DONALD P. HODEL, ET AL, PETITIONERS V. TRIBAL VILLAGE OF AKUTAN, ET AL. No. 86-303 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit The Solicitor General, on behalf of the Secretary of the Interior and the other federal parties, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. PARTIES TO THE PROCEEDING The petitioners are Donald P. Hodel, Secretary of the Interior, subordinate officials of the Department of the Interior, Anthony Calio, Administrator of the National Oceanic and Atmospheric Administration (NOAA), and NOAA. The respondents are: Governor Bill Sheffield, State of Alaska Alaska Independent Fishermen's Marketing Association Aleutians East Coast Resource Service Area Bering Sea Fishermen's Association Bristol Bay Borough Bristol Bay Coastal Resource Service Area Cenaliulriit United Fishermen of Alaska Tribal Village of Akutan Tribal Village of Togiak Tribal Village of Nelson Lagoon Trustees for Alaska Natural Resources Defense Council Eskimo Walrus Commission Northern Alaska Environmental Center City of Quinhagak Nunam Kitlutsisti Alaska Center for the Environment Village of False Pass Sierra Club Wilderness Society Environmental Policy Institute National Audubon Society Defenders of Wildlife Amoco Production Company ARCO Alaska, Inc. Chevron U.S.A., Inc. Elf Aquitaine, Inc. Exxon Corporation Mobil Exploration & Producing Services, Inc. Murphy Oil Company Sohio Alaska Petroleum Company Shell Western E & P, Inc. Union Oil Company of California International Association of Geophysical Contractors TABLE OF CONTENTS Parties to the Proceedings Opinions below Jurisdiction Statute involved Questions Presented Statement Reasons for granting the Petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H Appendix I OPINIONS BELOW The decision of the court of appeals (App., infra, 1a-7a) is reported at 792 F.2d 1376. /1/ The order of the district court as modified (App., infra, 9a-15a) is unreported. JURISDICTION The judgment of the court of appeals (App., infra, 20a) was entered on April 28, 1986. By order dated July 17, 1986, Justice Rehniquist extended the time for filing a petition for a writ of certiorari to and including August 26, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED Section 810 of the Alaska National Interest Lands Conservation Act, 16 U.S.C. 3120, is set forth in the appendix to this petition (at 40a-41a). QUESTIONS PRESENTED 1. Whether 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, the Secretary may not proceed with OCS leasing 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, even though the Secretary has found that significant restrictions on subsistence uses are unlikely, the Secretary still must follow the procedures mandated by Section 810 for disposition of public lands that "would significantly restrict subsistence uses" because of the possibility that such effects could nevertheless occur. STATEMENT This case concerns the application of Section 810 of the Alaska National Interest Land Conservation Act (ANILCA), 16 U.S.C. 3120, to the Secretary of the Interior's decision to hold Lease Sale 92 in the North Aleutian Basin area of the outer continental shelf (OCS) offshore Alaska. This case also concerns the appropriate judicial standard for determining whether injunctive relief is appropriate to redress a violation or a likely violation of Section 810. Both issues are currently pending before the Court in Hodel v. Village of Gambell, cert. granted, No. 85-1406 (June 2, 1986), and Amoco Production Co. v. Village of Gambell, cert. granted, No. 85-1239 (June 2, 1986). 1. In November 1974, the Secretary of the Interior first announced a lease sale in the Lease Sale 92 area (App. infra, 22a). The Secretary, however, postponed the lease sale to respond to concerns expressed by the State of Alaska. In March 1984, in response to those concerns, the Secretary reduced the sale area by 83 percent (from 32.5 to 5.6 million acres) and adopted stringent mitigation measures to provide extra protection for fishery habitats, commercial fishing, and biological resources (1 Minerals Mgmt. Service, Alaska OCS Region, U.S. Dep't of Interior, Final Environmental Impact Statement (FEIS) I-A-3 (1985); see Secretary of the Interior, Statement of Reasons for the Decision on Sale 92, 71 (Dec. 1985)). Although the Secretary was of the view that Section 810 of the ANILCA does not apply to the OCS, he prepared a thorough pre-sale Section 810 evaluation of the impacts on "subsistence uses" /2/ both of the lease sale and of possible future activities at the exploration and development and production stages; the Secretary incorporated the evaluation into the draft and final environmental impact statements prepared pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. (& Supp. II) 4321 et seq. (see FEIS, at IVK-1-IVK-10). In addition, the Secretary prepared a formal 72-page Statement of Reasons for the Decision on Sale 92 (Statement of Reasons). The Statement of Reasons concluded based on a careful evaluation of subsistence uses and consideration of the proposed oil and gas activities, that neither leasing, exploration, nor production resulting from Lease Sale 92 would significantly restrict subsistence uses (App. infra, 24a). Because the Secretary recognized, however, that findings concerning possible future activities, particularly those regarding activities at the development and production stage, necessarily involve substantial speculation, the Secretary added that he would conduct new Section 810 analyses prior to his approval of any exploration plan, as well as prior to his approval of any development and production plan (App., infra, 26a). 2. In December 1985, respondents, including the State of Alaska, Trustees for Alaska, and the Tribal Village of Akutan, filed three lawsuits (later consolidated) in the United States District Court for the District of Alaska to enjoin the Secretary from conducting Lease Sale 92, which was scheduled to commence with the opening of sealed bids on January 15, 1986 (50 Fed. Reg. 51372 (1985)). Respondents alleged, inter alia, that the Secretary had violated Section 810 of ANILCA by construing Section 810 to inquire implementation of its notice, hearing and findings provisions (see 16 U.S.C. 3120(a)(1)-(3)) only when a proposed disposition of public lands "would" significantly restrict subsistence uses. /3/ According to respondents, those additional procedural requirements are triggered where, as in this case, the proposed activity "may," but is unlikely to, restrict subsistence uses. On January 13, 1986, the district court granted respondents' motion for a preliminary injunction and enjoined the Secretary from holding Lease Sale 92 (App., infra, 10a-15a). The court relied on the Ninth Circuit's decisions in Kunaknana v. Clark, 742 F.2d 1145 (1984), and Village of Gambell v. Hodel, 774 F.2d 1414 (1985), cert. granted, No. 85-1239 (June 2, 1986), in concluding both that the Secretary's second-tier procedural duties under Section 810 were triggered by a showing of a mere "possibility" or "threat" of significant restriction of subsistence uses and that a preliminary injunction was required (App., infra, 11a-13a). The court ruled that Ninth Circuit precedent compels the issuance of a preliminary injunction where, as here, the moving parties had established a strong likelihood of success on their ANILCA claim (id., at 13a). Later that day, the district court granted the Secretary's and the oil companies' applications for a partial stay of the injunction to allow the Secretary to receive all bids and to retain them unopened after midnight deadline on January 15, 1986 (id. at 16a-17a). 3. On April 28, 1986, the court of appeals affirmed. The court of appeals framed the legal issue presented as whether "the notice and hearing requirements under ANILCA section 810(a) apply * * * (only when) the Secretary find(s) that a proposed action 'would significantly restrict subsistence used' (16 U.S.C. Section 3120(a) (emphasis added)) (o)r is a finding that significant restrictions 'may' result sufficient, even though such restrictions are deemed unlikely" (App., infra, 4a-5a). The court concluded that a determination that a significant restriction on subsistence is unlikely, but may occur, is sufficient to trigger Section 810's additional requirements. The court reasoned the dictum to the effect in its prior decision in Hodel v. Village of Gambell, supra, was "plainly controlling," notwithstanding that both the plain meaning of the statutory language and deference to agency construction supported an interpretation of Section 810 that limited its additional requirements to instances when the Secretary determined that such significant restrictions "would" occur (App., infra, 7a). The court acknowledged that in the absence of the Gambell dictum, these two competing considerations "might be compelling" (ibid.). Finally, the court of appeals affirmed the district court's issuance of a preliminary injunction on the ground that "(a)bsent unusual circumstances, irreparable damage is presumed and an injunction is required when an agency violates ANILCA Section 810(a)" (id. at 4a (citing Village of Gambell v. Hodel, 774 F.2d at 1422-1423)). See App., infra, 7a. Pursuant to a joint motion of the parties, the district court on May 21, 1986, issued an order continuing its stay of the preliminary injunction and premitting the Secretary to continue to hold the unopened bids pending this Court's disposition of Hodel v. Village of Gambell, No. 85-1406, and Amoco Production Co. v. Village of Gambell, No. 85-1239. REASONS FOR GRANTING THE PETITION 1. The Court has granted certiorari in Hodel v. Village of Gambell, No. 85-1406 (June 2, 1986), and Amoco Production Co. v. Village of Gambell, No. 85-1239 (June 2, 1986), to consider the application of Section 810 of ANILCA to an OCS lease sale, including: (1) whether Section 810 of ANILCA applies to the OCS; (2) whether OSC leasing may proceed before the Secretary complies with Section 810's procedural requirements for later stages of the OCS process; and (3) whether a finding that significant subsistence restrictions "may" occur, triggers the additional procedural requirements of Section 810. The Court will also consider in those cases the standards for granting injunctive relief to redress violations or likely violations of Section 810. Because the same issues are presented here as well, the Court should hold the petition in this case and dispose of it as appropriate in light of its decision in Village of Gambell. 2.a. In addition to repeating the errors of Village of Gambell, the decision of the court of appeals in this case exacerbates these errors. In Village of Gambell, the Secretary had determined that significant subsistence restrictions would not occur at either the lease or exploration stage, but were likely to occur in certain areas at the development and production stage, should that stage be reached, which the Secretary concluded was unlikely. The court of appeals in that case held (erroneously, in our view) that the possibility of such later restrictions was sufficient to trigger Section 810's additional procedural requirements, although Section 810 expressly provides that those procedures must be followed only when a proposed disposition of public lands "would" significantly restrict subsistence uses. The court, in effect, ruled that the statutory term "would" means "may." Here, the court compounded its error by ruling that the "would" standard was met even where, as here, the Secretary had found that significant restrictions on subsistence resources were unlikely to occur at any stage, including development and production. Hence, the court has further diverged from the plain meaning of Section 810, which by utilizing "would" and not "may", requires some likelihood of significant subsistence restrictions. Cf. Immigration & Naturalization Service v. Stevic, 467 U.S. 407, 422 (1984) (use of "would" in statute denotes standard of "likelihood"). b. Although we believe that the court of appeals erred in this additional respect, we do not seek review at this time on the issue. The basic issue of statutory construction is already before the Court in Village of Gambell and its decision in that case may well be controlling here. CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the Court's decision in Hodel v. Village of Gambell, No. 85-1406, and Amoco Production Co. v. Village of Gambell, No. 85-1239. Respectfully submitted. CHARLES FRIED Solicitor General RALPH W. TARR Solicitor Department of the Interior AUGUST 1986 /1/ The decision was originally issued as a memorandum opinion not for publication. On July 1, 1986, the panel issued an order redesignating the decision as a signed opinion (792 F.2d 1376). See App., infra, 8a. /2/ The term "subsistence uses" is defined in Section 803 of ANILCA, 16 U.S.C. 3113, as "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." /3/ Respondents also alleged that the Secretary's decision to conduct the lease sale violated Section 19 of the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1345, NEPA, 42 U.S.C. (& Supp. II) 4321 et seq., and Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1536. APPENDIX