Litigation over oil and gas leasing on the Outer Continental Shelf (“OCS”) did not end with the challenges to the five-year programs. The most exciting challenges were to the lease sales themselves; such cases consumed significant Division resources in the 1980's, usually being handled by teams with members from each section whose issues had been raised in the complaint, plus, in the anticipation of an expedited appeal, an attorney from the Appellate Section. These cases presented a unique problem of timing, brought on by the fact that there were usually limited business days between the time that a cause of action arose and leasing was to take place.
In one such challenge to a proposal to lease oil and gas on the sensitive fisheries area of Georges Bank, off Massachusetts, Com. of Mass. v. Andrus, 481 F.Supp. 685 (D. Mass., 1979), a notice of sale was issued by the Secretary of Interior on October 5, 1979 scheduling the opening of bids for Tuesday, November 6, 1979 in the State of Rhode Island. The State of Massachusetts and the Conservation Law Foundation brought suit to stop the sale and the matter came on for hearing before the Federal District Court for the District of Massachusetts on a motion for preliminary injunction and cross-motions for summary judgment.
Arguments by Natural Resources Section (“NRS”) attorneys were held the prior Wednesday, Thursday and Friday in Boston. ENRD’s appellate attorney wrote two briefs over the weekend - one assuming our win, the other assuming our loss. The District Court opinion denying the plaintiffs’ motion for preliminary injunction (Com. of Mass., op. cit. supra) was filed Monday morning, November 5.
Plaintiffs filed an appeal and brought on a motion for an injunction pending appeal. Appellate briefs were immediately filed and argument heard that very day by the First Circuit. Their decision denying an injunction pending appeal was entered Tuesday morning, the day of the sale. Conservation Law Foundation of New England, Inc. v. Andrus , 617 F.2d 296 (1st Cir. 1979). However, the Court stayed opening of bids until 2 PM to permit the plaintiffs to seek relief from the Supreme Court. Counsel for both sides flew immediately to Washington where plaintiffs/appellants argued their case for an injunction pending appeal before the Circuit Supreme Court Justice, then Justice Brennan, who continued the First Circuit’s stay pending consideration by the full Court. See, for this history, Conservation Law Foundation of New England, Inc. v. Andrus, 623 F.2d 712 (1st Cir. 1979)
The Supreme Court vacated Justice Brennan’s stay on November 9, but by that time the noticed date of November 6 for the opening of bids had passed, requiring the Secretary to renotice the sale, which he subsequently did, setting the sale for December 18. By December 6, the parties were back before the Circuit arguing the merits of plaintiffs’ appeal of the District Court’s denial of the preliminary injunction, and on December 17, the Court upheld the District Court. Id. The leases were issued the next day.1
1 Although the Circuit Court explicitly conditioned its opinion on the limited time available for review, noting that the plaintiffs were free to pursue their arguments on the merits, see id. at 719-20, it does not appear that they did. The controversy had by that time been pending since January of 1978, when plaintiffs had succeeded in obtaining a preliminary injunction against the sale, on grounds that were subsequently mooted by the passage of the Outer Continental Shelf Lands Act Amendments of 1978. See Com. of Mass. v. Andrus, 594 F.2d 872 (1st Cir. 1979)