zone based on impacts potentially arising only at later stages.  By
its plain terms, Section 810 applies to each distinct stage
separately;  hence, as in Secretary of the Interior v. California, a
lease sale should not be deemed to restrict significant subsistence
resources based on restrictions potentially occurring (if at all) only
at the development and production stage.  To be sure, in performing a
Section 810 evaluation for one stage, the agency may look to possible
future stages, but for the purposes of determining whether the
additional procedural requirements of Section 810 are triggered, the
only relevant inquiry is whether the particular disposition of lands
at issue -- in this case the lease sale -- "would significantly
restrict subsistence uses" (16 U.S.C. 3120).  In any event, because
the Secretary found in this case that the development and production
stage is not likely to occur at all, it is clear that the statutory
standard that the proposed disposition "would significantly restrict
subsistence uses" has not been met.

                                  IV

   Finally, even if this Court should agree with the court of appeals
in Gambell I that Section 810 of ANILCA applies to the OCS, that
construction should not, under this Court's criteria in Chevron Oil
Co. v. Huson, 404 U.S. 97, 106-107 (1971), be applied retroactively to
either Lease Sale 57 or Lease Sale 83.  First, Gambell I declared a
new principle of law, which differed from prior agency construction
and the district court's construction.  Second, retroactive
application of Gambell I would further no policy objective of Section
810 because Interior consistently carried out substantial pre-leasing
analyses of subsistence pursuant to NEPA.  The Department of the
Interior has announced, moreover, that it will not (if Gambell I is
upheld) approve exploration or production plans without additional
Section 810 reviews.  Finally, the equities weigh strongly against
retroactive application.  Balanced against respondents' desire for a
reevaluation of matters already thoroughly studied are the strong
public interest in avoiding unnecessary disruptions to OCS
development, as well as the enormous investments made by the oil
companies pursuant to the lease sales.

                               ARGUMENT

 I. THE NINTH CIRCUIT RULE THAT SECTION 810 OF ANILCA AND COMPARABLE
ENVIRONMENTAL PROCEDURAL REQUIREMENTS DENY FEDERAL DISTRICT COURTS
TRADITIONAL EQUITABLE DISCRETION WITH RESPECT TO THE ISSUANCE OF
INJUNCTIVE RELIEF IS CONTRARY TO THIS COURT'S DECISION IN WEINBERGER
V. ROMERO-BARCELO, 456 U.S. 305 (1982)

   The court of appeals' ruling that the district court abused its
discretion in denying respondents' motion for a preliminary injunction
is inconsistent with this Court's decision in Weinberger v.
Romero-Barcelo, 456 U.S. 305 (1982).  The district court denied that
motion on the grounds that "(t)he balance of irreparable harm does not
favor the (respondents)" and that "(t)he public interest favors
continued oil exploration" (Pet. App. 43a).  The court stressed that
"delay in the exploration of the OCS may cause irreparable harm to
this nation's quest for new oil resources and energy independence,"
contrary to explicit congressional policy (see 43 U.S.C. 1332(3)), and
that "exploration will not significantly restrict subsistence
resources" (Pet. App. 43a).  In reversing, the court of appeals
disputed the district court's characterization of the "public
interest" (id. at 19a-21a), but did not disturb its finding that an
injunction was not necessary to prevent irreparable harm to
respondents' interests.  /8/ Instead, the appellate court purported to
distinguish Romero-Barcelo, in which this Court stressed that "the
basis for injunctive relief in the federal courts has always
(included) irreparable injury" and upheld a district court's refusal
to follow a different approach for violations of the Clean Water Act,
33 U.S.C. 1251 et seq. (456 U.S. at 312, 314-320).  See Pet. App.
21a-23a n.2.  In our view, Romero-Barcelo is controlling and, as in
that case, the district court's denial of injunctive relief was
proper.

   1. In Romero-Barcelo, this Court thoroughly reviewed basic
principles of equity jurisprudence in the federal courts and
addressed, in particular, the application of those principles to
violations of federal statutes, including federal environmental
protection laws.  Starting with the proposition that an injunction
"'is not a remedy which issues as of course'" (456 U.S. at 311
(quoting Harrisonville v. W.S. Dickey Clay Mfg. Co., 289 U.S. 334,
337-338 (1933)), the Court stated that the foundation for "injunctive
relief in the federal courts has always been irreparable injury and
the inadequacy of legal remedies" (456 U.S. at 312).  Moreover,
consideration of the equities is essential:  "Where plaintiff and
defendant present competing claims of injury, the traditional function
of equity has been to arrive at a 'nice adjustment and reconciliation'
between the competing claims" (ibid. (quoting Hecht Co. v. Bowles, 321
U.S. 321, 329 (1944)).  "'The essence of equity jurisdiction,'" the
Court stated, is "'to mould each decree to the necessities of the
particular case.  Flexibility rather than rigidity has distinguished
it'" (456 U.S. at 312).  Finally, the Court admonished that "courts of
equity should pay particular regard for the public consequences in
employing the extraordinary remedy of injunction" (ibid.).

   These principles apply with special force to the issuance of
preliminary injunctions.  In the preliminary injunction context, the
court will often not have had an opportunity to consider fully the
merits of the case, /9/ thereby making the sole justification for the
exercise of equitable power the maintenance of the status quo pending
completion of the litigation.  Cf. Scripps-Howard Radio, Inc. v. FCC,
316 U.S. 4, 9-11 (1942).  Accordingly, the plaintiff must demonstrate
that, in the absence of a preliminary injunction, it will suffer
actual and substantial injury that is truly irreparable, i.e.,
incapable of remedy by relief ordered at the termination of the
litigation.  See Sampson v. Murray, 415 U.S. 61, 90 (1974).  Moreover,
the court must consider the injury to the defendant and the public
interest that would be occasioned by the entry of even a temporary
injunction.  See, e.g., Doran v. Salem Inn, Inc., 422 U.S. 922, 931
(1975).  In an appropriate case, irreparable damage to the public
interest will justify withholding preliminary relief even though the
burden on the plaintiff is substantial.  Yakus v. United States, 321
U.S. 414, 440-441 (1944).  /10/

   In this case (and in those prior decisions upon which the court of
appeals relied), the Ninth Circuit rejected these well established
principles and applied a rule that, in effect, requires a district
court to enter the injunction requested by the plaintiffs whenever it
finds a violation, or probable violation, of a "substantive
procedural" /11/ requirement of an environmental statute (Pet. App.
14a-19a).  /12/ That rigid approach to injunctive relief in
environmental suits cannot be reconciled with Romero-Barcelo.  For,
without basis in expressed congressional intent, it sharply curtails,
if not eliminates altogether, the traditional authority of federal
courts to consider the equities of awarding injunctive relief in a
particular case.

   This Court made plain in Romero-Barcelo that while "Congress may
intervene and guide or control the exercise of the courts' (equitable)
discretion, * * * we do not lightly assume that Congress has intended
to depart from established principles" (456 U.S. at 313 (citations
omitted)).  "'(C)omprehensiveness of * * * equitable jurisdiction is
not to be denied or limited in the absence of a clear and valid
legislative command.  Unless a statute, in so many words, or by a
necessary and inescapable inference, restricts the court's
jurisdiction in equity, the full scope of that jurisdiction is to be
recognized and applied.'" Ibid. (quoting Porter v. Warner Holding Co.,
328 U.S. 395, 398 (1946);  see also 456 U.S. at 322 (Stevens, J.,
dissenting)) ("Unless Congress specifically commands a particular form
of relief, the question of remedy remains subject to a court's
equitable discretion.").  The "purpose and language of the statute
under consideration * * * , not the bare fact of a statutory
violation," determine whether Congress took the extraordinary step of
curtailing the courts' discretion in the exercise of their equitable
jurisdiction (456 U.S. at 314).

   Hence, in TVA v. Hill, 437 U.S. 153 (1978), this Court held that a
permanent injunction was required precisely because the statutory
provision that was violated (Endangered Species Act, 16 U.S.C. 1536)
amounted to a "flat ban" for which "only an injunction could vindicate
(its) objects" (Romero-Barcelo, 456 U.S. at 314).  By contrast, in
Romero-Barcelo the Court held that in the Clean Water Act, 33 U.S.C.
1251 et seq., Congress has not evinced in the language, structure of
the Act, or its legislative history sufficient intent to "deny courts
their traditional equitable discretion" (456 U.S. at 319).  While the
Clean Water Act plainly prohibits discharges into navigable waters
absent a federal permit (see 33 U.S.C. 1311) and the Navy in that case
had no permit, the Court concluded that accomplishment of the Act's
objectives did not require the issuance of an injunction.

   2. Here, as in Romero-Barcelo, there is no clear indication that
Congress intended to deny federal district courts their traditional
equitable discretion in enforcing Section 810 of ANILCA.  Section
810's requirement that certain steps be taken prior to a proposed
disposition of public lands that would significantly restrict
subsistence uses does not address the distinct issue whether a
district court must award certain relief when a violation or a likely
violation of that requirement has been established.  Indeed, the
inherently procedural nature of Section 810 strongly suggests that
Congress did not intend to deny the courts their traditional equitable
discretion.  By its very nature, a procedural requirement is ancillary
to the substantive policy objectives of the statute and, hence,
whether its violation requires the extraordinary remedy of injunctive
relief should normally turn on the particular circumstances of the
case.  See Romero-Barcelo, 456 U.S. at 314 ("Respondents suggest that
failure to enjoin the Navy will undermine the integrity of the permit
process by allowing the statutory violation to continue.  The
integrity of the Nation's waters, however, not the permit process, is
the purpose of the (Clean Water Act).").  Similarly, here Congress
stressed both that Section 810's requirements are "procedural" and
that, once those requirements are satisfied, "the proposed action may
proceed even though its effect may be adverse to subsistence uses" (S.
Rep. 96-413, 96th Cong., 1st Sess. 234 (1979)).

   The court of appeals' contrary analysis rests on two premises.  The
first is that "'(i)rreparable damage is presumed when an agency fails
to evaluate thoroughly the environmental impact of a proposed action'"
(Pet. App. 15a, quoting Save Our Ecosystems v. Clark, 747 F.2d 1240,
1250 (9th Cir. 1984)).  The second is that the "public interest"
favors injunctive relief because the interests served by federal
environmental procedural requirements, such as ANILCA, supersede all
other interests that might be at stake in a particular case (see Pet.
App. 19a-21a, 23a n.2;  see also Save Our Ecosystems, 747 F.2d at
1250).  The fundamental flaw in these premises is that neither is
based on clear expression of congressional intent.  /13/ Their
inappropriateness in the circumstances of this case, moreover, both
exposes the dangers of such unsupported generalizations and
underscores the importance of traditional case-by-case review.

   a. First, while we fully agree that the possibility of irreparable
harm must be a central focus of the judicial inquiry in environmental
cases, there is no basis for presuming that such harm will invariably
occur unless injunctive relief is provided to remedy a violation of an
environmental statutory requirement, such as Section 810 of ANILCA.
Where, as here, the moving party has made no showing of irreparable
harm and the purpose of the requirement purportedly violated is
largely to assess the environmental impact of the proposed
governmental action (rather than flatly to prohibit it), the propriety
of injunctive relief should turn on traditional considerations,
including whether such relief is necessary to render compliance with
the requirement meaningful.  As other courts of appeals have properly
recognized, an injunction to redress a violation of an environmental
statute, particularly an environmental procedural requirement, is not
always necessary to preserve the decisionmaker's opportunity to
implement the statute in the manner intended by Congress.  See, e.g.,
Alaska v. Andrus, 580 F.2d 465, 485 (D.C. Cir.) (injunction against an
ongoing project available only where necessary "to preserve for the
relevant decisionmaker the full opportunity to choose among
alternatives that is contemplated by (the National Environmental
Policy Act (NEPA), 42 U.S.C. 4331 et seq.)"), vacated in part on other
grounds as moot sub nom. Western Oil & Gas Ass'n v. Alaska, 439 U.S.
922 (1978);  see also Massachusetts v. Watt, 716 F.2d 946, 952 (1st
Cir. 1983);  Sierra Club v. Hennessy, 695 F.2d 643, 648-649 (2d Cir.
1982).

   Here, there is no reason to believe that additional exploratory
drilling by the oil companies would have made future compliance with
Section 810 meaningless either in fulfilling its procedural
requirements or in accomplishing its policy objectives.  If it is
ultimately resolved that Interior violated Section 810, compliance may
be effected before the production stage -- the only stage that poses
even a potential threat of a significant restriction on subsistence
uses (see page 8, supra).  Interior made explicit findings that
exploration would not significantly restrict subsistence resources in
the two lease sale areas (see Pet. App. 85a, 90a, 92a, 95a, 98a, 99a,
101a, 103a, 106a, 108a-115a), and those findings have neither been
challenged by respondents nor questioned by the court below.  Indeed,
the district court explicitly found (id. at 43a) that the injury
Section 810 was intended to prevent -- significant restrictions on
subsistence uses -- was highly unlikely to result from exploration
activities, and that Interior possesses adequate continuing authority
over the OCS development process to cure any statutory violation.  An
order directing Interior to comply with Section 810 would, therefore,
be at least as effective as the order issued by the district court in
Romero-Barcelo, which directed the Navy to apply for discharge permit
under the Clean Water Act (see 456 U.S. at 309-310).  /14/ As in
Romero-Barcelo, injunctive relief is not automatically necessary.  The
court of appeals, however, gave no deference to the district court's
findings, and undertook no particularized analysis regarding whether
irreparable harm would result to the interests protected by the
statute -- the finding of probable statutory violations started and
ended its inquiry.  /15/

   b. Similarly, the court of appeals' assumption that the "public
interest" automatically favors an injunctive remedy for violations of
environmental procedural statutes lacks the necessary supporting
indicia of congressional intent and is rebutted by the circumstances
of this case.  Contrary to the reasoning of the court of appeals,
ANILCA plainly does not evince an unambiguous congressional intent to
"cho(ose) the protection of subsistence life over oil exploration"
(Pet. App. 23a n.2).  To be sure, Title VIII of ANILCA, including
Section 810, was intended "to provide the opportunity for rural
residents engaged in a subsistence way of life to continue to do so"
(16 U.S.C. 3101(c)).  But the Act nowhere suggests that goal is to be
achieved without compromise and no matter what the costs -- indeed, as
previously described (page 23, supra), quite the opposite is true (see
S. Rep. 96-413, supra, at 234).  /16/

   Because the court of appeals erroneously assumed that the "public
interest" favored an injunction, that court failed to consider either
Interior's and the district court's findings that significant
subsistence restrictions were not at stake (see pages 8, 9, 10, supra)
or the weighty countervailing public interest considerations
counseling against injunctive relief in this case.  Most
fundamentally, as the district court found (Pet. App. 43a), enjoining
exploratory activities threatens to cause irreparable harm to the
congressionally mandated goal of expedited exploration and development
of the OCS (see 43 U.S.C. 1802(1), 1802(9)).  And, as the dissent
below recognized (Pet. App. 30a), if the district court had enjoined
exploratory activities at the outset of the 1985 season, as
respondents had requested, such relief would have caused huge
unrecoverable monetary losses to the intervenor oil companies, whose
expenditures were made in reliance upon the Secretary's unchallenged
approvals of their exploration plans.  In sum, the application in this
case of the court of appeals' preclusion of traditional equitable
discretion has led to the entry of injunctive relief serving no
substantial purpose other than to threaten irreparable harm to the
public interest in expedited exploration and development of the OCS.

 II. SECTION 810 OF ANILCA DOES NOT APPLY TO DISPOSITION OF AREAS OF
THE OCS BECAUSE THEY ARE NOT "PUBLIC LANDS" WITHIN THE MEANING OF
ANILCA

   At all events, the relief in this case was predicated solely on the
likelihood of violation of an environmental statutory requirement that
is entirely inapplicable to the actions at issue.  Section 810 of
ANILCA requires a federal agency to evaluate the effect of its
proposed disposition of "public lands" in Alaska on subsistence uses
and needs (16 U.S.C. 3120).  Its terms do not apply to any other
federal actions that may affect subsistence uses and needs in Alaska.
The only actions of the Secretary of the Interior at issue in this
case exclusively concern the OCS -- which is not an area of "public
lands" within the meaning of ANILCA.  Respondents' contrary view,
adopted by the court of appeals, ignores the plain meaning of the term
"public lands," as expressly defined in ANILCA.  Respondents' reliance
on isolated, casual remarks in the legislative history and canons of
statutory construction for ambiguous statutory terms, therefore, is
misplaced;  in all events, both the legislative history and the
statutory structure of ANILCA confirm the view that the OCS lies
outside Section 810's scope.

   1. "(D)eference to the supremacy of the legislature, as well as
recognition that congressmen typically vote on the language of a bill,
generally require us to assume that 'the legislative purpose is
expresed by the ordinary meaning of the words used.'" United States v.
Locke, No. 83-1394 (Apr. 1, 1985) slip op. 10 (quoting Richards v.
United States, 369 U.S. 1, 9 (1962)).  In ANILCA, Congress carefully
crafted a definition of "public lands" that leaves no room for an
inference that Congress intended to include the OCS.  /17/ For the
purposes of ANILCA, "public lands" is defined (with certain exceptions
not relevant here) as "land(s) situated in Alaska which, after (the
date of enactment of this Act), are Federal lands" (16 U.S.C.
3102(3)).  "Federal land(s)" is defined as "lands the title to which
is in the United States after (the date of enactment of this Act)" (16
U.S.C. 3102)).  Since the OCS is not "situated in Alaska" and does not
constitute "lands the title to which is in the United States," it
falls outside the statute on either account.

   First, the OCS is plainly not, by its very terms, "situated in
Alaska." The OCS is "seaward and outside of the area of lands beneath
navigable waters" granted to the states by the Submerged Lands Act, 43
U.S.C. 1311, which is that portion of the continental shelf lying
within three miles from the state's coast line (see 43 U.S.C. 1312;
43 U.S.C. 1331(a)).  Portions of the OCS, including areas involved in
Lease Sale 83, are located as far as 350 miles from Alaska's borders.
Alaska's seaward boundaries, like those of other coastal states, do
not include the OCS because they extend only to those lands conveyed
by the Submerged Lands Act (see Alaska Statehood Act, Pub. L. No.
85-508, Section 6(m), 72 Stat. 343).

   Second, the OCS is not "federal land" as defined by the Act.
ANILCA's definition of "federal lands" reflects the traditional notion
that public lands are only those in which the United States holds
formal "title." During the last four decades, however, Congress has
deliberately and repeatedly declined to equate the federal
government's interest in the OCS with formal title.  The United States
asserts only "sovereign rights (over the OCS) for the purpose of
exploring and exploiting its natural resources" (Convention on the
Continental Shelf, done Apr. 29, 1958, art. 2, para. 1, 15 U.S.T. 471,
T.I.A.S. No. 5578, 499 U.N.T.S. 311);  /18/ it does not claim "title
or ownership in the conventional sense" (United States v. Louisiana,
339 U.S. 699, 704 (1950);  see also United States v. Maine, 420 U.S.
515, 517 (1975);  Treasure Salvors, Inc. v. Unidentified Wrecked &
Abandoned Sailing Vessel, 569 F.2d 330, 339-340 (5th Cir. 1978);  see
generally G. Coggins & C. Wilkinson, Federal Public Land and Resources
Law 433-434 (1980) ("The various forms of jurisdiction and sovereignty
that the United States has asserted over offshore areas do not amount
to a claim of fee ownership of the underlying lands nor to an
assumption of complete, exclusive jurisdiction over the waters.")).

   Congressional enactments reflect this settled and carefully drawn
characterization of the federal interest in the OCS.  In the Submerged
Lands Act of 1953, 43 U.S.C. 1301 et seq., Congress carefully
distinguished the "title" to the seabed granted to the states from the
"jurisdiction and control" over the OCS retained by the federal
government.  See 43 U.S.C. 1302, 1311(a)(1), 1314(a).  In the Outer
Continental Shelf Lands Act of 1953, enacted just a few months later,
Congress similarly avoided a formal claim of title and instead
declared that "the subsoil and seabed of the outer Continental Shelf
appertain to the United States and are subject to its jurisdiction,
control, and power of disposition" (Act of Aug. 7, 1953, ch. 345,
Section 3(a), 67 Stat. 462).  /19/ More recently, in 1978 during its
comprehensive overhaul of the 1953 OCS legislation, Congress
specifically rejected a finding included in the House-passed bill that
would have declared "that OCS lands and resources are public property
held in trust" (see H.R. Conf. Rep. 95-1474, 95th Cong., 2d Sess. 75
(1978)) and retained the more limited characterization of the federal
interest in the OCS propounded in 1953 (see 43 U.S.C. 1332(1);  H.R.
Rep. 95-1474, supra, at 79).  Finally, the Report of the House
Committee on Merchant Marine and Fisheries on the 1985 OCSLA
amendments (included in the Consolidated Omnibus Budget Reconciliation
Act of 1985, Pub. L. No. 99-272, Sections 8001-8005, 100 Stat.
147-151) authoritatively reaffirms this consistent view:

         The term "public lands" enjoys two centuries of
      well-established meaning as it has been used by the U.S.
      Congress and interpreted by the Supreme Court.  Two fundamental
      criteria determine whether or not a land area constitutes public
      lands;  the holding of title to the area and the ability to sell
      or otherwise dispose ot it.

                      * * * * *

         The U.S. does not hold title to the OCS, nor is the OCS
      subject to "sale or other disposition under general laws." As
      opposed to full dominion and control the U.S. had claimed only
      limited sovereignty over the exploration and development of the
      natural resources on and within the OCS.

H.R. Rep. 99-300, 99th Cong., 1st Sess. 591 (1985).

   In the absence of any clear indication that Congress intended to
depart abruptly from its otherwise uniform practice in the context of
ANILCA (and we have found none), /20/ it should not be assumed that
Congress adopted a different view when it enacted ANILCA.
Accordingly, in this respect as well, the definitional provisions of
ANILCA exclude the OCS from Section 810's scope.

   2. Although where, as in this case, the meaning of the statutory
language is plain, that should be "the end of the matter" (Chevron
U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842
(1984)), the structure of ANILCA and its legislative history and
background further corroborate the plain meaning of these definitional
provisions.  ANILCA was the third in a series of congressional
enactments, commencing with the Alaska Statehood Act in 1958 and ANCSA
in 1971, concerned with the allocation of "public lands" in Alaska.
See S. Rep. 95-1300, 95th Cong., 2d Sess. 103, 108-109 (1978);  H.R.
Rep. 95-1045, 95th Cong., 2d Sess. Pt. 1, at 65-77, 189, 192-195,
222-223 (1978);  see also H.R. Rep. 96-97, 96th Cong., 1st Sess. Pt.
2, at 153-172 (1979).  In neither of those earlier laws, however,
could Congress possibly have contemplated that the OCS would fall
within the scope of public lands in Alaska.  In the Statehood Act,
Congress permitted the State of Alaska to select 102,550,000 acres of
vacant and unreserved "public lands * * * in Alaska" within 25 years
of its admission (Pub. L. No. 85-508, Section 6(b), 72 Stat. 340).
Similarly, ANCSA provided that Native Alaskans could select up to 40
million acres of certain "public lands" (43 U.S.C. 1611;  see 43
U.S.C. 1610(a)), and "public lands" was defined as "all Federal lands
* * * located in Alaska" (43 U.S.C. 1602(e)).  It is inconceivable
that Congress intended to allow either the State of Alaska or Native
Alaskans to select portions of the OCS -- "a vital national resource
reserve held by the (government) for the public" (43 U.S.C. 1332(3)).
/21/ These provisions shed further light on the meaning of "public
lands" in ANILCA, the third in the series of related enactments.  Cf.
Huddleston v. United States, 415 U.S. 814, 326 (1974).

   The structure of ANILCA further suggests that Congress did not
intend, sub silentio, to expand the meaning of "public lands." For
example, Section 810 itself places the duty to perform a subsistence
evaluation on "the head of the Federal agency having primary
jurisdiction over such lands" (16 U.S.C. 3120(a)).  The statutory
reference to "primary jurisdiction" was plainly drafted solely with
onshore lands in mind.  Although there are specific federal agencies
with primary jurisdiction over traditional onshore public lands (see,
e.g., 30 U.S.C. 352;  see also H.R. Rep. 95-1045, supra, Pt. 1, at
69), no such "primary jurisdiction" exists generally with respect to
the OCS.  Instead, agency jurisdiction over the OCS and the waters
above turns on the particular activity at issue (e.g., fishing,
mineral leasing, navigation, pollution control).  See G. Coggins & C.
Wilkinson, Federal Public Land and Resources Law 434 (1980).

   In addition, in enacting ANILCA Congress specifically considered,
and rejected, a proposal to require that activities in the area six
miles seaward of coastal refuges (which would include portions of the
OCS) conform to plans developed to minimize harm to the coastal
refuges.  See H.R. Rep. 95-1045, supra, Pt. 2, at 5-8, 41, 74-76, 81;
S. Rep. 95-1300, supra, at 149-150.  That proposal was rejected
because Congress "was concerned (about) the complexity of
jurisdictions (that would result( ) from such a designation of
(seaward) areas" and concluded that the Secretary could accomplish the
basic objectives of the designation under existing statutory
authorities (S. Rep. 95-1300, supra, at 149-150;  see also 124 Cong.
Rec. 18025 (1978) (remarks of Sen. Stevens) (opposed to provision
because ANILCA "intended to be a land bill.");  S. Rep. 95-1300,
supra, at 359 (Department of Commerce objections)).  Identical
concerns counsel against the addition of another layer of governmental
regulation to OCS activities through Section 810.  The OCSLA
amendments of 1978, 43 U.S.C. 1331 et seq. Coastal Zone Management
Act, 16 U.S.C. 1451 et seq., Marine Protection, Research, and
Sanctuaries Act, 16 U.S.C. 1431 et seq., Marine Mammal Protection Act,
16 U.S.C. 1361 et seq., Fishery Conservation and Management Act, 16
U.S.C. 1801-1802, Endangered Species Act, 16 U.S.C. 1531 et seq., and
National Environmental Policy Act, 42 U.S.C. 4331 et seq., all apply
to activities on the OCS activities.  Indeed, prior to the court of
appeals' ruling that Section 810 applied to Lease Sale 57, the
Secretary considered the potential adverse impacts on subsistence
resources as part of the NEPA planning process (see Sale 57 EIS 47-55,
136-148, 204, 211-213, 223-224, 291-296).  Having squarely rejected
the coastal wildlife refuge "seaward areas" proposal, Congress can
hardly be read as implicitly including in ANILCA an analogous
statutory requirement regarding subsistence resources that suffers
from the same deficiencies.

   Finally, the entire thrust of congressional consideration of
ANILCA, reflected throughout the legislative reports, hearings, and
the legislative debates, supports the view that the OCS falls outside
the scope of ANILCA.  As described above, the purpose of ANILCA was to
complete the three-step statutory process of achieving "a * * *
resolution of the status of (all the) public lands (in Alaska)." H.R.
Rep. 95-1045, supra, Pt. 1, at 189;  S. Rep. 95-1300, 95th Cong., 2d
Sess. 103 (1978);  see 16 U.S.C. 3101(d).  The oft-repeated focus of
this legislative effort was the allocation of the 375 million acres of
lands and inland water areas within Alaska's formal boundaries (see,
e.g., H.R. Rep. 1045, supra, Pt. 1, at 65, 69, 192);  the OCS's
approximately 920 million acres off Alaska /22/ (including 203 million
acres of sedimentary basins), which were not included in that acreage,
were simply not contemplated by anyone to be at issue (see, e.g., 126
Cong. Rec. 18747 (1980) (remarks of Sen. Hart);  125 Cong. Rec. 11450
(1979) (remarks of Rep. Kostmayer);  id. at 11129 (remarks of Rep.
Udall);  H.R. Rep. 96-97, 96th Cong., 1st Sess. Pt. 2, at 97 (1979)
("The State encompasses land and inland water areas of over 375
million acres and tide and offshore submerged lands encompassing some
37 million acres")).  /23/

   3. Respondents nonetheless argue, and the court of appeals held,
that there is ambiguity in whether "public lands" includes the OCS and
that, in light of that ambiguity and the rule of statutory
construction favoring Indian tribal interests, Section 810 should be
liberally construed in favor of the interests of Native Alaskans.  As
in Escondido Mutual Water Co. v. La Jolla Indians, 466 U.S. 765, 781
(1984), "(t)his effort to circumvent the plain meaning of the statute
by creating an ambiguity where none exists is unpersuasive." None of
the purported "ambiguities" suggested by respondents or the court of
appeals casts any serious doubt on the conclusion that the OCS falls
outside the scope of Section 810.

   a. First, respondents argued below, and the court of appeals
concluded (Pet. App. 58a-61a), that ambiguity is created because
Section 4(b) of ANCSA (43 U.S.C. 1603(b), which extinguishes "(a)ll
aboriginal titles, if any, and claims of aboriginal title in Alaska,"
applies to the OCS and there is a "compelling argument that the
provisions of (ANILCA) were intended to have the same territorial
scope" (Pet. App. 59a).  This contention fails, however, because no
such "compelling argument" exists.  Section 810 of ANILCA and Section
4(b) of ANSCA serve entirely different purposes:  Section 4(b)
concerns only Alaska Native interests and extinguishes aboriginal
claims to all federal, state, and private lands;  in contrast, Title
VIII of ANILCA concerns all "rural residents" of Alaska (16 U.S.C.
3101(c)) and applies only to "public lands." Even more fundamentally,
although the two provisions both use the language "in Alaska," only in
Section 4(b) of ANCSA is that language explicitly supplemented by a
reference to "submerged land underneath all water areas both inland
and offshore" (43 U.S.C. 1603(b)).  The absence of similar language in
ANILCA reinforces the conclusion that Congress did not intend that
Title VIII of ANILCA would apply to the OCS.

   The court of appeals (Pet. App. 59a) placed substantial weight on
the fact that the Senate version of ANCSA had included a provision
that protected subsistence hunting and fishing, which was deleted in
conference based on the expectation that "the Secretary and the State
(would) take any action necessary to protect the subsistence needs of
the natives." H.R. Conf. Rep. 92-746, 92d Cong., 1st Sess. 37 (1971).
The legislative history of ANILCA Title VIII, moreover, reveals that
Congress included Title VIII partly because it believed that the
federal and state governments had failed to take such necessary
protective measures.  See S. Rep. 96-413, 96th Cong., 1st Sess.
230-231 (1979);  S. Rep. 95-1300, 95th Cong., 2d Sess. 195-196 (1978);
 H.R. Rep. 95-1045, supra, Pt. 1, at 183-184.  Finally, the court of
appeals noted that Title VIII reflects congressional intent to protect
the opportunities for rural residents to maintain a subsistence way of
life and that "reliance by coastal villagers upon hunting and fishing
in (OCS) waters * * * was well known" (Pet. App. 60a).

   The court of appeals' premises do not, however, support its
conclusion.  To be sure, Title VIII and ANCSA share certain common
roots, but that hardly provides a basis for concluding that the
geographic scopes of Section 4(b) of ANCSA and Section 810 of ANILCA
are co-extensive.  As described above, their respective statutory
purposes and statutory language both plainly suggest otherwise. ANILCA
is not a comprehensive law designed generally to protect subsistence
resources of importance to rural residents of Alaska.  ANILCA is
public lands legislation, of which Title VIII is but one part.  There
is no suggestion that Congress intended that the scope of Title VIII
would somehow be broader than that of ANILCA as a whole.  /24/
ANILCA's definition of "public lands" applies to the entire statute,
including Title VIII.  Of course, Congress is free to enact broader
legislation designed to protect subsistence resources, but neither
respondents' desire that Congress do so nor the consideration that
such additional legislation might arguably be logically symmetrical to
ANCSA's extinguishment of aboriginal rights is a substitute for such
an enactment.  Cf. E.I. du Pont de Nemours & Co. v. Train, 430 U.S.
112, 138 (1978) ("(t)he question * * * is not what a court thinks is
generally appropriate to the regulatory process, it is what Congress
intended").  /25/

   b. Second, respondents relied below (Pet. App. 58a) on several
casual remarks by legislators during the debates to support their view
that Congress used the term "in Alaska" in a "general,"
"(non)technical" sense.  None of these isolated remarks, however, was
specifically addressed to the question whether the OCS is "in Alaska"
and, therefore, none has any direct bearing on that question.
Respondents' reliance on these remarks to suggest ambiguity in the
statutory terms is, accordingly, unpersuasive.

   Indeed, when those remarks are considered in their broader context,
they reflect the theme, reiterated throughout ANILCA's legislative
history and inherently inconsistent with respondents' view, that
ANILCA would not affect activities on the OCS.  Each remark addressed
the issue whether certain provisions of the bill would "lock up" areas
(i.e., exclude mineral development).  For instance, Representative
Udall, a key sponsor of the bill, argued that ANILCA would not prevent
production of oil and gas on the OCS, which instead would be regulated
by comprehensive OCS legislation then recently enacted by Congress:

         Let me tell you what is the result of our bill on Alaska.
      Most of the oil the experts will tell you is not on land in
      Alaska.  Most of it is offshore.  There are 203 million acres of
      sedimentary basins that have been identified offshore in Alaska.

         Let me tell you how much is locked up by this bill.  The
      answer is zero.  Under other legislation produced by my friend,
      the gentleman from New York (Mr. MURPHY) and which we all
      support, we now have in place good (OCS) legislation.  Plans are
      going forward and all the offshore lands in Alaska where the
      majority of the oil is to be found are left open by this bill.

125 Cong. Rec. 11128 (1979);  see also id. at 9900 ("Offshore in
Alaska there are 203 million acres of sedimentary basin.  Let me tell
the Members how much of that is put out of production by this bill so
that they cannot get it.  The answer is zero.").  /26/ Comparable
statements by other legislators reveal a common understanding --
consistent with the plain meaning of the statutory language -- that
ANILCA "has nothing to do with the Outer Continental Shelf" (125 Cong.
Rec. 11170 (1979) (remarks of Rep. Emery);  see 126 Cong. Rec. 21889
(1980) (remarks of Sen. Bayh) ("100 percent of the offshore sites
would remain available to exploration");  id. at 21657 (remarks of
Sen. Cranston) (same);  id. at 18747 (remarks of Sen. Hart) ("most of
Alaska's undiscovered oil and gas lies offshore, and so would not be
affected by these land designations");  125 Cong. Rec. 11450 (1979)
(remarks of Rep. Kostmayer) ("Two hundred and five million acres
offshore are untouched by the * * * bill");  see also 16 Weekly Comp.
Pres. Doc. 2756 (Dec. 2, 1980) (remarks of President Carter on signing
ANILCA into law) ("A hundred percent of the offshore areas * * *
(with) potentially productive oil and mineral areas will be available
for exploration or for drilling")).  /27/

   c. Finally, the court of appeals' "most compelling reason" for
extending Section 810 to the OCS was that "Title VIII was adopted to
benefit the Natives" and that ambiguities in the statute must be
resolved in their favor (Pet. App. 62a).  The court's (and
respondents') reliance on the canon of ambiguities in statutes in
favor of Indians is, however, misplaced.  "The canon of construction *
* * does not permit reliance on ambiguities that do not exist;  nor
does it permit disregard of the clearly expressed intent of Congress."
South Carolina v. Catawba Indian Tribe of South Carolina, No. 84-782
(June 2, 1986), slip op. 8.  As shown above, there is no ambiguity in
this case concerning the scope of ANILCA.  The OCS is neither "in
Alaska" nor subject to a formal claim of "title" by the United States.

   Furthermore, the meaning of "public lands" in Alaska is not, in any
event, an issue peculiar either to Title VIII or to the interests of
Native Alaskans.  ANILCA contains one definition of "public lands"
applicable to the entire statute.  Hence, resolving an "ambiguity"
concerning the meaning of a generally applicable term such as "public
lands" in favor of Native Alaskans in one context would necessarily
affect the scope of the statute as a whole.  In these circumstances,
the rationale of the canon necessarily loses much of its force.  Cf.
FPC v. Tuscarora Indian Nation, 362 U.S. 99, 115-124 (1960).
Certainly, the commonsense notion that Congress does not normally
intend the same term to have different meanings in the same statute
(particularly where, as here, the statute defines the term once for
the entire Act) diminishes, if it does not eliminate altogether, the
canon's force.  The court of appeals ignored this important
consideration in suggesting (Pet. App. 64a-65a n.9) that Title VIII
should simply be read as having a different definition of "public
lands" from that applying to the rest of ANILCA.  /28/ The
unpersuasiveness of this suggestion is compounded by the fact that the
protection for subsistence uses provided by Title VIII is not limited
to uses by Alaskan Natives. /29/

 III. THE POSSIBILITY THAT RESTRICTIONS ON SUBSISTENCE USES MAY ARISE
AT THE PRODUCTION STAGE WOULD NOT, IN ANY EVENT, TRIGGER SECTION 810'S
NOTICE HEARING, AND FINDINGS REQUIREMENTS AT THE LEASING STAGE

   Following Gambell I, Interior prepared a post-sale Section 810
evaluation for Lease Sale 57 (Pet. App. 81a-106a) to determine whether
the leasing of tracts "would significantly restrict subsistence uses"
(16 U.S.C. 3120(a)).  The evaluation concluded that the leasing of
tracts in Sale 57 and associated preliminary activities "will not
significantly restrict subsistence uses" (Pet. App. 85a);
accordingly, the additional notice, hearing, and findings requirements
of Section 810 were not followed.  The evaluation noted as well that
exploratory activities "will not significantly restrict subsistence
uses," but that if the development and production stage is reached,
which is "not likely," development and production activities "may
significantly restrict subsistence uses in certain areas" (id. at 85a,
92a-99a, 103a, 106a).  The evaluation stressed (id. at 85a) that the
agency would perform additional Section 810 evaluations for future
exploration plans and productions plans, the results of which might
trigger the additional procedural requirements of Section
810(a)(1)-(3).

   The court of appeals held that respondents had established a strong
likelihood of success on their claim that Interior had violated
Section 810 by not following the additional procedural requirements of
Section 810(a)(1)-(3).  The court thus ruled, in effect, that a mere
threat of a significant subsistence restriction at the production
stage triggers those requirements at the leasing stage.  That ruling,
too, was erroneous.

   1. In Secretary of the Interior v. California, 464 U.S. 312 (1984),
this Court concluded that under the OCSLA amendments of 1978, the OCS
leasing process consists of four separate, distinct stages:  (1)
planning a five-year nationwide leasing program (43 U.S.C. 1344);  (2)
conducting a lease sale (43 U.S.C. 1337(a));  (3) exploration (43
U.S.C. 1340);  and (4) development and production (43 U.S.C. 1351).
See 464 U.S. at 337.  "Each stage involves separate regulatory review
that may, but need not, conclude in the transfer to lease purchasers
of rights to conduct additional activities on the OCS.  And each stage
includes specific requirements for consultations with Congress,
between federal agencies, or with the States." Ibid.  On this basis,
the Court reasoned that because a lease sale authorizes only limited
activities on the OCS, a lease sale can not be deemed to have a
"direct effect" on the coastal zone based on impacts potentially
arising only at later stages.

   By its plain terms, Section 810 similarly applies to each distinct
stage, separately.  As in Secretary of the Interior v. California,
therefore, a lease sale should not be deemed to restrict significant
subsistence resources based on restrictions potentially occurring (if
at all) only at the development and production stage.  Section 810
applies not only to a decision to "lease" public lands, but also to
any decision to "permit the use" of those lands (16 U.S.C. 3120).  The
statutory language explicitly permits a staged approach wherein
Section 810 is applied at the lease stage and subsequently to each
decision to "permit the use" of the OCS for exploration or production.
 To be sure, in performing a Section 810 evaluation for one stage, the
agency may look to related future stages, but for the purposes of
determining whether the additional procedural requirements of Section
810 are triggered, the only relevant inquiry is whether the particular
disposition of lands at issue -- in this case, leasing -- "would
significantly restrict subsistence uses" (16 U.S.C. 3120).  Having
concluded that the leasing stage would not involve such a restriction,
Interior did not violate Section 810 in declining to follow its
additional procedures.

   The court of appeals' effort to distinguish Secretary of the
Interior v. California is unpersuasive (Pet. App. 13a-14a).  Contrary
to the court of appeals' analysis, this Court's reasoning in that
decision is not limited in its relevance only to the particular
statute there at issue -- the Coastal Zone Management Act (CZMA) (16
U.S.C. 1451 et seq.).  To the contrary, this Court explained that
"(t)he 1978 OCSLA amendments are relevant not because they change any
part of CZMA, but because they change, or at least substantially
clarify, the rights transferred by Interior when a lease is sold" (464
U.S. at 341 n.21).  "Since 1978, the purchase of an OCS lease,
standing alone, entails no right to explore for, develop, or produce
oil and gas resources on the OCS" (id. at 340).  Moreover, the policy
underlying the OCSLA amendments -- to separate the stages in order to
"forestall premature litigation regarding adverse environmental
effects that all agree will flow, if at all, only from the latter
stages of OCS exploration and production" (id. at 341) -- applies with
as much force to ANILCA in this case as it did to the CZMA in
Secretary of the Interior v. California.  See also Village of False
Pass v. Clark, 733 F.2d 605, 608-609, 611, 614 (9th Cir. 1984)
(applying stage-by-stage analysis to agency compliance with Endangered
Species Act and NEPA).  Finally, the court of appeals' assertion (Pet.
App. 14a) that the "specific" terms of ANILCA must control over the
"general" ones of the OCSLA is erroneously premised.  The 1978 OCSLA
amendments specifically define the legal significance of an OCS lease;
 ANILCA does not address the issue at all.

   2. The court of appeals' ruling also disregards the express words
of the statute and would require Interior to engage in uninformed,
speculative judgments of little relevance to the purposes of ANILCA.
Section 810 requires implementation of its notice, hearing, and
findings procedures only if the proposed disposition of public lands
"would" substantially restrict subsistence resources, a term which
suggests at least a likelihood that the event will occur (see INS v.
Stevic, 467 U.S. 407, 422 (1984)).  Interior, however, has found that
exploration will not significantly restrict subsistence resources and
that the development and production stage is unlikely to occur at all
(Pet. App. 85a).  Consequently, even if those later OCS stages are
relevant to the current evaluation of the significance of subsistence
restrictions, the "would" standard has plainly not been met in this
case.  /30/ The important purposes of Section 810 are hardly served by
requiring Interior to expend resources engaging in detailed factual
inquiries concerning events so remote in time and possibility (i.e.,
whether and where recoverable resources might exist, and how lessees
would plan to develop them) that mere speculation is the only result.
Cf. Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S.
766, 776 (1983) ("Time and resources are simply too limited for us to
believe that Congress intended to extend NEPA as far as the Court of
Appeals has taken it.") (citation omitted).

 IV. A CONSTRUCTION THAT SECTION 810 APPLIES TO THE OCS SHOULD NOT IN
ANY EVENT BE APPLIED RETROACTIVELY TO EITHER LEASE SALE 57 OR 83
BECAUSE IT WOULD SERVE NO MEAINGFUL STATUTORY PURPOSE AND WOULD UPSET
SETTLED TRANSACTIONS ENTERED INTO IN GOOD FAITH

   In Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107 (1971) (citations
omitted), this Court set forth a three-factor test for determining
whether a decision should be given solely prospective effect:  (1)
whether "the decision to be applied non-retroactively * * *
establish(es) a new principle of law";  (2) "'whether retrospective
operation will further or retard * * * operation'" ("'of the rule in
question, its purpose and effect'");  and (3) whether "retroactive
application * * * 'could produce substantial inequitable results.'" No
one seriously disputes that the first factor is met in this case.  As
the court of appeals acknowledged (Pet. App. 24a), "Gambell I
established a new principle of law in construing section 810(a) of
(ANILCA) as applicable to the outer continental shelf." Indeed, the
ruling in Gambell I was flatly contrary to the agency position and the
Alaska district court ruling (Pet. App. 69a).

   The remaining two factors similarly support non-retroactive
application in this case.  As previously described (see pages 4-5,
supra), even prior to Gambell I, Interior prepared substantial
preleasing analysis of the impacts on subsistence uses.  The district
court specifically found that the factors specified in Section 810(a)
were considered, albeit not with ANILCA "clearly in mind" (Pet. App.
38a, 42a).  After Gambell I, Interior prepared Section 810 evaluations
for each approved exploration plan in the Sale 83 area, and those
plans have never been challenged (see page 9, supra).  Interior also
announced that, while Gambell I's holding remains unreversed, it would
prepare new subsistence evaluations in all lease sale areas should
development and production ever be proposed (see page 8, supra).  In
these circumstances, requiring Interior to reconsider subsistence
issues as they pertain to the initial decision to lease would serve no
meaningful statutory purpose.

   Finally, "the inequity imposed by retroactive application" (404
-u.s. at 107) strongly weighs against retroactive application.
Balanced against respondents' desire for a re-evaluation of matters
already studied are the strong public interest in avoiding unnecessary
disruptions to OCS exploration and development, as well as the
enormous investments made by the intervenor oil companies pursuant to
the lease sales and the exploration plan approvals.  /31/ This Court
has declined to give retroactive effect to new constructions of
statutes where it would similarly disrupt financial arrangements made
in reliance on a prior construction.  See City of Los Angeles Dep't of
Water & Power v. Manhart, 435 U.S. 702, 719-721 (1978);  Arizona
Governing Committee v. Norris, 463 U.S. 1073 (1983).

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   F. HENRY HABICHT II

      Assistant Attorney General

   LAWRENCE G. WALLACE

      Deputy Solicitor General

   RICHARD J. LAZARUS

      Assistant to the Solicitor General

   ANNE S. ALMY

   JACQUES B. GELIN

   DAVID C. SHILTON

      Attorneys

   RALPH W. TARR

      Solicitor

   L. POE LEGGETTE

      Assistant Solicitor Department of the Interior

   JULY 1986

   /1/ Pet. App. references are to the appendix to the petition in No.
85-1406.

   /2/ "Subsistence uses" mean "the customary and traditional uses by
rural Alaska residents of wild, renewable resources for direct
personal or family consumption as food, shelter, fuel, clothing,
tools, or transportation;  for the making and selling of handicraft
articles out of nonedible byproducts of fish and wildlife resources
taken for personal or family consumption;  for barter, or sharing for
personal or family consumption;  and for customary trade" (16 U.S.C.
3113).

   /3/ The final EIS for Lease Sale 57 is part of the record in this
case, but has not been reproduced in the joint appendix due to its
length.  A copy of the EIS has been lodged with the Clerk.

   /4/ The four stages of the OCS process are:  (1) planning a
five-year nationwide leasing program (43 U.S.C. 1344);  (2) conducting
a lease sale (43 U.S.C. 1337(a));  (3) exploration (43 U.S.C. 1340);
and (4) development and production (43 U.S.C. 1351).

   /5/ To this extent, the findings differed from those of the EIS
discussed on pages 4-5 supra.

   /6/ A copy of the Lease Sale 83 final EIS has been lodged with the
Clerk (see note 3, supra).

   /7/ Inexplicably, the court of appeals stated (Pet. App. 9a) that
"in determining whether to approve Lease Sale 57 or Lease Sale 83, the
Secretary did not evaluate the effect of such leases on subsistence
uses and needs of the Native Alaskans," even though the district court
had found the opposite, relying on a record that clearly showed that
the Secretary had performed detailed subsistence evaluations in the
environmental impact statements prepared for the two sales (id. at
37a, 41a-42a).

   /8/ In an attempt to deny the court of appeals' express rationale,
respondents (Br. in Opp. 26) and the State of California as amicus
curiae (Br. 4) seize upon the court's isolated statement that "(t)he
by-products of oil and gas exploration such as potential oil spills,
leakage, and noise pose the threat of disruption to subsistence
economy sufficient to destroy irreparably the isolated and unique
culture of the Native Alaskans" (Pet. App. 21a (citing R. Little & L.
Robbins, Technical Report No. 89, Effects of Renewable Resource
Harvest Disruptions on Socioeconomic and Sociocultural Systems:  St.
Lawrence Island 330-374 (1984))).  The court of appeals, however,
clearly did not base its ruling on any such unsupported factual
finding.  The Department of the Interior in this case made explicit
findings, never challenged by respondents, that exploration would not
significantly restrict subsistence resources in the two lease sale
areas.  Indeed, as the court of appeals recognized (Pet. App. 15a),
the district court found that the injury Section 810 was intended to
prevent -- significant restrictions on subsistence uses -- was highly
unlikely to result from exploration stage activities (Pet. App. 43a).
The court of appeals did not overturn this finding as clearly
erroneous (the record certainly would not have supported such action),
but instead ruled that lack of harm did not qualify as an "unusual
circumstance" excusing the mandatory issuance of an injunction (id. at
15a).

   /9/ While this may have been true of the district court in the
present case, the court of appeals appears to have fully addressed the
merits (see note 14, infra).

   /10/ Taken together, these considerations constitute the familiar
four-part test that traditionally has governed the issuance of
preliminary injunctions, stays, and other forms of temporary equitable
relief in the federal courts.  See, e.g., Virginia Petroleum Jobbers
Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958).  In Virginia
Petroleum Jobbers, 259 F.2d at 925, the court articulated the test as
follows:  (1) Whether the moving party has made a strong showing that
it is likely to prevail on the merits;  (2) whether the moving party
has shown that without such relief, it will be irreparably injured;
(3) whether the issuance of a stay would substantially harm other
parties;  and (4) whether injunctive relief would be in the public
interest.

   /11/ Although the court below stated that "(a)n injunction is the
appropriate remedy for a substantive procedural violation of an
environmental statute" (citing Thomas v. Peterson, 753 F.2d 754, 764
(9th Cir. 1985)), the court's opinion in Thomas actually referred to
"a substantial procedural violation" ibid.).  Whether the discrepancy
was deliberate or unintended does not affect our submission that the
court of appeals' analysis is inconsistent with Romero-Barcelo.

   /12/ As noted (see page 12, supra), the Ninth Circuit's rule admits
of only two exceptions.  Injunctive relief may be denied if such
relief would itself cause irreparable harm to the environment or if
such relief would interfere with certain types of long-term contracts
(Pet. App. 16a, 19a).  The contractual-interference exception is
evidently quite narrow, because the court of appeals did not apply it
in this case despite the fact that injunctive relief against
exploratory operations interferes with the intervenor oil companies'
right to explore pursuant to their contracts with the government and
their approved exploration plans.

   /13/ While the Senate Report states that "until the requirements of
* * * section (810) have been satisfied the proposed action may not
proceed" (S. Rep. 96-413, supra, at 234), the statement is part of a
single sentence that goes on to explain that a "proposed action may
proceed even though its effect may be adverse to subsistence uses"
(ibid.).

   /14/ The court of appeals' attempt (Pet. App. 23a n.2) to
distinguish Romero-Barcelo on the ground that it involved a permanent
rather than a preliminary injunction is wholly unpersuasive.  A
district court should have greater, not less discretion in considering
whether preliminary relief is appropriate.  In all events, the
distinction is unavailing here because the court of appeals addressed
the merits of this case as if it were considering a permanent
injunction;  the court made definitive rulings (Pet. App. 9a-14a,
22a-26a) which it has subsequently treated as binding precedent.  See
Tribal Village of Akutan v. Hodel, 792 F.2d 1376 (9th Cir. 1986)
(reprinted in U.S. Reply Memo App.).

   /15/ The asserted violations in this case were, moreover, plainly
insubstantial.  In the Sale 83 case, for example, the district court
found that the Secretary had "considered the relevant factors"
required by Section 810 and had not erred in finding that the lease
sale and subsequent stages of the OCS process, including development
and production, would have "negligible" or "non-existent" impacts on
subsistence uses (Pet. App. 41a-42a).  Nevertheless, the district
court and the court of appeals found a violation of Section 810 solely
because the Secretary made his subsistence findings pursuant to NEPA,
rather than Section 810, and thus did not have the policy precepts of
Section 810 "clearly in mind" (Pet. App. 8a, 38a).

   /16/ The court of appeals' even broader presumption that Congress
intended to elevate all environmental concerns over other competing
national concerns is similarly flawed.  This Court has rejected the
notion that Congress intended generally to elevate environmental
interests above other interests affected by a requested injunction.
Romero-Barcelo, 456 U.S. at 316-319;  see also Aberdeen & Rockfish
R.R. v. SCRAP, 409 U.S. 1207, 1217-1218 (1972) (Burger, C.J., Circuit
Justice) (recent environmental legislation, "however praiseworthy,
should not lead courts to exercise equitable powers loosely or
casually whenever a claim of 'environmental damage' is asserted.  * *
* The decisional process for judges is one of balancing and it is
often a most difficult task.");  cf. Strycker's Bay Neighborhood
Council, Inc. v. Karlen, 444 U.S. 223, 228 n.2 (1980) (NEPA does not
require agency "to elevate environmental concerns over other,
admittedly legitimate, considerations").  The Court in Kleppe v.
Sierra Club, 427 U.S. 390, 407 (1976), for instance, stated that an
injunction against coal mining ordered by the court of appeals in that
case would have been erroneous even if that court's finding of a NEPA
violation were correct because "in simple equitable terms there were
no grounds for the injunction * * * " (427 U.S. at 407-408).  In
Kleppe, the district court had found that an injunction would have
caused irreparable harm to the comapnies who sought to carry out their
business ventures, and to the public who depended upon their
operations, and the court of appeals had neither challenged that
finding nor identified any imminent harm to the interests protected by
NEPA (ibid.).

   /17/ Moreover, in traditional usage "public lands" refers only to
onshore holdings of the federal government and does not include the
OCS.  See, e.g., Mann v. Tacoma Land Co., 153 U.S. 273, 284 (1894)
(tidelands are not "public lands");  Public Land Law Review
Commission, One Third of the Nation's Land 30 (1970) ("the mineral
resources in the Outer Continental Shelf" do "not constitut(e) public
land interests in the usual legal or lay definitions of public
lands");  S. Rep. 1444, 88th Cong., 2d Sess. 10 (1964) (letter from
Acting Secretary of the Interior, John A. Carver, Jr.) ("lands of the
(OCS) are not public lands");  H.R. Rep. 1008, 88th Cong., 1st Sess.
14 (1963) (same);  see also U.S. Dep't of Interior, Public Land
Statistics 113 (1985) (excluding "lands located on the (OCS)" from
definition of "public lands").  Hence, when Congress intends to
include the OCS within the term "public lands" in a particular
statutory context, Congress typically makes that intent explicit.
See, e.g., 43 U.S.C. 155 (defining "public lands" for purposes of
withdrawal, reservation, or restriction for defense purposes as
including the OCS);  Pub. L. No. 88-606, Section 10, 78 Stat. 985
(defining "public lands" for purposes of public land law review
commission study as including OCS mineral resources interests);  see
also H.R. Rep. 1008, supra, at 10.

   /18/ The phrase "sovereign rights," like the phrase "jurisdiction
and control" in the Truman Proclamation (see note 19, infra), is
intended to distinguish the limited rights in the continental shelf
from sovereign territorial claims.  M. McDougal & W. Burke, The Public
Order of the Oceans:  A Contemporary International Law of the Sea
696-699 (1962).

   /19/ The origins of this characterization of the federal interest
in the OCS no doubt lie with the Truman Proclamation of Sept. 28,
1945, in which President Truman declared that the "natural resources
of the subsoil and sea bed of the continental shelf beneath the high
seas but contiguous to the coasts of the United States * * *
appertain( ) * * * to the United States, subject to its jurisdiction
and control." Pres. Proclamation No. 2667, 3 C.F.R. 67 (1943-1948
comp.).  In considering submerged lands legislation, Congress
specifically noted that in its subsequent decision in United States v.
California, 332 U.S. 19, 38-39 (1947), this Court, too, appeared to
avoid the use of traditional ownership terminology in describing the
federal government's interest in the continental shelf.  See ibid.; S.
Rep. 1592, 80th Cong., 2d Sess. 8 (1948), appended to S. Rep. 133, 83d
Cong., 1st Sess. Pt. 1, at 57 (1953);  see also Outer Continental
Shelf:  Hearings on S. 1901 Before the Senate Comm. on Interior and
Insular Affairs, 83d Cong., 1st Sess. 573 (1953) (testimony of Jack B.
Tate, Deputy Legal Advisor, Department of State).

   /20/ The sole reference to the OCS in ANILCA is contained in
Section 1001 (16 U.S.C. 3141) which requires that the Secretary
undertake a systematic interdisciplinary study of the North Slope of
Alaska, including assessment of potential oil and gas development and
wildlife resources.  Section 1001(a) (16 U.S.C. 3141(a)), in
particular, provides that:

         The Secretary shall initiate and carry out a study of all
      Federal lands (other than submerged lands on the Outer
      Continental Shelf) in Alaska north of 68 degrees north latitude
      and east of the western boundary of the National Petroleum
      Reserve -- Alaska, other than lands included in the National
      Petroleum Reserve -- Alaska and in conservation system units
      established by this Act.

The parenthetical reference to the OCS does not, in our view, suggest
that Congress believed that "Federal lands * * * in Alaska" would
otherwise have included the OCS.  The parenthetical may well have been
inserted merely in an abundance of caution to ensure that references
to the "North Slope," which in a related statute -- the Alaska Natural
Gas Transportation Act of 1976, 15 U.S.C. 719 et seq. -- Congress had
defined to include the Continental Shelf (see 15$ U.S.C. 719b), would
not be read so broadly in ANILCA.  Notably, the Alaska Natural Gas
Transportation Act was under consideration by some of the same
congressional committees and enacted at approximately the same time
that the early ANILCA legislation was being proposed and drafted.  See
S. Rep. 95-1300, 95th Cong., 2d Sess. Pt. 2, at 31-35 (1978);  S. Rep.
94-1020, 95th Cong., 2d Sess. 12-13 (1976).  (Note that the Senate
Committee on Energy and Natural Resources is the relevant successor to
the jurisdiction of the prior Committee on Interior and Insular
Affairs.) That Section 1001 does not imply that the OCS is "public" or
"federal" lands for the purposes of ANILCA is confirmed, moreover, by
reference to Section 1008 (16 U.S.C. 3148).  Section 1008(a) requires
the Secretary to "establish, pursuant to the Mineral (Lands) Leasing
Act of 1920, as amended (30 U.S.C. 181 et seq.), an oil and gas
leasing program on the Federal lands of Alaska not subject to the
study required by (Section 1001)" (16 U.S.C. 3148(a).  Because the
Mineral Lands Leasing Act does not apply to the OCS (see note 21,
infra), Congress plainly did not assume that the term "Federal lands *
* * in Alaska" would, absent a parenthetical exclusion, include the
OCS.

   /21/ Notably, ANCSA requires that the Secretary survey and place
monuments around any area selected by the Native Alaskans (see 43
U.S.C. 1612) -- a requirement irreconcilable with the proposition that
the Natives might select a portion of the OCS.  Cf. Mann v. Tacoma
Land Co., 153 U.S. 273, 284-285 (1894).  In addition, ANCSA provided
the Secretary with 90 days to withdraw unreserved "public lands in
Alaska" (43 U.S.C. 1616(d)(1)) in order to guard against "a land rush,
in massive filings under the Mineral (Lands) Leasing Act (30 U.S.C.
181 et seq.)" (H.R. Conf. Rep. 92-746, 92d Cong., 1st Sess. 45 (1971))
-- a policy concern irrelevant to the OCS because the Mineral Lands
Leasing Act is inapplicable (see 43 U.S.C. 1333(a)(1);  Justheim v.
McKay, 229 F.2d (D.C. Cir.), cert. denied, 351 U.S. 933 (1956).

   /22/ This estimate has been provided to us by the Department of the
Interior.

   /23/ See also Alaska National Interest Lands -- Part 1:  Hearings
Before the Subcom. on Fisheries and Wildlife Conservation and the
Environment of the House Comm. on Merchant Marine and Fisheries, 96th
Cong., 1st Sess. 119-120, 329 (1979);  Alaska Lands -- Part 2:
Hearings Before the Subcomm. on Fisheries and Wildlife Conservation
and the Environment of the House Comm. on Merchant Marine and
Fisheries, 95th Cong., 2d Sess. 449 (1978);  Inclusion of Alaska Lands
in National Park, Forest, Wildlife Refuge, and Wild and Scenic Rivers
Systems:  Hearings Before the Subcomm. on General Oversight and Alaska
Lands, House Comm. on Interior and Insular Affairs, 95th Cong., 1st
Sess. 18-19, 30 (1977).

   /24/ Notably, even the subsistence provision deleted from ANCSA
applied (as the court of appeals acknowledged (Pet. App. 59a)) only to
"public lands," which in ANCSA, as in ANILCA, does not encompass the
OCS (see page 33, supra).

   /25/ The court of appeals (Pet. App. 60a-61a) cited this Court's
decisions in Hynes v. Grimes Packing Co., 337 U.S. 86, 110-116 (1949),
and Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918), as
supporting a more expansive interpretation of Title VIII's
geographical scope.  Neither case supports respondents' cause.  In
Hynes, the Court considered a statute that authorized the Secretary of
the Interior to designate as an Indian reservation in Alaska "any * *
* public lands which are actually occupied by Indians or Eskimos
within said Territory." Act of May 1, 1936, ch. 254, Section 2, 49
Stat. 1250.  The Secretary relied upon this grant of authority to
extend the boundaries of an Indian reservation 3,000 feet from the
shore line at mean low tide (337 U.S. at 90 n.1).  The fishery thereby
included in the reservation was "within (the) Territory" (which
extended three miles offshore) and lay over land owned by the United
States.  Similarly, in Alaska Fisheries, at issue was whether a
commercial fish trap constructed within 600 feet of the high tide line
of an island was within "the body of lands known as Annette Islands,"
as described in a reservation created by an Act of Congress (248 U.S.
at 87).  This Court concluded that Congress, by referring to a group
of islands "as a single body of lands," had intended the reservation
to embrace "the intervening and surrounding waters as well as the
upland" (id. at 89).  The waters and submerged lands in that case
were, however, "in the interior of the Alexander Archipelago" (id. at
88), "were the property of the United States(,) and (were) within a
district where the entire dominion and sovereignty rested in the
United States" (id. at 87).  Unlike the lands and waters involved in
these two cases, the OCS lies beyond the nation's three-mile
territorial sea, and the United States does not claim title to it.
These cases thus do not support construing "in Alaska" in ANILCA to
include the OCS, parts of which extend more than 350 miles from the
Alaskan coast.

   /26/ The other statement principally relied on by respondents and
the court of appeals (Pet. App. 58a), made by Representative Young of
Alaska, who was a major opponent of the legislation, reflects a
similar understanding of ANILCA's scope.  Representative Young argued
that supporting ANILCA was tantamount to "support(ing) offshore
drilling in Alaska first over onshore drilling * * * doing a great
disservice to the environment" (125 Cong. Rec. 9907 (1979)).

   /27/ The court of appeals discounted the significance of these
expressions of legislative intent on the ground that they "are not
inconsistent with the position that Title VIII includes the (OCS)
since nothing in Title VIII precludes oil and gas development in the
areas to which it applies" (Pet. App. 63a).  The common thrust of the
statements is not, however, merely that OCS activities would not be
"preclude(d)";  they reflect quite unambiguously the view that those
activities have "nothing to do with (ANILCA)," "would not be
affected," and would be "untouched by the" statute.

   /28/ Notably, even the Alaska Federation of Natives' (AFN) proposed
text for what eventually became Section 810 would not have included
the OCS.  AFN's version would have applied to "public lands in * * *
Subsistence Management Zones" (see Inclusion of Alaska Lands in
National Park, Forest, Wildlife Refuge, and Wild and Scenic Rivers
Systems:  Hearings Before the Subcomm. on General Oversight and Alaska
Lands of the House Comm. on Interior and Insular Affairs, 95th Cong.,
1st Sess. Pt. XII, at 497 (1977));  a subsistence zone was to be
"within the exterior boundaries of each of the twelve regional
corporations established by ANCSA" (id. at 492), which by definition
would not have included the OCS (see 43 U.S.C. 1606(a)).

   /29/ There is, for this reason as well, considerable doubt whether
the canon of statutory construction favoring Indian tribes is relevant
at all to this case.  Title VIII of ANILCA was enacted for the benefit
of "rural Alaska residents" (see 16 U.S.C. 3113).  While rural Native
Alaskans are certainly among the beneficiaries of the Title, the
statute is in both form and substance racially neutral (see, e.g.,
H.R. Rep. 95-1045, supra, Pt. 1, at 78 (purpose to protect both Native
and non-Native people)).  But see 126 Cong. Rec. 29279 (1980) (remarks
of Rep. Udall).  In addition, there is some question whether a trust
relationship (upon which the canon is bottomed;  see, e.g., Montana v.
Blackfeet Tribe, No. 83-2161 (June 3, 1985), slip op. 6) exists
between the United States and the Alaska Natives, at least subsequent
to ANCSA.  See 43 U.S.C. 1601(b) ("the settlement should be
accomplished * * * without creating a reservation system or lengthy
wardship or trusteeship * * * ");  see also S. Rep. 92-405, 92d Cong.,
1st Sess. 108 (1971).  Cf. Couth Carolina v. Catawba Indian Tribe,
supra.  The Court need not, however, reach this issue in this case.

   /30/ The court of appeals characterized the threshold standard as
whether the proposed action "may" significantly restrict subsistence
uses (Pet. App. 13a) and, relying on Interior's conclusion that
development and production "may significantly restrict subsistence
uses in certain areas" (id. at 85a), held that Interior erred in not
complying with Section 810's notice, hearing, and findings
requirements.  "Would" is not the equivalent of "may," however, and,
in all events, the court ignored Interior's express caveat that
"development and production activities are not likely to occur" (Pet.
App. 85a).  We note, moreover, that the court of appeals in a more
recent ruling compounded its error in this case by upholding the grant
of a preliminary injunction against a lease sale where Interior had
found that significant subsistence restrictions were unlikely to occur
at any stage of OCS development.  See Tribal Village of Akutan v.
Hodel, 792 F.2d 1376 (9th Cir. 1986) (reprinted in U.S. Reply Memo
App.).

   /31/ While it would be unjust to apply this new construction of
ANILCA to either Lease Sale 57 or Lease Sale 83, the inequity would be
particularly pronounced with regard to Lease Sale 83, which occurred
without litigation challenge and after the district court in the Lease
Sale 57 case had ruled that Section 810 did not apply.  The mere
pendency of an appeal from that ruling, moreover, did not render
reliance on the lower court's ruling unreasonable.  Cf. Huron Holding
Corp. v. Lincoln Mine Operating Co., 312 U.S. 183, 189 (1941) ("appeal
* * * does not -- until and unless reversed -- detract from * * *
decisiveness and finality" of lower court ruling);  Deposit Bank v.
Frankfort, 191 U.S. 499, 510-512 (1903).  The district court had
upheld the construction of the statute advanced by the agency
primarily responsible for its implementation.  Certainly Interior was
not obliged to alter its Section 810 program with respect to Lease
Sale 83 based on the possibility that the court of appeals might
reverse the district court in the Lease Sale 57 lawsuit.