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

   No. 85-1406

   In the Supreme Court for the United States

   October Term, 1985

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

   Reply Memorandum for the United States

   In our petition, we demonstrated that the court of appeals' rule
requiring, save in rare cases, the issuance of an injunction upon the
showing of a likely violation of an environmental statute, is contrary
to Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), as well as
decisions from other circuits.  We also showed that the court's
extension of Section 810 of the Alaska National Interest Lands
Conservation Act (ANILCA), 16 U.S.C. 3120, to the waters above the
outer continental shelf (OCS) contravened congressional intent and
threatened seriously to disrupt leasing and development of the OCS
offshore Alaska.  We also explained that, even if Section 810 applies
to the OCS, the court's refusal to allow leasing and exploration to
proceed until the Secretary complied with Section 810's procedural
requirements for all stages of the OCS program, including development
and production, conflicts with Secretary of the Interior v.
California, 464 U.S. 312 (1984).  Finally, we showed that the court
erroneously applied its construction of Section 810 retroactively,
enjoining a lease sale that occurred, without litigation challenge,
six months before the court first announced its reading of Section
810.

   As we shall now explain, respondents have not offered any
persuasive reason why these issues do not warrant this Court's review.

   1. Respondents argue (Br. in Opp. 18-22) that the Secretary cannot
contest the validity of an injunction that the lower court issued "at
the Secretary's * * * behest," and that, in all events, the court of
appeals' decision to issue an injunction was based on traditional
criteria and not a per se injunction rule.  Respondents
mischaracterize both the Secretary's position and the court of
appeals' ruling.

   First, the Secretary never "requested" an injunction.  Exploratory
drilling in the Sale 57 area began in the summer of 1984, before
Gambell I was decided (Pet. 4-5).  Respondents never challenged the
Secretary's approval of the exploration plans (pursuant to 43 U.S.C.
1349(c)), nor did they ask the court of appels to enjoin that drilling
pending appeal.  The issues before the court in Gambell I related only
to the lease sale itself.  It was in that context that the Secretary
contended that, even if a violation of Section 810 had occurred,
"there is no need to undo what has already been done() (t)he proper
role for the court is simply to maintain the status quo while the
Secretary does whatever is necessary to comply'" (Pet. App. 3a).
Accordingly, the Secretary was not "requesting" an injunction, but
merely arguing against rescission of the sale.  The "status quo" at
the time, moreover, included exploratory drilling and, consequently,
maintaining the status quo would not have called for enjoining such
drilling.  And, of course, even if an injunction had been "requested"
in Gambell I, any such request would have no bearing on Lease Sale 83,
which was not challenged until after Gambell I.  The scope of the
court of appeals' injunction, however, is not limited to Sale 57.

   Second, the court of appeals' decision in Gambell II, directing the
district court to enjoin all activities in connection with both Sale
57 and Sale 83, does not, in any event, purport to rest on any
"request" by the Secretary, /1/ but relies instead on application of
the court's own criteria for evaluating a claim for injunctive relief.
 Respondents' effort to rewrite the court of appeals' analysis -- to
suggest that the lower court simply applied traditional equitable
criteria -- is unavailing.  Contrary to respondents' contentions, the
court's ruling neither flowed from the failure of petitioners "to show
any irreparable harm" (Br. in Opp. 22) nor considered the likelihood
of a statutory violation as a mere factor to be taken into account "in
determining whether injunctive relief is appropriate in a given case"
(id. at 21).

   As the district court found (Pet. App. 43a), the Secretary made
ample showing that injunctive relief would cause "irreparable harm" to
a national program of great importance to Congress:  "this nation's
quest for new oil resources and energy independence" (ibid.).
Respondents' contention (Br. in Opp. 21) that the Secretary "stood
silent" and "never claimed he would suffer any harm" misstates the
record.  The Secretary identified two types of irreparable harm that
an injunction would cause:  (1) irreparable harm to efforts under the
Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. (& Supp. II) 1331
et seq., to assess expeditiously the extent of oil and gas resources
offshore Alaska;  and (2) irreparable harm to efforts to gather
geological information necessary for planning the next lease sale in
Norton Sound.  See Fed. Defs. Opp. to Plaintiffs' Mot. for Preliminary
Injunction 25-28;  Fed. Appellees Br. 44-47, Gambell II.

   The court of appeals' refusal to give weight to these legitimate
and weighty concerns stemmed from its application of a test for
injunctive relief which is contrary to this Court's decision in
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982).  In the court of
appeals' view, a likely violation of an environmental statute is not
merely another factor that "must be considered" (Br. in Opp. 21), but
rather creates a presumption that an injunction must issue (see Pet.
10;  Pet. App. 15a).  Hence, the court of appeals faulted the district
court for denying injunctive relief because, having found that there
was a strong likelihood that the Secretary had violated Section 810,
the district court had a "duty to issue an injunction" (Pet. App.
15a).  The court of appeals stressed that only in "unusual
circumstances" could this duty be "excuse(d)," citing as examples
"irreparable harm to the environment" or "interfer(ence) with a
long-term contractual relationship" (id. at 15a, 16a, 17a (emphasis in
original)).  Thus, contrary to respondents' characterization (Br. in
Opp. 21), the court of appeals' opinion belies any suggestion that the
court engaged in a balancing of the equities, as required by
traditional standards for injunctive relief.  Rather, "the law in th(e
Ninth C)ircuit" permits a weighing of the equities in the face of a
statutory violation only when certain "unusual" or "rare"
circumstances are present (Pet. App. 15a).  /2/

   Indeed, a more recent Ninth Circuit decision eliminates any
possible remaining doubt concerning the operation of the court's per
se injunction rule.  In Tribal Village of Akutan v. Hodel, No. 86-3512
(Apr. 28, 1986)(reprinted in App., infra, 1a-7a), involving Lease Sale
92 offshore Alaska, the court of appeals affirmed the district court's
conclusion that "an injunction was required as a matter of course
under Gambell II" once complaining parties "had established a strong
likelihood of success on their ANILCA claim" (App., infra, 3a).  The
court of appeals made entirely clear that the Secretary's unchallenged
findings in that case that subsistence restrictions were "unlikely"
was of no relevance to the question whether an injunction should issue
(id. at 3a, 7a):  "Absent unusual circumstances, irreparable damage is
presumed and an injunction is required when an agency violates ANILCA
section 810(a)" (id. at 4a (citing Gambell II)).

   2. Respondents make no attempt to refute our showing (Pet. 22-25)
that the "public lands" subject to Section 810 do not include the OCS.
 /3/ Respondents argue (Br. in Opp. 12-15) instead that certiorari
should be denied because the case in unimportant.  That
characterization is not easily reconciled with respondents' own
repeated emphasis of the crucial importance of the natural resource at
stake (id. at 2, 3, 4, 5) and, more importantly, their specific
admission that the effect of the court of appeals' ruling will be to
delete certain tracts from leasing and generally delay OCS leasing in
Alaska (id. at 13).  As we outlined in our petition (at 20-21), the
adverse rulings put at risk the 621 leases issued offshore Alaska
since the enactment of ANILCA, threatening the loss of more than $4.2
billion in bonuses received for those leases.  Indeed, respondents
even suggest that lessees might argue for recovery of their bid money
(Br. in Opp. 13).  Respondents may believe that such adverse effects
on OCS leasing and exploration are a sound idea (id. at 14), but
Congress has seen fit to declare that assessment of the extent of
energy resources located on the OCS is to be achieved "at the earliest
practical time" with "expeditious" development.  See 43 U.S.C.
1802(9), 1332(3).

   Respondents err in charging (Br. in Opp. 9, 10) that the Secretary
has "ignore(d)" or "refus(ed) to consider" subsistence in planning
lease sales.  The Secretary extensively analyzed subsistence
restrictions in the final environmental impact statement prepared for
Sale 57, the thoroughness of which is evident in respondents' repeated
references to the document in their own discussion of subsistence
effects (id. at 4-5 nn.10, 11, 13, 14, 15).  The final EIS for Lease
Sale 83 similarly contains an extensive discussion of subsistence,
even though no Native subsistence harvesting occurs in the Navarin
Basin (see Pet. 7).  The district court specifically found that "the
Secretary considered the relevant factors" under Section 810 (Pet.
App. 42a;  see also id. at 37a), albeit not with the mandate of the
statute "clearly in mind" (id. at 38a).  And since Gambell I, the
Secretary has been conducting subsistence analyses under the express
terms of Section 810, including Section 810 analyses for each new
exploration plan (see, e.g., Pet. App. 107a), and a Section 810
subsistence reevaluation for Sale 57 (Pet. App. 81a-106a).

   Notwithstanding the Secretary's extensive efforts to comply with
Section 810 on the OCS, the courts have now blocked activity in three
lease sale areas offshore Alaska, including Sale 57 and Sale 83 in
Gambell II and Sale 92 in Akutan, based on extremely expansive
readings of that provision.  Having successfully urged upon the court
below the expansive and strict reading of Section 810 upon which these
rulings lie, respondents are hardly in a position to claim now that
the Secretary "should encounter few problems in complying with" that
provision (Br. in Opp. 14).

   3. Respondents mischaracterize (Br. in Opp. 22-23) our contention
that the decision below is inconsistent with this Court's decision in
Secretary of the Interior v. California, 464 U.S. 312 (1984).  The
issue we present is not, as respondents put it (Br. in Opp. 23),
"whether any compliance effort is required at the leasing stage." The
Secretary expressly recognizes that, if ANILCA applies to the OCS, a
Section 810 evaluation is necessary at the leasing stage to determine
whether significant restrictions on subsistence will then occur.  For
this reason, after Gambell I issued, the Secretary prepared a leasing
stage subsistence re-analysis for Sale 57 (Pet. App. 81a).  The court
of appeals rejected the Secretary's analysis, however, because it
disclosed possible subsistence restrictions at the production and
development stage, but did not carry out the second tier hearing and
findings procedures of Subsections (a) (1)-(3) (Pet. App. 13a-14a).
Our petition quite plainly challenges the court's holding that Section
810 requires a hearing and findings at the leasing stage even when the
Secretary has found that any possible effects will be confined to the
production and development stage.  /4/ By focusing on a non-issue,
respondents fail to rebut our showing of a conflict with this Court's
holdings in Secretary of the Interior v. California, supra, that
"(e)ach stage (of the OCS process) involves separate regulatory review
* * *," and that Congress instituted staged consideration "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" (464 U.S. at 337, 341 (footnote
omitted)).  /5/

   4. The majority in Gambell II acknowledged that Gambell I had
"established a new principle of law," but concluded that "retroactive
application of Gambell I would further the operation of the statute *
* *," and would not lead to "substantial inequitable results" (Pet.
App. 24a).  In our petition (at 27-28) we showed why retroactive
application of Gambell I to a lease sale area where no Native
subsistence occurs, and where Interior had already studied the
subsistence issues, served no possible purpose (see also Pet. App.
31a-32a (Dimmick, J., dissenting)).  Respondents make no attempt to
rebut this point, but instead argue (Br. in Opp. 24-25) that the
majority erred in characterizing its result as retroactive.
Respondents do not deny that Gambell I was a novel interpretation of
Section 810.  Instead, they contend that there is nothing retroactive
about applying the rule of Gambell I to a lease sale which took place
after the complaint in Gambell I was filed, but before the novel
construction of Section 810 was announced.

   Respondents have apparently mistaken the inquiry whether a rule
should be applied retroactively for the threshold issue whether a
particular construction is, in fact, retroactive.  With regard to the
threshold question, there can be no serious doubt that applying
Gambell II to Lease Sale 83 amounts to a retroactive application, as
the court of appeals itself recognized.  With respect to the distinct
issue respondents appear to be addressing, surely the Secretary and
the companies were justified in proceeding with Lease Sale 83 when no
one had challenged that sale (which took place in an area not used for
Native subsistence), and when the district court in the Sale 57 case
had recently upheld the Secretary's interpretation that Section 810
did not apply to the OCS (see Pet. App. 32a (Dimmick, J.,
dissenting)).

   5. Finally, respondents argue (Br. in Opp. 15-17) that the petition
is untimely.  In particular, respondents argue that the Secretary was
required to re-argue the non-applicability of Section 810 to the OCS
on remand following Gambell I in order to preserve the issue for this
Court's review (Br. in Opp. 16-17).  This contention is totally
unsupported by the Court's precedent and would invite both premature
filings in this Court and wasteful arguments in the lower courts.  As
we have previously noted (Pet. 22 n.11;  85-1608 Br. in Opp. 10 n.5),
the decision in Gambell I expressly remanded questions regarding the
scope of the Secretary's ANILCA responsibilities to the district
court.  Hence, unlike the court's ruling on aboriginal title, the
ANILCA ruling was clearly interlocutory in nature and review by this
Court is still timely.  See, e.g., Falk v. Brennan, 414 U.S. 190, 194
n.7 (1973);  Hamilton Brown Shoe Co. v. Wolf Brothers & Co., 240 U.S.
251, 258 (1916);  see generally R. Stern, E. Gressman, & S. Shapiro,
Supreme Court Practice 316 (6th ed. 1986).  /6/

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be granted, together with the petition in No.
85-1239, and the two cases consolidated for purposes of oral argument.

   CAROLYN B. KUHL

      Acting Solicitor General /7/

   RALPH W. TARR

      Solicitor Department of the Interior

   MAY 1986

   /1/ The court of appeals refers to the Secretary's brief only in
its recitation of the facts (Pet. App. 3a).  The court nowhere
mentions the brief in its analysis of the legal question whether
injunctive relief is appropriate (see id. at 6a-21a).

   /2/ In a belated effort to deny the court of appeals' express
rationale, respondents (Br. in Opp. 20) and the State of California as
amicus curiae (Br. 4) seize upon the court's isolated statement (Pet.
App. 21a) 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." The court of appeals,
however, clearly did not base its ruling on any such unsupported
factual finding.  As we pointed out in our petition (Pet. 16), the
Secretary made explicit findings, never challenged by respondents,
that exploration would not significantly restrict subsistence
resources in the two sale areas.  Indeed, as the court of appeals
recognized (Pet. App. 15a), the district court's decision not to issue
an injunction was based, in part, on its finding "(t)hat exploration
will not significantly restrict subsistence resources" (ibid.).  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 the lack of harm did not qualify as an "unusual
circumstance" excusing the mandatory issuance of an injunction
(ibid.).  California also errs in contending (Am. Br. 7) that the
court of appeals' ruling could alternatively be justified under the
District of Columbia Circuit's "'opportunity to choose'" rule for
injunctions.  Applying that rule (Pet. App. 43a (citation omitted)),
the district court properly denied respondents injunctive relief, and
the court of appeals flatly rejected that rule in favor of its own
standard (Pet. App. 17a).

   /3/ Nor are respondents correct in claiming (Br. in Opp. 9-10) that
the United States has taken inconsistent positions on this point in
Gambell and Inupiat.  The United States did not rely in Inupiat on the
argument that the phrase in Alaska "clear(ly) and unambiguous(ly)"
mandated application of ANCSA to the OCS.  Instead, we relied, inter
alia, on the language of Section 4(b) of Alaska Native Claims
Settlement Act (ANCSA), 43 U.S.C. 1603(b), which expressly
extinguished claims to "submerged land underneath all water areas,
both inland and offshore." See Fed. Def. Reply Mem. in Support of
Motion for Judgment on the Pleadings 22-23;  see also Br. in Opp. at
34 & n.22, Inupiat Community v. United States, 746 F.2d 570 (9th Cir.
1984), cert. denied, No. 84-1801 (Oct. 7, 1985).

   /4/ The problems posed by this holding are now even more acute due
to the Ninth Circuit's ruling in Akutan that the procedures of
Subsection (a)(1)-(3) must be carried out at the leasing stage even
when the Secretary has specifically found that significant
restrictions on subsistence uses are "'unlikely'" at the production
and development stage (App., infra, 7a).

   /5/ Cases respondents cite (Br. in Opp. 23) support our contention
that compliance with environmental laws should be judged in light of
the multi-stage structure of the OCSLA.  See Village of False Pass v.
Clark, 733 F.2d 605, 608-609, 610-612, 614-616 (9th Cir.
1984)(upholding Secretary's reliance on future opportunities to comply
with NEPA and Endangered Species Act at later OCS stages);  North
Slope Borough v. Andrus, 642 F.2d 589, 595 (D.C. Cir. 1980)("a purpose
of OCSLA is to permit an expedient resolution of preliminary matters
in the development of oil lands while preserving administrative and
judicial review for future times when potential threats to the
environment are readily visualized and evaluated");  Conservation Law
Foundation v. Andrus, 623 F.2d 712, 714-715 (1st Cir. 1979) (rejecting
Endangered Species Act challenge to lease sale based on Secretary's
reserved powers to enforce that Act at later stages);  County of
Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1378 (2d Cir.
1977), cert. denied, 434 U.S. 1064 (1978) (rejecting lease sale NEPA
challenge based on Secretary's ability to gather information and
modify OCS project at future stages);  Sierra Club v. Morton, 510 F.2d
813, 828 (5th Cir. 1975) (same).  To the extent that respondents cite
these cases for the proposition that the Secretary must, at the lease
sale stage, take an overview of possible subsistence impacts at later
stages, the Secretary has clearly already done so (see, e.g., Pet.
App. 85a-106a).

   /6/ Although the Secretary was not obligated to relitigate the
threshold ANILCA issue, we note that the Secretary never abandoned his
position that Section 810 was inapplicable to the OCS, both in his
Section 810 compliance documents prepared after Gambell I (see Pet.
App. 82a) and in the brief before the court of appeals in Gambell II
(see Br. 9 (noting that certiorari had not previously been sought
because the ruling in Gambell I was interlocutory and that the
Secretary adhered to the view that ANILCA did not apply to the OCS)).

   /7/ The Solicitor General is disqualified in this case.

   APPENDIX