Joint Appendix — Watt v. California

Supreme Court brief1983

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WU 1983

Nos, 82-1326, 82-1327 and 82-1511 L i

In the Supreme Court of the United States

OCTOBER TERM, 1982

JAMES G. WATT, ET AL., PETITIONERS,

STATE OF CALIFORNIA

WESTERN OIL AND GAS ASSOCIATION, ET AL., PETITIONERS

STATE OF CALIFORNIA, ET AL.

STATE OF CALIFORNIA, ET AL., CROSS-PETITIONER

JAMES G. WATT, ET AL.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOINT APPENDIX

(Counsel of Record Appear on Inner Cover)

———— Se

PETITIONS FOR CERTIORARI FILED BY

JAMES G. WATT, ET AL., AND WESTERN OIL

AND GAS ASSOCIATION, ET AL., FILED ON

FEBRUARY 5, 1983

CROSS-PETITION BY THE STATE OF CALIFORNIA,

ET AL., FILED ON MARCH 11, 1983

CERTIORARI GRANTED MAY 16, 1983

TRENT W. ORR

NATURAL RESOURCES DEFENSE COUNCIL,

INC.

25 Kearny Street

San Francisco, Calif. 94108

(415) 421-6561

Counsel of Record for Respondents-Cross-Petitioners

Natural Resources Defense Council, et al.

ROGER BEERS

BEERS AND DICKSON

380 Hays Street, Suite 1

San Francisco, Calif. 94102

(415) 861-1401

Counsel of Record for Respondents-Cross-Petitioners

County of Humboldt, et al.

JOHN K. VAN DE KAMP

Attorney General

THEODORE BERGEP.

Deputy Attorney Genera!

3580 Wilshire Boulevard

Los Angeles, Calif. 90010

(213) 736-2191

Counsel of Record for Respondents-Cross-Petitioners

State of California, et al.

E. Edward Bruce

COVINGTON & BURLING

1201 Pennsylvania Avenue, N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

Counsel of Record for Petitioners-Cross Respondents

Western Oil and Gas Association, et al.

Rex. E. Lee

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

Counsel of Record for Petitioners-Cross-Respondents

James G. Watt, et al.

TABLE OF CONTENTS *

Docket Entries (No. 81-2080) ............ cece eeaee

Docket Entries (No. 81-2081) ............ce eevee

Complaint for Declaratory and Injunctive Relief and

ls ib oups es V ho eteecees

Letter, Apri! 20, 1979, to C.L. Haslam, General

Counsel, Denartment of Commerce, and Leo M.

Krulitz, Solicitor, Department of the Interior,

from Leon Ulman, Deputy Assistant Attorney

General, Office of Legal Counsel (Lodged Ex.

ee es ReGen Wiese v.es'seo 0.

Memorandum, March 23, 1979, by Eldon Greenberg,

General Counsel, National Oceanic and Atmos-

pheric Administration, “Application of CZMA

Section 307(c)(1) Consistency Requirement to In-

terior’s OCS Pre-Lease Sale Activities” (Lodged

ea iain en tid vse eos ueese se

Letter, July 8, 1980, to Cecil Andrus, Secretary of

the Interior, from Michael Fischer, California

Coastal Commission (A.R. 170W)...........005-

Letter, October 22, 1980, to Michael Fischer,

California Coastal Commission, from Assistant

Secretary of the Interior, with attachment (A.R.

er es cle besebersenenese

California Coastal Commission Resolution of Decem-

ee pauses eccesccesess

Letter, December 24, 1980, to Cecil Andrus, Secre-

tary of the Interior, from Edmund Brown, Gover-

nor of the State of California, with attached “Gov-

ernor’s Recommendation in Response to DOI

Proposed Notice of Sale—Lease Sale No. 53)

i Laclede kpentencaseaness

“The opinion of the court of appeals is set out in the Appendix to the

Petitior, No. 82-1326 (Pet. App.) at pages la-33a; the opinion of the

district court is set out at Pet. App. 34a-7Sa.

(1)

Page

Letter, March 23, 1981, to James Watt, Secretary of

the Interior, from Michael Fischer, California

Coastal Commission (A.R. 365W) .........5-00 es 106

California Coastal Commission Resolution of March

31, 1981 (attachment to A.R. 406W) ............ 109

Letter, April 28, 1981, to Michael Fischer,

California Coastal Commission, from Moody

Tidwell, Deputy Solicitor, Department of the In-

terior (Lodged Document L-O) ..........55e0e es 133

Letter, May 1, 1981, to Edmund Brown, Governor

of the State of California, from James Watt, Sec-

retary of the Interior, with two enclosures

2 A, 5 ee ere ere errr 135

Affidavit of Mari Gottdiener, California Coastal

Commission, July 1, 1981, including Exhibits 1

CEI, von ciecavavecuecadreestasuceseeas 152

Order granting certiorari No. 82-1326 ...........5. 156

Order granting certiorari No. 82-1327 ..........555 157

Order granting certiorari No. 82-1511 ............. 158

RELEVANT DOCKET ENTRY

PLAINTIFFS

THE STATE OF CALIFORNIA, Acting by and through

GOVERNOR EDMUND G. BROWN, JR., THE CALIFORNIA

COASTAL COMMISSION, THE CALIFORNIA RESOURCES

AGENCY, THE CALIFORNIA DEPARTMENT OF FISH AND

GAME, THE CALIFORNIA DEPARTMENT OF

CONSERVATION,

DEFENDANTS

JAMES G. WATT as Secretary of the Interior; THE UNITED

STATES DEPARTMENT OF INTERIOR; EDWARD HASTEY as

Acting Director of the United States Bureau of Land

Management; ROBERT BUFORD as Director Designate of

the United States Bureau of Land Management in his

official capacity as Director when and if assumed; and the

UNITED STATES BUREAU OF LAND MANAGEMENT

DATE NR

PROCEEDINGS

4/29/81 nm L.

5/1/81 dv 2.

mor

5/12/81

10.

Fld complt. Issd summs.

Case may be ref to Mag McMahon for

Discovery.

Fld pltfs’ note of motn & motn for prelim

inj; memo of P&A in suppt; & declar

retbl 6/1/81 at 10 AM

Fld pltfs note of of lodging varios docs

Fld Federal deft’s ex parte applic with

declar, for set of schedule for briefing &

hrg on pltf motn for prelim inj

Fld deft’s declar of James R. Arnold

Fld pltfs ex parte applic for oed short-

ening ti & cal on other than motn day &

declar & memo of P/A in suppt thereof

. Fld stip & ORD(MRP) consolidatng

cases 81-2080 & 81-2081, under

CV81-2080

Fld ex parte applic for Ord shortening ti

. Fld memo in suppt of motn to interve as

deft

Fld Ord graning ex parte applic ord

shortening ti

5/13/81

. Fld note of motn for lv to intervene as

deft reble 5-22-81 10am

Fld motn for lv to interverne as deft

Fld Ord pltfs motn for prelim inj be

heard on 5-22-81 10am

. Fld plftfs consent of ens! for designation

pur local rule 1.3

Fld deft’s memo in resp to pltf motn for

prelim inj

Fld aff in suppt of motn to interverne

. Fld note of Ord granting ex parte applic

for rd shortening ti b applic for interven-

tion

Fld opp of applic for interve to pltfs

motn for prelim inj

Fld defts’ note of lodgng docs

. Fld note of Francis X. Bellotti, AG of

Massachusetts, to fil a brief as Amicus

Curiae

. Fld applic for lv to appear Pro Hac Vice

on behf of Francis X. Bellotti

Fld pltfs in inerventn Local Govts’ note

of motn for prelim inj, retb] 5/22/ 10 am

. Fld pltfs in interventn Local Govts’

motn for prelim inj

. Fld pltfs in interventn Local Govts’

memo of P&A in suppt of motn

5. Fld Local Govts’ motn to intervene as

ptys pltf, retb] 5/22/81, 10 am

Fld Local Govts’ note of motn to inter-

vene

. Fld Local Govts’ memo in suppt of motn

to intervene

. Fld Local Govts’ applic & memo for ord

shrtning tim, aff of Irwin Karp in sup &

ORD (MRP) shortng tim is shortnd such

that the service which has already be

made of th docs as std in the Cert of Sve

attched to the Note of Motn to Inter-

vene is sufficient svc on the ptys. Fur

ORD that each pty to actn is to notified

by phone nlt noon on 5/14/81 of this ord.

5/14/51

5/15/81

30.

40.

Bet

. Fld Ex parte applic by St of Alaska for

leav to fil Amicus Curiae Brief

Fld ORD(MRP) GRANTING leavy for St

of Alaska to fil Amicus Curiae Brief

. Fld St of Alaska’s applic & ORD(MRP)

allowing Lauri J. Adams to appear as

nonresident atty design Theodora

Berger or John Saurenman as local ens}.

. Fld St of Alaska’s note & Amicus Curiae

Brief on pltfs motn for prelim in)

. Fld St of Alaska’s aff of sve of various

docs re Amicus Curiae re prelim inj

Fld applic of Coastal States Organiza-

tion to fil brief as amicus curiae

. Fld ORD(MRP) GRANTING Coastal

States Organizatn leav to fil brief as

amicus curiae

Fld amicus curiae brief of Coastal States

Organizatn in suppt of pltfs’ motn prelim

inj

. Fld fed defts’ declar of James Lecky

38,

Fld fed defts’ 2nd note of lodgng

Fld fed defts’ exh L-U, L-Y, L-EE, &

L-FF

Fld applic St of Maine’s requst to appear

as Amicus Curiae

. Fld applic St of Maine’s applic &

ORD(MRP) allwng Elzabeth Butler to

appear as non-resdnt atty design John

Saurenman as local cns]

Fld pltf St of Calif closng memo in suppt

of motn for Prelim Inj

Fld pitfs’ note of lodgng docs

Fld pltfs errata sheet

Fld memo of amicus curiae Francis

Bellotti in suppt of motn for prelim inj

concurring stmt of the St of Maine

Fid pltfs’ reply brief in suppt of motn for

prelim in)

5/18/51 dv

5/20/51 dv

"1981 dv

“5/191 dv

60).

7. Fld St of Oregon’s motn for amicus Curi-

ae status

. Fld St of Oregon’s aff supptg motn for

ord grntg Amicus Curiae status

. Fld ORD(MRP) GRANTING St of

Oregon Amicus Curiae status

. Fld applic St. of Oregon’s motn for pro

hac vice

. Fld ORD(MRP) GRANTING pro hac

vice for State of Oregon, allowing Mary

Deits, Ast AG for St of Oregon, to ap-

pear before this crt.

Fld St of Oregon’s designatn of local

ensl, desig George Deukmejian, AG, &

Theodora Berger, Dep AG.

3. Fld ORD(MRP) design AG George

Deukmejian & Dep AG Theodora

Berger & John Surenman as local ens!

for St of Oregon

fld Local Govts’ reply memo of Fed

defts’ & to applicnts-for-interventns’

oppos to motn for prelim inj

. Fld Co. of San Diego’s motn for leav to

intervene as a pty pltf, retbl 6/15/81 at

10 am

. Fld Co of San Diego’s note of motn

. Fld Co of San Diego’s memo of P&A in

Suppt ot motn

Fld Co of San Diego's dec of sve by mail

of motn & related docs

LODGED Co of San Diego's prop re-

view of Administrativ Actn & Complant

in Intervn for declaratory & Injunctv

Relief & Mandamus

Fld resp of California pltfs to Westrn Oil

& Gas Assoc’s opposn to prelim inj

motns

Fid applic & ORD(MRP) allowng E.

Edward Bruce to appear as non-residnt

at desig Howard Privett as loc! ensl, on

bhf of Western Oil & Gas Assn.

*5/19/81

5/ 20/ x 1

61.

62.

70.

71.

Fld applic & ORD(MRP) allowng

Constance Chatwood to appear as non-

resid at desig Howard Privett as locl

ensl, on bhf of Western Oil & Gas Assn.

Fld proof of sve of S&C, svd on Robert

Burford by svg Carole Purcell on 5/4/81;

US Bureau of Land Mgmnt by svg Ed

Hastey, Actng Dir.; Edward Hastey

Actng Dir of BLM; James Watt, Secy of

Interior by svg Carol Kesterson; US

Dept of the Interior by svg Carol

Kesterson, Chief, Docket Rerds; on 55

. Fld stip re presence of affiants

Fld Natural Resources Defns Council's

reply to opposn of Westrn Oil & Gas et

al. to pltfs’ motns for prelim inj

. Fld NRDC’s respns to Western Oi &

Gas Assn’s motn to intervene

Fld applicnts ansr for intervntn to pltf

Cal complt for declatry and inj relief and

mandms

. Fld pltfs’ exh subm on oil compnys

positn regrdng the possib impossiblty

of*undoing” a lease sale

Fld ORD(MRP) allowng Western Oil &

Gas Assoc et al lev to intervene as defts

Fld ORD(MRP) GRANTING motn of lo-

cal govts to intervene as pltfs

Fld complant of pltfs in interventn

seekng review of an administrativ deci-

sion, declaratory & injunctiv relief, &

mandamus

Fld proof of sve of pitfs’ note of motn &

motn for prelim inj, P&A, on James

Arnold by mail on 5/4/81

MIN ORD: Crt GRNTS motns to

interven & GRANTS Amicus Curiae

briefs. ORD matrs contd to 5/27/81 at 9

am.

5/2851

5/2751

61051

6/12/51

61541

61951

6/22/51

Fld Prelim Injunctn that motns of pltfs

in interventn are GRANTED & Fed

defts, etc. are restrained & enjoined fr

acceptng or rejectng any bids, issuing

any leases or tkng any other actn in

connectn wOCS Lease Sale 53, Santa

Maria Basin, for trac #129 thru 142, 144

thru 146, 148 thru 155 & 158 thru 164

exc for receiving & opening of bids &

conducting internal admin review of all

bids. Fur ORD that no prtys, bidders,

etc. sh be deemed per permitted to ac-

quire any rights or interests as result of

this permitted opening of bids. (ENT

5-29-81) Mid Note

Fld reporter transcript of proceeding on

5/27/81

MIN ORD: Crt grant inpart prelim inj &

ord no bond to be post as to CA,

MIN ORD: stat conf; crt ORDS x-mots

for S/J be fild 6-19-81, resp to be fld

7-2-81 & hrg set 7-10-81 at 10am; cys of

papers to be delive to law office & cham-

bers; crt fur ORDS defts have 60 days to

ans

Fid deftintervenors AMENDED AN-

SWER to COMPLAINT

. MIN ORD: ens! to file statmnt of

genuine issue of material fact & prop

finding & judg by 7-2-81 crt take motn

to intervene under submission

Fld pltfs note of lodging docs

. Fld pltf memo of P/A in suppt of pltf

motn for SJ

Fld pltf's note of motn & motn fr S/J

retble 7-10-81 10am

. Fld intervention aff of Irwin D. Karp

. Fld intervention memo of P’/A in suppt

of motn fr SJ

. Fld intervention note of motn fr S/J

retble 7-10-81 10am

. Fld note regarding Coastal State organi-

zation brief on S/J

6/25/51

6/25/81

7/281

7/6/81

98.

. Fld table of author

Fld pltf Stip & Ord (MRP) modifying

prelim inj

. Fld 3rd note of lodge docs given to clrk

LODGED pltfs’ prop findgs of fet &

concl of law

LODGED pltfs’ prop SJ

LODGED pltf State of Califs prop

findngs of fet & concl of law in suppt of

prelim inj

Fld pltf-in-intrvntn Local Govts’ reply

memo re x-motns for SJ & WOGA

intrvnrs’ motn to dsms

Fld intrvnr-defts’ Opinion in No Oilport

y. Carter, Civ no C80-360M (WD Was)

Fld intrvnr-deft Chevron USA, Inc’s re-

ply memo in suppt of motn for SJ

Fld intrvnr-deft Chevron USA, Inc’s re-

ply memo in suppt of motn to dsms cmp!

of NRDC, et al, & Co. of Humboldt, et

al, for lack of standing

. Fld intervnr-deft Chevron USA _ Inc’s

stmt of genuine issues of fet & law

. Fld State of Oregon's brief of Amicus

Curiae

. Fld pltfs’ aff of Trent W.Orr

Fld pltfs’ reply memo in suppt of

NRDC’s motn for S/J

. Fld pltf State of Calif's memo of P&A in

oppsn to defts’ motns for S/J

. Fld pltf State of Califs stmt of genuine

issues

Fld amicus Curiae A/G of Massachu-

setts’ memo in suppt of pltfs’ motn for

. Fld So. Carolina Coastal Council’s motn

& ORD(MRP) to appear pro hac vice &

to fil amicus curiae brief; amicus curiae

brief

Fld pltfs-in-intrvntn local govts’ stmt of

— & prop findngs of fet — concl of

71681

713/81

710/81

7/13/81

710/81

7/14/81

716/81

110,

111.

112.

113.

114.

. Fld pltfs-in-intrvntn local govts’ FIRST

AMENDED COMPLAINT seeking re-

view of an administratv decision, declar

& inj relief, & mandamus

. MIN ORD: On Crt’s own motn the motn

to dsms & all motns for S/J set for 7/1

are contd to 7/17/81 at 10 am

. Fld intervenor-defts’ ANSWER TO

FIRST AMENDED COMPLAINT of

pltf-intrvenor local govts

. Fld memo of AMICUS CURIAE state

of Alaska in suppt of pltf motn fr S/J

. Fld pltfs note of motn supplement the

complt pur to F.R.C.P. rule 15 memo of

PA IN SUPPT THEREOF RETBLE

— 3/81 10 am

. Fld pltfs note of motn to supplemental

the compl pur to ruel 15 8/3/81

. Fld pltf memo of P/A in suppt of motn to

supplemtnal the complt

Fld applic fr permission to file Amicus

Curiae Brief

. Fld Ord (MRP) granting permission to

file Amicus Curiae Brief

. Fld Federal deft resp to ex parte applic

by stat of CA to amend complt

Fld Amicus Curiae Brief on behalf of

San Luis Obispo County area council

gov't in suppt of pltf & pltf in interven-

tion

Fld stat of CA ex parte Ord (MRP)

settlemnt complt on 7/17/81 10 am

Fld. note of obj the depart of interior

administrative record

Fld ex parte applic fr ord shortenting ti

& fr cal on othr than motn day declar

memo of P/A suppt thereof

Fld intrvnr-dft’s memo in oppos to pltf's

mtns to suplmnt complt.

Fld fed dfts’ oppos to mtns to suplmnt

compltzzs.

7/23/81

*T17/81 dv

7/23/81

7-27-81

7/27/81

117,

11s,

119,

120.

121.

122.

. Fld fed defts’ ANSWER TO FIRST

AMENDED COMPLAINT of local

govts

. MIN ORD: Hrg 1) pltfs motn to supplt

the emplnt & motn for SJ; 2) interv-de

motn for S/J & motn to dsms; 3) Fed

defts motn for SJ: Crt DENIES motn

to supplmnt the cmplnt. Crt taks matr

under submisn & cont to 7/27/81 at 9 am

for Crt’s rulng. Crt to grant a 30 dy stay

at time of rulng.

Fld federal defts’ ANSWER TO COM-

PLAINT of California

Stay ORD(MRP) that enforemt of jdmt

of 7/27/81 shall be stayed for 45 days to

permit appellate proceedgs, as fur

specified 2/in this ord

Fld Stay ORD(MRP) that enforemt of

jdmt of 7/27/81 shall be stayed for 45

days until 9/10/81; fur ord that OCS

Lease Sale 53, etc is tolled 45 days, secy

of Interior isempowered to cont to hold

bids for thoe tracts opened on 5/28/81 &

not considered rejected on 7/27/81; fur

ORD that crt’s prelim injunc of 5/28/81

shall be cont in effect for 45 days as to

certain tract numbers as fur specified

2/in this ord

Fld Stip & ORD re all materials lodged

by all ptys w/ert are considered part of

the record of the Crt’s determinatn of

this case

MIN ORD: Hrg on Crt’s rulng on pltfs

motn to suppl the cmplnt, motn to dsms

& SJ motns: Crt GRANTS Co of San

diego’s motn to intrven tkn under subt

on 6/15/81. GRANTS & DENIES in part

motn to dsms & motns for SJ. DENIES

motn to supplement the cmplnt.

GRANTS a 45 dys stay. Crt to fil writn

opinion by 8/4/81

Fld ORD(MRP) re inj ent 7/27/81 (see

ord)

19/8]

81951

s 26/51

831/51

916/51

918/81

9/188]

129.

130,

131.

. Fld Opinion (MRP). (ENT 8/18/81) mld

cpies & note of ent.

. Fld ORD(MRP) grantng dft-intrvnr’s

mtn to dism in NRDC vs Watt Mtn to

dism in Calif vs Watt denied. (ENT

% 1881) mid cpies notices. MD-JS-6

. Fld ORD(MPR) grantng pltfs mtn fr

SJ. Mtn fr S/J re pltfs claim arisng

undr Coastal Zone Management Act

denied. Crt fun ORDS(MRP) dfts & dft-

intrynr’s enjoind frm certain actns. Dft

mtn fr SJ re claims undr Outer Conti-

nental Shelf Lands Act grantd. Pltf's

mtn fr SJ re claims undr certain stat-

utes den Dft-intrvnr’s mtn to dism pltfs

Natural Resources Defense Council

grantd. Dft-intrvnr’s mtn to dism pltf-

intrvnrs Count of Humboldt denied,

each prty to bear own costs. crt shall re

cont jurisdetn ovr this case to ensure

compliance word. (ENT 818/81). mld

cpies & note of entry.

. Fld deft’s NOTC OF APPEAL to 9th

Cir C/A frm ord ent 818/81. $70.00 fing

& docket fees pd.

. Fld deft govt’s NOTC OF APPEAL to

9th Cir C/A frm ord ent 8/18/81,

. Fid deft transerpt designatn

Lodged copy of ord frm USCA, 9th Cir,

grantg appellants’ motn for partial stay

p appeal. Perm inj from DC ent 8/18/81

is stayd til 14 dys aftr mandate of the

Appellants’ motn for expeditd review is

grantd

Fld pltfs’s NOTC OF APPEAL to 9th

Cir C/A frm ORD ent 8/18/81 $70.00

fldng & docket fees pd.

Fld deft Western Gas’s amdd transcrpt

desig & ordering form on appeal

Fid pltfs trnserpt desig & orderng form

on appeal

PLAINTIFFS

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

THE SIERRA CLUB; FRIENDS OF THE EARTH: FRIENDS OF

THE SEA OTTER: AND THE ENVIRONMENTAL COALITION ON

LEASE SALE 53,

DEFENDANTS

JAMES G. WATT, in his official capacity as Secretary of the

United States Department of the Interior; the UNITED

STATES DEPARTMENT OF THE INTERIOR; ED HASTEY, in his

official capacity as Acting Director of the United States

Bureau of Land Management; ROBERT BURFORD, Director-

Designate of the United States Bureau of Land Management

in his official capacity as Director when and if assumed; and

the UNITED STATES BUREAU OF LAND MANAGEMENT,

DATE. NR PROCEEDINGS

4/29/81 jde 1. Fld Complt. Issd Summs.

Case may be ref to Mag Kronenberg for

dsevry.

2. Fld Piltfs’ Note of related case purs to

LR 2g).

5/1/81 dv 3. Fld plitfs’ motn for prelim inj, retbl

6/1/81 at 10 AM

4. Fld pltfs’ memo of P&A in supt

LODGED Pitfs’ prop prelim inj

Fld defts declaratn of James R. Arnold

Fld Fed defts Ex Parte applicatn w dec-

laratn for settng of schedule for briefn &

hrg on pltfs’ motn for prelim injunctn

Fld ORD(MRP,RJK) transfrng actn to

Mariana R. Pfaelzer for all future pro-

cedngs. parties notfd. Case may be re-

ferred tomagistrate MacMahon for dise.

Fid Ord the pltfs motn prelim inj be

held 522-81 10 am

9. Fld Stip & Ord(MRP) for consolidaton of

case no. 81-2080

5/22/81 sb 10. Fld Answer of appli for INTERVEN-

TION to complt of NRDC et al

ll. Fld pltfs proof of serv/acknowledge of

serv

5/28/81 sb 12. i. motn to appear as AMICUS CURI-

13. Fld applic for admins pro Hac Vice

VVSl yd

Dor

-1

5/4/81 cm

eos

5/19/81

6/12/81

8/19/81

14,

24,

Fld retn summs serv to Robert Burford,

5-4-51 & United states Bureau on 5-5-8]

& United state bureau of Land Manage-

ment on 5-5-81 & Edward Hasty, Acting

Director, of Bureau of Land manage-

ments on 5-5-81

Fld intervenor-def amended answer to

complt NRCD etal

Fld Stip & Ord subst of parties in inter-

vention

Fld note of motn for SJ; memo of P’A in

suppt thereof retble 7-10-81 10 am

Fld Federa; deft's reply memo in suppt

of their motn fr S/J

Fld local gov't pltf reply memo re corss-

motn fr SJ & Woga intervene motn to

Fld Federal deft's ANSWER TO

COMPLT of natura! Resource defense

Council Ine E

Fld Opinion (MRP). (ENT 81881) mld

cpies & note of ent.

Fld ORD(MRP) grantng dft-intrevnr’s

mtn to dism in NRDC vs Watt. Mtn to

dism in Calif vs Watt denied. (ENT

818/81) MD-JS-6 mld cpies & note of

ent.

Fld Fld ORD(MRP) grantng pltfs mtn

fr SJ. Mtn fr SJ re pltf claim arisng

undr Coastal Zone Management Act

denied. Crt Fur ORD(MRP) dfts & dft-

intrvnr’s enjoind frm certain actns. Dft's

fr S/J re claims undr Ourter Continental

Shelf Lands Act grantd Pltfs mtn fr SJ

re claims undr certain statutes denied.

Dft-intrvnr’s mtn to dism pltfs Natural

Resources Defense Council grantd. Dft-

intrvnr’s mtn to dism pltf-intrvnr’s

County of Humboldt denied, each prty

to bear own costs. Crt shall retain cont

jurisdetn ovr this case to ensure compli-

ance w/ord. (ENT 8/18/81). Mid cpies &

note of ent.

Fid deft’s NOTC OF APPEAL to 9th

Cir C/A frm ord ent 8/18/81.

lla

819/81 am 25. Fld deft’s NOTC OF APPEAL to 9th

Cir C/A frm ord ent 818/81.

sb 26. Fld respondent proof of serv or ORD

onmotn

b 27. Fld transcript designation & deft,

b 28 Fld req fr copy of transcript

nm Mn

9/18/81

GEORGE DEUKMEJIAN,

Attorney General

N. GREGORY TAYLOR

Assistant Attorney General

THEODORA BERGER

JOHN A. SAURENMAN

Deputy Attorneys General

3580 Wilshire Boulevard

Los Angeles, California 90010

Telephone: (213) 736-2191

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

CIVIL ACTION NO. 81-2080-MRP(Mx)

Filed: Apr. 29, 1981

THE STATE OF CALIFORNIA, ACTING BY AND THROUGH

GOVERNOR EDMUND G. BROWN, JR., THE CALIFORNIA

COASTAL COMMISSION, THE CALIFORNIA AIR RESOURCES

BOARD, THE CALIFORNIA RESOURCES AGENCY, THE

CALIFORNIA DEPARTMENT OF FISH AND GAME, THE

CALIFORNIA DEPARTMENT OF CONSERVATION,

PLAINTIFFS,

JAMES G. WATT AS SECRETARY OF THE INTERIOR; THE

UNITED STATES DEPARTMENT OF INTERIOR; EDWARD

HASTEY AS ACTING DIRECTOR OF THE UNITED STATES

BUREAU OF LAND MANAGEMENT; ROBERT BURFORD AS

DIRECTOR DESIGNATE OF THE UNITED STATES

BUREAU OF LAND MANAGEMENT, IN HIS OFFICIAL CAPAC-

ITY AS DIRECTOR WHEN AND IF ASSUMED; AND THE

UNITED STATES BUREAU OF LAND MANAGEMENT,

DEFENDANTS.

REVIEW OF ADMINISTRATIVE ACTION

COMPLAINT FOR DECLARATORY AND INJUNCTIVE

RELIEF AND MANDAMUS

Plaintiff, the State of California, alleges:

DESCRIPTION OF THE ACTION

1. This action for declaratory and injunctive relief and

for relief in the nature of mandamus seeks to review the fi-

nal decision of April 28, 1981 of the Secretary of the Interi-

or (“Secretary”) to lease certain areas off of the central

California coast in the Santa Maria Basin for the explora-

tion, development and production of oil and gas resources,

i.e. the decision to lease the Santa Maria Basin. This action

seeks to prevent the Bureau of Land Management from

leasing 34 of the 115 tracts in this lease sale which is cur-

rently scheduled for May 28, 1981. This action also seeks to

require the Secretary and the Department of the Interior

(“Department”) to conduct consistency reviews pursuant to

the Coastal Zone Management Act (16 U.S.C. § 1456(c)).

JURISDICTION

2. The jurisdiction of the Court is invoked pursuant to:

(a) The provisions of 28 U.S.C. § 1331(a) and 28 U.S.C.

§§ 2201-2202, this being an action for declaratory and in-

junctive relief arising under the Constitution and laws of

the United States;

(b) The provisions of 28 U.S.C. § 1361, this being an ac-

tion in the nature of mandamus to compe! an officer or em-

ployee of the United States or any agency thereof to per-

form a duty owed to plaintiff;

U.S.C. $$ 701-706, which provides for the judicial review

of actions of federal agencies;

(d) 43 U.S.C. $§ 1349(a)(1) and 1349(b)(1) of the Outer

Continental Shelf Lands Act Amendments of 1978;

(e) The provisions of the National Environmental Policy

Act, 42 U.S.C. § 4321 et seq.;

(f) 16 U.S.C. § 1540(c) of the Endangered Species Act.

VENUE

3. Venue in the United States District Court for the

Central District of California is proper in this case both be-

cause this is the judicial district in which a defendant re-

sides or may be found and because this is the judicial dis-

trict nearest the place where the cause of action arose, (28

U.S.C. § 1391; 43 U.S.C. § 1349(b)(1).)

PARTIES

4. Plaintiff in this action is the State of California acting

by and through the Governor and the following State

agencies, all of which participated in the administrative

process which culminated in the decision to lease the north-

ern 34 tracts in the Santa Maria Basin:

(a) Edmund G. Brown, Jr., is Governor of the State of

California and as such, participated extensively in the

administrative process. A part of this participation was the

submission of extensive recommendations and comments

pursuant to section 19(c) of the Outer Continental Shelf

Lands Act Amendments [43 U.S.C. § 1345(c)] concerning

the size, timing and location of the lease sale.

(b) The California Coastal Commission (“Coastal Com-

mission”) is charged with implementing the California

Coastal Act of 1976 (Cal. Pub. Res. Code § 30000 et seq.)

and is designated as the State coastal zone planning and

management agency for any and all purposes and may exer-

cise any and all powers set forth in the Coastal Zone Man-

agement Act (16 U.S.C § 1451 et seq.; “CZMA”) that re-

late to the planning or management of the coastal zone

(Cal. Pub. Res. Code § 30330). The Coastal Commission re-

peatedly commented that the decision to lease the northern

31 tracts in the basin was inconsistent with California’s fed-

erally approved Coastal Management Plan, and repeatedly

requested that a consistency determination be conducted

by the Department.

State agency charged with coordinating, encouraging and

reviewing the efforts of all levels of government to attain

and maintain ambient air quality standards for the State

(Cal. Health & Safety Code §§ 39003, 39500). The CARB is

also the designated air pollution agency for all purposes set

forth in federal law including the preparation of the State

implementation plan. (Cal. Health & Safety Code § 39602.)

The CARB commented regarding deficiencies in the Envi-

ronmental Impact Statements prepared for the lease sale

and noted the adverse air quality impacts of the lease sale.

(d) The California Resources Agency is generally respon-

sible for the protection of the various environmental and

natural resources of the State (Cal. Gov. Code § 12805.)

The Resources Agency is also responsible for administra-

tion of the California Environmental Protection Program.

(Cal. Pub. Res. Code §§ 21190-21193.)

(e) The California Department of Fish and Game is

charged with establishing criteria for determining whether

a species of mammal, bird, fish, amphibia or reptile is rare

and endangered and is further charged with inventorying

said threatened species. (Cal. Fish and Game Code

§§ 900-902.) The Department of Fish and Game is also

charged with encouraging the proper maintenance and utili-

zation of the living resources of the ocean. (Cal. Fish and

Game code §§$ 1700 et seq.)

(f) The California Department of Conservation is

charged with the supervision of oil and gas drilling, opera-

tion and maintenance so as to prevent damage to life,

health and natural resources, to prevent loss or damage to

oil and gas deposits or the loss of oil and gas reservoir ener-

gy. (Cal. Pub. Res. Code §§ 603, 607, 3106.)

5. The State of California acting by and through the Gov-

ernor and these State agencies has a valid legal interest

which is or may be immediately and adversely affected by

leasing the 34 northern tracts in the Santa Maria Basin for

oil and gas exploration, development and production, and

may therefore maintain this action seeking compliance with

the Outer Continental Shelf Lands Act (43 U.S.C.

§§ 1349(a)(1), 1349(a)(3).

DEFENDANTS

6. James G. Watt is the Secretary of the Interior. In

such executive capacity he has the authority pursuant to

the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331,

et seq., to lease offshore tracts on the Outer Continental

Shelf for oil and gas exploration and development. His deci-

sions are subject to and restricted by the provisions of the

National Environmental Policy Act of 1969 (NEPA), 42

U.S.C. § 4321 et seq.; the Administrative Procedure Act

(APA), 5 U.S.C. §§ 701-706; the Endangered Species Act

(ESA), 16 U.S.C. § 1531 et seq.; and the Coastal Zone

Management Act (CZMA), 16 U.S.C. § 1451 et seq.

7. The Department of the Interior is a part of the execu-

tive branch of the federal government. The Department of

the Interior and its personnel, acting by and through the

Department, are subject to the provisions of the Outer

Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq.;

NEPA, 42 U.S.C. § 4821, et seq.; APA, 5 U.S.C.

$$ 701-706; ESA, 16 U.S.C. § 1531 et seq.; and CZMA, 16

U.S.C. § 1451 et seq.

8. Edward Hastey is the Acting Director of the Bureau

of Land Management, a part of the Department of the Inte-

rior. Until such time as the permanent Director is con-

firmed by the United States Senate, he has the responsibil-

ity to administer leasing on submerged lands on the Outer

Continental Shelf; to evaluate fully the potential effect of a

leasing program on the total environment; to develop any

special leasing stipulations necessary to protect the envi-

ronment and other resources; and to publish proposed and

final notices of sales. (43 C.F.R. Part 3300.)

9. Robert Burford is the Director-Designate of the Bu-

reau of Land Management. If and when he is confirmed by

the Senate for the directorship, he will assume the respon-

sibilities presently vested in Acting Director Hastey as set

forth in the preceding paragraph.

10. The Bureau of Land Management is an agency of the

Department of the Interior, some of whose employees, act-

ing on behalf of the Secretary or the Director, aid them in

the performance of their duties regarding hydrocarbon ac-

tivities on the OCS,

FACTS

11. On November 29, 1977, a Call for Nominations and

Comments was issued by the Bureau of Land Management

(“BLM”). The area under consideration covered 10,742,183

acres on the central and northern California OCS. The Call

requested the petroleum industry to designate specific

tracts on which it would like to bid if a sale were held. Gov-

ernment agencies and other groups were asked to identify

tracts that they believed should be excluded from oil and

gas leasing or leased under more stringent restrictions due

to conflicting resource values or environmental factors.

12. Following the Call for Nominations and Comments,

BLM announced that 27 oil companies had nominated

8,440,116 acres and that 47 comments from federal, state

and local governmental agencies and other groups had been

received indicating general concerns about offshore leasing

or recommending that specific tracts be deleted.

13. Tentative tract selection was announced on October

10, 1978, with 243 tracts to be intensively studied for pro-

posed Lease Sale 53. BLM later established for the final en-

vironmental impact statement that the total sale area

would involve 242 tracts comprising 1.315 million acres.

14. On May 4, 1979, BLM announced its intention to pre-

pare an environmental impact statement to consider the ef-

fects of proposed Lease Sale 53 offshore central and north-

ern California. The Draft Environmental Impact Statement

(DEIS) was issued in April 1980 and examined the pro-

posed development of five basins—Eel River, Bodega,

Point Arena, Santa Cruz and Santa Maria.

15. California State agencies participated in the review

of the DEIS by providing extensive comments on the draft

statement. Among the comments provided by the State and

its agencies were many which pointed out the numerous de-

ficiencies of the DEIS. California also repeatedly requested

the Department to make a consistency determination pur-

suant to the Coastal Zone Management Act (16 U.S.C.

§ 1456) and pointed out the dangers posed by the sale to

threatened and endangered species listed pursuant to the

Endangered Species Act, 16 U.S.C. §§ 1531 et seq.

16. Moreover, during 1979 and 1980 when the 5 year na-

tional oil and gas leasing program was being promulgated

pursuant to 43 U.S.C. § 1344, California filed with the De-

partment extensive comments raising many of the same

15)

concerns as were raised in its comments on the environ-

mental impact statements and Lease Sale 53.

17. The final environmental impact statement (“FEIS”)

on Lease Sale 53, released in September 1980, contained an

Addendum at page xii which presented revised estimates

by the United States Geological Survey of the hydrocarbon

reserves present in the five basins. According to the Ad-

dendum, the new estimates for the Santa Maria Basin were

“roughly twice the amount assumed in the draft and final

EIS analyses.” No supplemental analyses of the potential

environmental effects of oil leasing in the Santa Maria Ba-

sin based upon the new estimates were made or circulated

to the public and government agencies, pursuant to the Na-

tional Environment Policy Act (“NEPA”).

18. On October 16, 1980, former Secretary of the Interi-

or Cecil Andrus announced the proposed notice of sale for

Lease Sale 53. In the proposed notice, the four northern

basins—Eel River, Point Arena, Bodega and Santa

Cruz—were deleted. The only basin proposed for leasing

Was the Santa Maria Basin.

19. On December 24, 1980, Governor Brown submitted

extensive recommendations and comments pursuant to 43

U.S.C. § 1345(c) concerning the lease sale in the Santa Ma-

ria Basin, the only basin remaining in the sale. Among

other matters, the Governor objected to the leasing of the

northern tracts of the Basin because such leasing would

jeopardize the continued survival of the southern sea otter.

20. On February 10, 1981, Secretary of the Interior

James G. Watt, issued a revised proposed notice of sale in

which the four northern basins deleted by former Secretary

Andrus were placed back in the sale. Secretary Watt stated

that he took this action in order to provide an opportunity

for Governor Brown to submit recommendations concerning

the size, timing and location of the sale. The Governor was

allowed 60 days to comment on the proposed notice of sale.

21. On April 9, 1981, the Governor’s recommendations

were hand-delivered to the Office of the Secretary at 12:15

p.m. Submitted was a recommendation 51 pages long as

well as recommendations from State agencies and local gov-

ernments which totalled almost 500 pages. The Governor

also incorporated by reference a series of prior communica-

tions that involved nearly 1000 pages of material.

22. The governor made several specific recommendations

regarding the Santa Maria Basin. He recommended that

leasing proceed in 81 southern tracts in the basin once envi-

ronmental studies were completed and air quality problems

resolved. Regarding the remaining northern tracts, which

stretch offshore from Morro Bay to Point Sal, the Governor

recommended deletion of a total of 34 tracts for several

reasons:

(a) 34 tracts (129-155 and 158-164) were recom-

mended for deletion to protect the Southern sea otter,

a threatened specie, and other marine life such as the

gray whale, seabirds and fisheries;

(b) Thirty-one tracts (129-155 and 158-161) were rec-

ommended for deletion to protect recreation and

tourism in the area;

and 161-164) were recommended for deletion to protect

against geological dangers; and

(d) 14 tracts (129-134, 154, 155, 158-160, and

162-164) were recommended for deletion based on con-

sideration of marine safety and the potential impacts

of tanker accidents. (The tracts were illustrated in

FEIS, visual No. 1.)

The Governor also noted that because the seas are often

high in the northern part of the basin, oil spill containment

would frequently be ineffective. Finally, the Governor rec-

ommended that steps be taken to protect onshore air quali-

ty from the adverse impacts associated with OCS

developments.

23. In a press release issued at 10 a.m. April 10, 1981,

Secretary Watt stated that he intended to lease the entire

Santa Maria Basin in May 1981 based on a finding of an

overriding national interest. The Secretary also announced

that a decision on the remaining four basins would be made

in May or June 1981. The Secretary stated that in balancing

national interest against local interest, the national inter-

est, measured solely in terms of the value of the oil and gas

to be recovered, always would outweigh the well-being of

the citizens of the affected coastal states.

24. On April 27, 1981, the Final Notice of Sale for the

Santa Maria Basin was published by the Secretary and the

Department. (46 Fed. Reg. 23674.) In that notice, the actu-

al sale was scheduled for May 28, 1981. Every tract in the

Santa Maria Basin proposed for leasing in the proposed no-

tice of sale was included in the final notice. Each and every

recommendation of Governor Brown concerning the size,

timing and location of the lease sale was rejected. The Sec-

retary gave no explanation beyond that included in the

press release of April 10 of his reasons for rejecting all of

Governor Brown's recommendations.

25. The northern Santa Maria Basin is habitat of and is

adjacent to habitat of a number of marine mammals, includ-

ing the southern sea otter and the gray whale.

26. The southern sea otter has been listed as a threat-

ened species under the Endangered Species Act of 1973

since January 14, 1977. (50 C.F.R. § 17.11, pp. 63, 79.) The

gray whale has been listed as an endangered species under

the Act and its predecessor, the Endangered Species Con-

servation Act of 1969, since June 2, 1970. (50 C.F.R.

§ 17.11, pp. 65, 79.)

27. The best available estimate of the present size of the

southern sea otter population is 1,443, estimated in 1979.

The figure is a small fraction of its former population size.

According to the Lease Sale 53 FEIS, the present size of

the gray whale population is 15,000,

28. Virtually the entire gray whale population migrates

through the Santa Marin Basin area twice a year. In No-

vember through January, the bulk of the southward migra-

tion occurs. In February through April the bulk of north-

ward migration occurs. The FEIS admits that oil

population may harm or destroy whales through skin expo-

sure, inhalation of oil, and ingestion of oil, both directly and

through contaminated food supplies.

29. The FEIS acknowledges that an oil spill could have a

disastrous effect on the southern sea otter. Its entire popu-

lation is distributed between Pismo Beach and Santa Cruz,

and between the Santa Maria Basin and Santa Cruz Basin,

which the Secretary may offer for lease in June. The otters

are particularly sensitive to oil contact because their fur

acts as their chief insulation from cold water, and contact

with oil destroys the insulating ability of the animals’ fur,

leading to death from exposure. Additional dangers are

posed by ingestion of oil-contaminated food. A large spill

could destroy a major portion of the otter population.

30. The Department and the BLM, pursuant to 16

U.S.C. § 1536(a)(2) and (b), consulted with the Secretary of

Commerce, through the National Marine Fisheries Service,

and with the defendant Secretary himself, through the

United States Fish and Wildlife Service, about the likeli-

hood of Lease Sale 53 jeopardizing, 1) whales and sea tur-

tles and 2) sea otters, respectively. The biological opinions

which were rendered, concluded that leasing and explora-

tion activities were not likely to jeopardize any of these

species although development activities might.

FIRST CLAIM

THE LEASE SALE OF THE 34 NORTHERN TRACTS IN

THE SANTA MARIA BASIN CANNOT BE ALLOWED TO

PROCEED BECAUSE SECRETARY WATT HAS

MISINTERPRETED AND MISAPPLIED SECTION 19 [43

U.S.C. § 1345) OF THE OUTER CONTINENTAL SHELF

LANDS ACT AMENDMENTS OF 1978 (43 U.S.C. § 1331 et

seq.)

31. Plaintiffs incorporate by reference the allegations of

Paragraphs 11 through 24 above with the same force and

effect as if set forth in full herein.

32. In 1978, Congress enacted the Outer Continental

Shelf Lands Act Amendments (“OCSLAA”) as a compre-

hensive revision of the Outer Continental Shelf Lands Act

of 1953. Among the goals of the Congress was that the dis-

cretion of the Secretary of the Interior with regard to OCS

oil and gas leasing be curbed and that the affected coastal

states be given a leading role in OCS decisionmaking.

33. Section 19 of OCSLAA (43 U.S.C. § 1345) is the tool

by which states are to have their leading role in OCS

decisionmaking as to individual lease sales. The section pro-

vides that the governor of an affected state may submit

recommendations on the size, timing and location of a pro-

posed lease sale. Subsection (c) of § 19 further provides

that the Secretary “shall accept recommendations of the

Governor ... if... they provide for a reasonable balance

between the national interest and the well-being of the citi-

zens of the affected State.” “National interest” is defined in

terms of recovering oil and gas in a “balanced manner” and

in terms of the findings, purposes and policies of OCSLAA.

“National interest” therefore means much more than sim-

ply recovering oil and gas.“ National interest” includes the

interest that leasing proceed ina balanced manner, that the

marine, human and coastal resources be preserved, that

competing uses of the sea be preserved, and that recrea-

tional uses of the coast be preserved,

34. In balancing the national interest and the well-being

of the citizens of the affected state, the governor's recom-

mendation is critical. Congress intended this recommenda-

tion to play a leading role in decisions on the size, timing

and location of lease sales. Congress manifested this intent

by directing the acceptance of the governor's balanced

recommendation.

35, Governor Brown submitted detailed, specific recom-

mendations concerning the size, timing and location of leas-

ing in the Santa Maria Basin. These recommendations pro-

vided for a reasonable balance between the national

interest and the well-being of the citizens of California by

recommending that leasing proceed in the 81 southern

tracts and that the 34 northern tracts not be leased. There-

fore, pursuant to § 19, the Secretary was required to ac-

cept Governor Brown’s recommendation.

96. The Secretary has, however, misinterpreted the

OCSLAA and has taken an unbalanced, and unsupported

view of the requirements of § 19. He has determined that

“national interest” means only the recovery of oil and gas

resources and nothing more. This is in direct conflict with

the language of § 19 and the legislative history of the sec-

tion. Moreover, the Seeretary has determined that the

well-being of the citizens of California can never outweigh

the “national interest” and that the national interest is

served only by leasing and exploring for oil. The Secretary

has decided that the states have only parochial interests at

heart, are opposed to all OCS development, and have no de-

cision authority under the OCSLAA.

37. A controversy presently exists between plaintiffs

and defendants concerning the legal rights and duties of the

respective parties concerning § 19 of the OCSLAA. Plain-

tiffs desire a declaration that the Secretary has misinter-

preted the OCSLAA and § 19 and that because of his erro-

neous interpretation of the law, the Secretary has

improperly performed the balancing required under § 19

and has illegally rejected the recommendations of Governor

Brown.

SECOND CLAIM

BECAUSE SECRETARY WATT’S DECISION REJECTING

GOVERNOR BROWN’S RECOMMENDATION WAS

ARBITRARY, CAPRICIOUS AND AN ABUSE OF

DISCRETION AND IT MUST BE REVERSED AND THE

SALE OF THE 34 NORTHERN TRACTS CANNOT BE

ALLOWED TO PROCEED

38. Plaintiffs incorporate by reference the allegations set

forth in Paragraphs J1 through 24 above with the same

force and effect as if set forth in full herein.

39. The Secretary is required to give the Governor's rec-

ommendation full and careful consideration. Governor

Brown's recommendation was 51 pages long and incorpora-

ted by reference many other California comments nearly

1000 pages long. Accompanying the Governor’s recommen-

dation were nearly 500 pages of state agency and local gov-

ernment comments and recommendations. The Secretary

rejected all of this material after it had been in the posses-

sion of the Department less than 22 hours. This unseemly

haste in rejecting these recommendations was clearly arbi-

trary and capricious.

40. Secretary Watt's rejection of Governor Brown’s rec-

ommendation was also arbitrary, capricious and an abuse of

discretion because the Governor's recommendation struck

the appropriate balance between the national interest and

the well-being of the citizens of California. Instead of giving

these balanced recommendations the great weight intended

by Congress, the Secretary gave them no weight at all. In-

stead of considering all the relevant factors, the Secretary

considered only his belief that all resources must be

recovered.

41. Unless the lease sale of the 34 northern tracts

planned for May 28, 1981, is enjoined, plaintiffs will be ir-

reparably injured. Section 19 provides that primary tool for

the involvement of the coastal states in the OCS leasing

process. The opportunity to make recommendations on a

lease sale decision which the Secretary must accept occurs

only once, and if the sale of these 34 tracts proceeds, the

impact of Governor Brown's recommendation will be irre-

trievably lost. Moreover, if the lease of the 34 tracts is al-

lowed to proceed, there will be an irretrievable and irre-

versible commitment of resources.

2. Plaintiffs have no speedy, adequate or complete rem-

edy at law to address the wrong herein alleged, and this ac-

tion for injunction and other relief is plaintiffs’ only means

of securing relief.

43. An immediate enjoining of leasing of tracts 129-155

and 158-164 in the Santa Maria Basin until defendants have

complied with applicable provision of federal law is the only

means of preserving the status quo.

THIRD CLAIM

THE LEASING OF THE NORTHERN 34 TRACTS IN THE

SANTA MARIA BASIN SHOULD NOT BE ALLOWED TO

PROCEED UNTIL THE FINAL NOTICE OF SALE

HAS BEEN RENDERED CONSISTENT WITH

CALIFORNIA’S FEDERALLY APPROVED

COASTAL MANAGEMENT PLAN

44. The Coastal Zone Management Act (16 U.S.C.

§ 1451 et seq.) was designed by Congress to encourage

States to develop comprehensive management programs for

their coastal zones. A central part of this design was the

promise that federal activities which impacted on a State’s

coast would have to be conducted in a manner consistent

with the State’s approved coastal management plan. (16

U.S.C. § 1456.) Congress intended such consistency to ex-

tend to energy facility siting and the final notice of sale for

offshore oil leases.

45. Pursuant to 16 U.S.C. § 1456, federal agencies which

conduct activities “directly affecting” the coastal zone shall

conduct those activities to the maximum extent practicable

in a manner consistent with a State’s approved manage-

ment program. The agency charged with implementing

§ 1456, the National Oceanic and Atmospheric Administra-

tion (“NOAA”) has promulgated regulations to the effect

that federal activities on the OCS are subject to review to

determine whether they directly affect the coastal zone. (15

C.F.R. § 930.33(c); 44 Fed. Reg. 37146.)

46. California’s Coastal Zone Management Plan was ap-

proved by the Department of Commerce on November 7,

1977.

47. The Department of Interior has consistently rejected

NOAA's position and has argued that the only activities di-

rectly affecting the coastal zone are those doing so “without

intervening cause.”

48. In 1979, the Department of Justice issued an opinion

concluding that pre-leasing activities of the Secretary of the

Interior were subject to the consistency requirements of

the Coastal Zone Management Act.

49. Throughout the administrative procedures leading to

federal oil and gas lease sales offshore of California, the

Coastal Commission has regularly sought to have the De-

partment of Interior conduct a consistency review for the

final notice of sale of OCS leasing activities. The Depart-

ment of Interior refused to apply consistency review to the

final notice of sale for Lease Sale 48 (Southern California)

and continued to assert that, with the exception of a very

restricted category of lease stipulations, prelease activities

in general and the final notice of sale in particular do not di-

rectly affect the coastal zone.

50. The Coastal Commission sought mediation following

the Department's refusal to apply consistency to Lease Sale

48. Although the mediator concluded that the mediation

had failed because of the Department's refusal to alter its

position on the meaning of “directly affect,” he did adopt

California’s position that the Department had adopted an

unduly restrictive definition of “directly affect” and that

the Coastal Zone Management Act contemplated a consist-

ency determination regarding pre-lease sale activities.

51. Throughout the administrative process which has

culminated in the Santa Maria Basin Lease Sale, the Coast-

al Commission has sought a consistency determination re-

garding the final notice of sale. The Secretary of the Interi-

or has steadfastly refused to do so and instead has sought

to convince the Secretary of Commerce to have NOAA al-

ter its regulations.

52. The Coastal Commission, has long argued, and has so

argued regarding this sale, that of the various pre-lease

sale activities, only the final tract selection and lease stipu-

lations, i.e. the final notice of sale, do directly affect the

California coastal zone. The decision to offer leases for spe-

cific tracts is the key activity that creates a right to develop

those leases. The lease sale sets the initial boundaries on oil

development on the OCS and is a subdivision of the OCS.

The decision to lease is also a key planning point for both

coastal States and the petroleum industry. The decision to

lease basically determines which areas will bear the burden

of oil and gas development—burdens such as oil spills, ves-

sel collisions, harm to recreation and tourism, and in-

creased onshore industrialization.

53. The Coastal Commission has informed the Depart-

ment that the deletion of 31 tracts in the northern portion

of the Santa Maria Basin is necessary for the leasing of the

basin to be consistent with the California Coastal Manage-

ment Plan.

54. The Department of Interior’s refusal to conduct a

consistency determination despite the direct impacts on the

coastal zone of the final notice of sale is therefore a clear vi-

olation of the Coastal Zone Management Act.

55. A controversy presently exists between plaintiffs

and defendants concerning the legal rights and duties im-

posed by the CZMA, 16 U.S.C. § 1456. Plaintiffs desire a

declaration that the final notice of sale (tract selection and

lease stipulations) directly affects the coastal zone and re-

quires a consistency determination. Plaintiffs further desire

that defendants be ordered to conduct said consistency de-

termination and to comply with all applicable procedures

attendant on said determination.

56. Plaintiffs request the Court to retain jurisdiction of

this matter until the consistency determination has been

made and the Coastal Commission concurs in the determi-

nation. Moreover, the Department should not be allowed to

proceed with the proposed activity until 90 days after the

consistency statement is prepared. (15 C.F.R. § 930.41(c).)

57. Unless the lease sale of the 34 northern tracts is en-

joined, plaintiffs will be irreparably injured in that a feder-

al activity directly affecting the coastal zone will have oc-

curred without the requisite consistency determination and

without the following of applicable procedures. Also, con-

ducting the lease sale as to these tracts would cause an ir-

retrievable and irreversible commitment of resources.

58. Plaintiffs have no speedy, adequate or complete rem-

edy at law to address the wrong herein alleged and this ac-

tion for injunctive and other relief is plaintiffs’ only means

of securing relief.

59. An immediate enjoining of the planned lease sale as

to the northern 34 tracts is necessary to retain the status

quo until defendants have complied with applicable federal

law.

FOURTH CLAIM

DEFENDANTS VIOLATED THE NATIONAL

ENVIRONMENTAL POLICY ACT

60. Section 102(C) of NEPA, 42 U.S.C. § 4332(C), and

the regulations of the Council of Environmental Quality

thereunder, 40 C.F.R. Part 1500 (“CEQ Regulations”), re-

quire a detailed examination of the potential environmental

impacts of any major federal action, based on the best

available data, to be prepared and circulated to the public

and government agencies and officials for their information

comment.

61. The CEQ Regulations specifically require that feder-

al agencies must prepare supplements to EIS’s if there are

significant new circumstances or information bearing on a

proposed action or its impacts. 40 C.F.R. § 1502.9(¢)(1)(ii).

Such a supplement must be prepared, circulated, and filed

in the same manner as a draft and final statement. 40

C.F.R. § 1502.9(¢)(4).

62. The revised estimates of the United States Geologic-

al Survey (“USGS”) doubling the expected oil reserves of

the Santa Maria Basin constitute significant new informa-

tion bearing upon the proposed lease sale and its impacts.

The greatest risk to the marine and coastal environments

from offshore oil development is that of oil spills. The de-

gree of risk of oil spills is directly related to the amount of

oil present in an offshore basin.

63. The failure of the defendants to prepare and circulate

a supplemental EIS on the potential impacts of hydrocar-

bon development in the Santa Maria Basin based upon the

USGS’s current estimates of reserves violated the require-

ments of NEPA and the CEQ Regulations. The public and

government officials have been denied the right to examine

and criticize the proposed action with regard to the Santa

Maria Basin in light of an assessment of risks based upon

the best available data.

64. Further, because the impacts predicted in the EIS

were based on the outdated lower estimates, adequate miti-

gation measures for the likely impacts of oil development in

the Santa Maria Basin were never explored nor submitted

to the public as required by 40 C.F.R. § 1502.16(h) of the

CEQ Regulations.

65. Unless the lease sale for the northern 34 Santa Maria

Basin tracts planned for May 28, 1981, is enjoined by this

Court, defendants will take this action, with profound po-

tential effects on the environment, without compliance with

the requirements of NEPA and the CEQ regulations. Un-

less this action is declared unlawful and the defendants are

so enjoined, plaintiffs and their members will suffer sub-

stantial and irreparable harm. They have no adequate rem-

edy at law.

66. An immediate injunction prohibiting leasing of tracts

129-155 and 158-164 in the Santa Maria Basin until defend-

ants have adequately supplemented their EIS is the only

means of preserving the status quo.

FIFTH CLAIM

DEFENDANT VIOLATED THE ENDANGERED SPECIES

ACT BY THEIR FAILURE TO SECURE ADEQUATE

BIOLOGICAL OPINIONS

67. Section 7(aX2) of the Endangered Species Act, 16

U.S.C. § 1536(aX2), provides, in pertinent part:

Each Federal agency shall, in consultation with and

with the assistance of the Secretary, insure that any

action authorized, funded, or carried out by such agen-

cy ... is not likely to jeopardize the continued exist-

ence of any endangered species or threatened species

or threatened species.... In fulfilling the require-

ments of this paragraph each agency shall use the best

scientific and commercial data available.

68. Section 7(d) of the Endangered Species Act, 16

U.S.C. 1536(d), provides, in pertinent part:

After initiation of consultation ..., the Federal agency

and the permit or license applicant shall not make any

irreversible or irretrievable commitment of resources

with respect to the agency action which would have

the effect of foreclosing the formulation or implemen-

tation of any reasonable or prudent alternative meas-

ures which would avoid jeopardizing the continued ex-

istence of any endangered or threatened species....

69. Neither biological opinion prepared for Lease Sale 53

was based upon an analysis of the revised estimates of the

USGS of August 1980 which doubled the amount of oil

thought to be present in the Santa Maria Basin. While the

Fish and Wildlife Service acknowledged the existence of

these new estimates, it used the EIS’s risk estimates de-

rived from the outdated figures in its opinion. As 16 U.S.C.

§ 1536(a)(2) requires the agency causing the biological opin-

ion to be prepared to use the best scientific data available,

consultation should have been reopened and new opinions

sought upon the emergency of the new USGS figures. This

has not been done and defendants have thus violated their

responsibilities under § 1536(b) to obtain adequate biologi-

cal opinions so as to be able to meet their obligations under

§ 1536(a)(2) to insure that the lease sale is not likely to

jeopardize the southern sea otter, the gray whale, or other

threatened or endangered species.

70. Pending completion of the new consultation required

under 16 U.S.C. § 1536(a) and (b), defendants are forbid-

den under 16 U.S.C. § 1536(d) to make any irreversible or

irretrievable commitment of resources which would fore-

close the formulation or implementation of reasonable or

prudent mitigation measures to avoid jeopardizing a threat-

ened or endangered species. Sale of leases in the northern

Santa Maria tracts and the ensuing pre-exploration and

exploitation activities would amount to such a commitment,

in violation of § 1536(d).

71. Unless the lease sale for the northern 34 Santa Maria

Basin tracts is declared unlawful and enjoined by this

Court, plaintiffs and their members will suffer substantial

and irreparable harm. They have no adequate remedy at

law.

An immediate injunction prohibiting leasing of tracts

129-155 and 158-164 in the Santa Maria Basin until defend-

ants have secured adequate biological opinions is the only

means of preserving the status quo.

SIXTH CLAIM

THE LEASE SALE WILL RESULT IN AN ILLEGAL

TAKING UNDER THE ENDANGERED SPECIES ACT AND

THE MARINE MAMMAL PROTECTION ACT

73. 16 U.S.C. § 1538 of the Endangered Species Act

makes it:

“unlawful for any person... to.

(B) take any[endangered] species within the United

States or the territorial sea of the United States... .”

16 U.S.C. § 1532(13) of the act defines person to include

“any officer, employee, agent, department or instrumental-

ity of the Federal Government, [or] of any State or political

subdivision thereof.” 16 U.S.C. § 1532(1) defines the term

“take” to mean “harass” or “harm.”

74. The National Marine Fisheries Service, which en-

forces the application of the Act to whales, has promul-

gated regulations pursuant to the Act similarly providing

that no person shall take any endangered species without a

permit, 50 C.F.R. 222.21, and defining “take” and “person”

in the same terms as the Act, 50 C.F.R. 217.12. While

NMFS has not defined “harass” in a regulation, it has is-

sued a “Notice of Interpretation” applying the term to the

humpback whale in the Hawaiian Islands which includes in-

ter alia, flying less than 1000 feet over a whale, bringing a

vessel within 300 yards of the whale, or committing “any

other act or omission that substantially disrupts the normal

behavioral pattern” of the whale. 44 Fed. Reg. 1113-1114.

75. The Fish and Wildlife Service, which also has en-

forcement responsibilities under the Act, has defined “har-

ass” to mean (50 C.F.R. 17.3):

“an intentional or negligent act or omission which cre-

ates the likelihood of injury to wildlife by annoying it

to such an extent as to significantly disrupt normal

behavioral patterns which include, but are not limited

to breeding, feeding or sheltering.”

Finally, the FWS has defined “harm” to mean (5id. ):

“an act or omission which actually injures or kills

wildlife, including acts which annoy it to such an ex-

tent as to significantly disrupt essential behavioral

patterns, which include, but are not limited to, breed-

ing, feeding or sheltering; significant environmental

modification or degradation which has such effect is in-

cluded within the meaning of harm.”

76. The Marine Mammal Protection Act, 16 U.S.C.

1361(2), (6), provides that efforts shall be made to “protect

the rookeries, mating grounds, and areas of similar signifi-

cance for each species of marine animal trom the adverse

effects of man’s actions” and that “the primary objective of

their management should be to maintain the health and sta-

bility of the marine ecosystem.” 1372(a)(2)(A) further pro-

vides that it is generally unlawful:

“for any person or vessel or other conveyance to take

any marine mammal in waters or on lands under the

jurisdiction of the United States...”

77. The regulations of the Fish and Wildlife Service, pro-

mulgated pursuant to the Marine Mammal Protection Act,

generally provide that it is unlawful for any “person” to

“take” any marine mammal on the high seas or on lands un-

der the jurisdiction of the United States. 50 C.F.R.

§ 18.11. “Marine mammal” is defined to include sea otters.

50 C.F.R. § 18.3. They similarly define “take” as “to har-

ass, hunt, capture, collect, or kill, or attempt to harass,

hunt capture, collect, or kill any marine mammal...” /bid.

The National Marine Fisheries Service regulations imple-

menting the Marine Mammal Protection Act also prohibit

the taking of any marine mammal on the high seas or on

lands under jurisdiction of the United States, 50 C.F.R.

216.11, including whales, porpoises, seals and sea lions, 50

C.F.R. 216.3. They define “take” in the same manner as

the Fish and Wildlife Service Regulations. The Act further

provides “efforts should be made to protect the rookeries,

mating grounds and areas of similar significance for each

species of marine mammal from the adverse effect of man’s

actons,” 16 U.S.C. 1361(2) and that “the primary objective

of their management should be to maintain the health and

stability of the marine ecosystem,” 16 U.S.C. 1361(6).

78. The FEIS admits that small oil spills, major oil spills,

noise, vessel traffic, and other activities associated with

offshore leasing, exploration, and development would cause

significant harm to sea otters and perhaps to gray whales

and other cetaceans. The FEIS predicts 2.29 major spills

and 163 minor spills during the production phase of the

sale, with over 75 percent of these originating in the Santa

Maria Basin. A large spill would have the potential to de-

stroy one third of the sea otter population. Consequently,

the proposed sale will result in the harassing, harming, and

taking of wildlife protected by the Endangered Species Act

and the Marine Mammal Protection Act in violation of those

statutes and of the regulations implementing them.

79. Unless the lease sale for the northern 34 Santa Maria

Basin tracts is declared unlawful and enjoined by this

Court, plaintiffs and their members will suffer substantial

and irreparable harm. They have no adequate remedy at

law.

80. An immediate injunction prohibiting leasing of tracts

129-155 and 158-164 in the Santa Maria Basin and an

ensuing taking of threatened and endangered species in vio-

lation of the Endangered Species Act is the only means of

preserving the status quo.

RELIEF

WHEREFORE, plaintiffs pray:

1. With regard to § 19 of the OCSLAA:

(a) For a judgment declaring the Secretary's inter-

pretation of § 19 of the OCSLAA to be erroneous and

in violation of the OCSLAA and the Administrative

Procedure Act; and

U.S.

(b) For an order and judgment declaring that the

Secretary's rejection of Governor Brown's recommen-

dation both violated § 19 of OCSLAA and was arbitra-

ry, capricious and an abuse of discretion; and

both preliminarily and permanently from leasing the

northern 34 tracts of the Santa Maria Basin, presently

scheduled for May 28, 1981.

. With regard to the Coastal Zone Management Act, 16

.C, § 1456:

(a) For a judgment declaring that the final notice of

sale (tracts selection and lease stipulations) directly af-

fects the coastal zone and that the defendants have vi-

olated CZMA by refusing to conduct said leasing of the

34 northern tracts in the Santa Maria Basin in a man-

ner consistent with California's Coastal Management

Plan;

(b) For an order and judgment preliminarily and

permanently enjoining the leasing of the 34 northern

tracts of the Santa Maria Basin by defendants until

such consistency determination has been conducted

and there has been compliance with all attendant pro-

cedures; and

compelling defendants to conduct said consistency

review.

. With regard to the National Environmental Policy

Act:

(a) For a judgment declaring the failure to prepare

and circulate a supplement to the environmental im-

pact statement based upon current estimates of oil re-

serves in the Santa Maria Basin to be a violation of

NEPA and the CEQ Regulations thereunder; and

(b) For an order and judgment enjoining defendants

both preliminary and permanently from leasing the

northern 34 tracts of the Santa Maria Basin until they

have prepared an adequate EIS supplement.

With regard to the Endangered Species Act, 16

C. § 1536 et seq.:

(a) For judgment declaring the biological opinions

upon which the Secretary based his finding of no likeli-

hood of jeopardy to threatened or endangered species

to be an inadequate basis for such finding for lack of

consideration of the best available scientific data;

(b) For an order and judgment enjoining defendants

both preliminarily and permanently from leasing the

northern 34 tracts of the Santa Maria Basin until ade-

quate biological opinions are prepared and the Secre-

tary has properly considered those opinions as re-

quired by law; and

compelling defendants to cause such biological opinions

to be prepared.

5, With regard to the Endangered Species Act and the

Marine Mammal Protection Act, 16 U.S.C. §§ 1361 et seq.:

(a) For a judgment declaring that the sale of leases

for the northern 34 tracts of the Santa Maria Basin

scheduled for May 28, 1981, would constitute an illegal

taking of threatened and endangered wildlife; and

(b) For an order and judgment enjoining defendants

both preliminarily and permanently from leasing the

northern 34 tracts.

6. For costs of suit herein.

7. For such other and further relief as the Court may

deem just and proper.

Dated: APRIL 29, 1981

GEORGE DEUKMEJIAN,

Attorney General

N, GREGORY TAYLOR

Assistant Attorney General

THEODORA BERGER,

JOHN A, SAURENMAN

Deputy Attorneys General

By Theodora Berger

THEODORA BERGER

Deputy Attorney General

JA. Saurenman

JOHN A, SAURENMAN

Deputy Attorney General

Attorneys tov Placntitts

LU: HM:dlh cc: Marcuse(2)

Hull

Retrieval

File

Lands

Mr. C. L. Haslam

General Counsel

Department of Commerce

Fourteenth Street Between Constitution

Avenue & E Street, N.W.

Washington, D.C. 20230

Mr. Leo M. Krulitz

Solicitor

Department of Interior

C Street Between Eighteenth &

Nineteenth Streets, N.W.

Washington, D.C. 20240

Dear Sirs:

I am responding to the letter dated March 23, 1979, ad-

dressed to Assistant Attorney General Harmon from the

Acting General Counsel of the Department of Commerce

and the Deputy Solicitor of the Department of the Interior

requesting the opinion of the Department of Justice on the

question whether the pre-leasing activities of the Secretary

of the Interior relating to the Outer Continental Shelf are

subject to the consistency requirement of § 307(c)(1) of the

Coastal Zone Management Act, 86 Stat. 1285, 16 U.S.C.

§ 1456(c)(1). Section 307(c)(1) provides:

Each Federal agency conducting or supporting activi-

ties directly affecting the coastal zone shall conduct or

support those activities in a manner which is, to the

' According to the papers submitted to us, the pre-leasing activities

of the Secretary of the Interior include steps such as: calls for nomina-

tions (ascertainment of tracts which the industry would like to see of-

fered for lease, and which other parties believe should not be leased);

tract selection; the various steps involved in the preparation of an En-

vironmental Impact Statement; consultation with the Governors; indi-

vidual tract selection.

maximum extent practicable, consistent with approved

state management programs.

Mr. Hamon has asked me to respond.

The Department of the Interior takes the position that

its pre-leasing activities relating to the Outer Continental

Shelf Lands do not directly affect the Coastal Zone, and

that, in any event, the applicability, if any, of § 307(¢)(1) to

those activities has been abrogated by the Coastal Zone

Management Act Amendments of 1976 and the Outer Con-

tinental Shelf Land Act Amendments of 1978. The Depart-

ment of Commerce disagrees with both positions. In its

view the statutory language “directly affecting the coastal

zone” must be read as “significantly affecting the coastal

zone”, and the significance of the activities in question must

be considered in terms of “primary, secondary, and cumula-

tive effects” on the Coastal Zone. It also asserts that the

two amendatory acts have no bearing on the scope of

§ 307(c)(1).

We have examined the materials submitted with the re-

quest as well as the complex pertinent legislative histories

to the extent possible within your time limitations. We con-

clude (1) that neither the Coastal Zone Management Act

Amendments of 1976 nor the Outer Continental Shelf

Lands Act Amendments of 1978 affect the application of

§ 307(c)(1) to Outer Continental Shelf Land pre-leasing ac-

tivities, (2) that § 307(c)(1) applies only to activities direct-

ly affecting the Coastal Zone, and (3) finally that this De-

partment is not authorized to resolve the essentially factual

question whether and to what extent any of the pre-leasing

activities of the Department of the Interior under the Out-

er Continental Shelf Lands Act directly affect the Coastal

Zone.

The Coastal Zone Management Act, 16 U.S.C. § 1451 et

seq., is primarily concerned with the effective manage-

ment, beneficial use, production, and development of the

Coastal Zone. Section 302(a), 16 U.S.C. § 145l(a). The

Coastal Zone extends seaward to the outer limit of the

United States territorial sea, inland to the shore line and to

a limited extent to the adjacent shore lands. Section 304(1),

16 U.S.C. § 1453(1).2 The Act is administered by the Sec-

retary of Commerce. Section 304(15), 16 U.S.C. § 1453(15).

For purposes pertinent here the Act provides for the devel-

opment and administration by the States of state manage-

ment programs for the Coastal Zone. Those programs re-

quire the approval of the Secretary of Commerce. Sections

305, 306, 16 U.S.C. §§ 1454, 1455,

The Outer Continental Shelf Lands Act of 1953, as

amended, provides that the Secretary of the Interior shall

administer the federal program of oil and gas leasing on the

Outer Continental Shelf. Sections 5 and 6, 43 U.S.C.

§§ 1334, 1335. The Outer Continental Shelf consists gener-

ally of the submerged lands lying seaward of the Coastal!

Zone of which the subsoil and seabed appertain to the

United States and are subject to its jurisdiction and con-

trol. Section 2(a), 43 U.S.C. § 1331(a).

The basic dispute underlying your inquiry is whether and

to what extent the pre-leasing activities of the Secretary of

the Interior under the Outer Continental Shelf Lands Act

are subject to the provisions of § 307(c)(1) of the Coastal

Zone Management Act.

A. The Coastal Zone Management Act Amendments of 1976.

Section 6 of the Coastal Zone Management Act Amend-

ments of 1976 added to § 307(c)(3) a new paragraph (b).®

1978, 43 U.S.C. (Supp.) § 1331(e) uses the same definition.

3 Section 307(c)3B), as amended by the Outer Continental Shelf

Lands Act Amendment of 1978 § 504 provides:

(B) After the management program of any coastal state has been

approved by the Secretary under section 1455 of this title, any

person who submits to the Secretary of the Interior any plan for

the exploration or development of, or production from, any area

which has been leased under the Outer Continental Shelf Lands

Act (43 U.G.C. 1331 et seq.) and regulations under such Act

shall, with respect to any exploration, development, or produc-

tion described in such plan and affecting any land use or water

use in the coastal zone of such state, attach to such plan a certifi-

cation that each activity which is described in detail in such plan

complies with such state's approved management program and

The Department of the Interior contends that this para-

graph is intended to constitute the exclusive method by

which, and the only stage at which, the consistency of all

aspects of the Outer Continental Shelf Lands leasing proc-

ess—including pre-leasing activities—with the state man-

agement programs is to be determined and that the new

paragraph pro tanto supersedes the consistency require-

will be carried out in a manner consistent with such program. Ni

Federal official or agency shall grant such person any license or

permit for any activity described in detail in such plan until such

state or its designated agency receives a copy of such certifica-

tion and plan, together with any other necessary data and infor-

mation, and until—

(i) such state or its designated agency, in accordance with the

procedures required to be established by such state pursuant to

subparagraph (A), concurs with such person's certification and

notifies the Secretary and the Secretary of the Interior of such

concurrence;

(ii) concurrence by such state with such certification is conclu-

sively presumed as provided for in subparagraph (A), except if

such state fails to concur with or object to such certification with-

in three months after receipt of its copy of such certification and

supporting .nformation, such state shal! provide the Secretary,

the appropriate federal agency, and such person with a written

statement describing the status of review and the basis for fur-

ther delay in issuing a final decision, and if such statement is not

so provided, concurrence by such state with such certification

shall be conclusively presumed; or

(iii) the Secretary finds, pursuant to subparagraph (A), that

each activity which is described in detail in such plan is consist-

ent with the objectives of this chapter or is otherwise necessary

in the interest of national security. If a state concurs or is conclu-

sively presumed to concur, or if the Secretary makes such a find-

ing, the provisions of subparagraph (A) are not applicable with

respect to such person, such state, and any Federal license or

permit which is requived to conduct any activity affecting land

uses or water uses in the coastal zone of such state which is de-

scribed in detail in the plan to which such concurrence or finding

applies. If such state objects to such certification and if the Sec-

retary fails to make a finding under clause (iii) with respect to

such certification, or if such person fails substantially to comply

with such plan as submitted, such person shall submit ar amend-

ment to such plan, or a new plan, to the Secretary of the Interi-

or. With respect to any amendment or new plan submitted to the

Secretary of the Interior pursuant to the preceding sentence, the

applicable time period for purposes of concurrence by conclusive

presumption under subparagraph (A) is 3 months.

ment of § 307(¢)(1). We cannot concur in that interpretation

of the 1976 Amendment.

The enactment of § 307(¢)(3)(B) originated from a dispute

between the Department of the Interior and the Depart-

ment of Commerce concerning the proper interpretation of

§ 307(¢)(3), now § 307(c(3\A).4 That paragraph provides

for the purposes relevant here that, after a state's manage-

ment program has been approved by the Secretary of Com-

merce, an applicant for a Federal permit or license for an

activity affecting the Coastal Zone must include in the ap-

plication a certification that the proposed activity complies

with the state’s program, and that the activity will be con-

ducted in accord with that program.5 The Department of

* Section 307(¢)(3)(A) provides:

(3A) After final approval by the Secretary of a state's manage-

ment program, any applicant for a required Federal license or

permit to conduct an activity affecting land or water uses in the

coastal zone of that state shall provide in the application to the

licensing or permitting # -ncy a certification that the proposed

activity complies with the state's approved program and that

such activity will be conducted in a manner consistent with the

program. At the same time, the applicant shall furnish to the

State or its designated agency a copy of the certification, with al!

necessary information and data. Each coastal state shal] establish

procedures for public notice in the case of all such certifications

and, to the extent it deems appropriate, procedures for public

hearings in connection therewith. At the earliest practicable

time, the state or its designated agency shall notify the Federal!

agency concerned that the state concurs with or objects to the

applicant's certification. If the state or its designated agency

fails to furnish the required notification within six months after

receipt of its copy of the applicant's certification, the state’s con-

currence with the certification shall be conclusively presumed.

No license or permit shall be granted by the Federal agency until

the state or its designated agency has concurred with the appli-

cant’s certification or until, by the state's failure to act, the con-

currence is conclusively presumed, unless the Secretary, on his

own initiative or upon appeal by the applicant, finds, after pro-

viding a reasonable opportunity for detailed comments from the

Federal agency involved and from the state, that the activity is

consistent with the objectives of this chapter or is otherwise nec-

essary in the interest of national security.

* The state concurrence in the certification is presumed if it fails to

object within six months after receipt of a copy of the applicants’ certi-

fication. The permit or license may not issue unless the State concurs

in the certification or is presumed to have concurred, or unless the

the Interior contended that leases in the Outer Continental

Shelf did not come within the purview of the provision; the

Department of Commerce took the opposite position.

The dispute came to the attention of Congress during its

consideration of the Coastal Zone Act Amendments of 1976.

Both legislative committees concluded that § 307(c¢)(3) is in-

tended, and indeed always was intended to cover leases,

and reported out bills amending § 307(¢)(3) by adding the

word “lease” to the words “license or permit” already in-

cluded in the paragraph. S. Rept. $4-277, pp. 19, 36-37, 53,

59; H. Rept. 94-878, pp. 4, 52, 67-68, 48.

The Senate agreed with the committee report. The bill

passed by it amended § 307(c)(3) to include the word

“lease”. 121 Cong. Rec. 23050, 23086. When the bill

reached the floor of the House it contained the same provi-

sion. 122 Cong. Rec. 6124. The amendment of § 307(c)(3),

however, was stricken on motion of Congressman duPont,

because he felt, on the basis of testimony received from the

Administration and the industry, that more time was

needed to evaluate the full irnpact of the proposed amend-

ment. He continued:

“By striking it in the House bill and leaving it in the

bill that has already passed the Senate we will be giv-

ing ourselves a little bit of flexibility in the conference

to either adopt the language as the Senate put it in or

adopt some other language we feel would be more ben-

eficial and at the same time protect the rights of the

States.

So the purpose of this amendment is not to get rid of

the word “lease” but to allow us time to work on the

problem a little bit longer.” 122 Cong. Rec. 6128.

Congressman Murphy, who was in charge of the legisla-

tion in the House, accepted the amendment, pointing out

that even if an applicant were granted a lease the statute

required permits and licenses to be subject to the consist-

Secretary of Commerce finds that the activity is consistent with the

objectives of the Act or otherwise necessary in the interest of national

security.

* See also the explanation of the provision by Senator Hollings who

was in charge of the legislation. 121 Cong. Rec. 23053.

ency requirement of § 307(c)(3). Ibid. This observation ap-

pears to have been related to the position taken by the De-

partment of the Interior warning of the interminable delays

that would result if every lease and every related permit

and license was to be subject to the procedures of

§ 307(c)(3), a matter that could bring about repeated delays

of six months. See the letter from Secretary Kleppe of the

Department of the Interior to the Director, Office of Man-

agement and Budget, dated May 24, 1976.

The conference report adopted by both Houses provided

that § 307(c)(3) should be split up. The original paragraph

became § 307(c)(3)(A), and the committee added a new par-

agraph (B). See, supra, fn. 3. The import of the new para-

graph is that an individual or organization submitting to the

Secretary of Interior a plan for the exploration, develop-

ment of, or production from, an area leased under the Con-

tinental Shelf Lands Act, must submit a certification simi-

lar to the one required under paragraph (A). If the State

agrees to the certification or does not object within six

months, or if the Secretary of Commerce makes a finding of

consistency, subsequent requests for permits or licenses re-

quired for activities described in detail in such plan will not

have to go through the conformity procedures provided for

in paragraph (A).

The Conference Report contains the following explana-

tion of the amendment:

Also, under the substitute, any subsequent OCS [Out-

er Continental Shelf] Federal license or permit re-

quired for activities specified in any exploration, de-

velopment, and production plan are presumed to be

consistent once the plan is certified as being so consist-

ent. This important change will significantly expedite

OCS oil and gas development. Under present Depart-

ment of Interior regulations, Federal permits are re-

quired for a large number of individual activities in-

cluding geophysical exploration or production, pipeline

right-of-way, structure placement, waste discharge,

and dredging and filling operations. Thus, separate

consistency determinations on each activity, described

in detail in an exploration, development or prouction

plan, will not be necessary. H. Rept. 94-1298, pp.

30-31.

The explanation of the Conference Report on the floor of

the Senate by Senator Hollings contained the following per-

tinent observation:

Third, a new incentive for expediting determination of

whether particular off-shore energy activity is consist-

ent with a coastal State’s approved management pro-

gram, on an overall plan basis rather than on an indi-

vidual license/permit by license permit basis; * * *.

122 Cong. Rec. 21230.

The amendment was thus designed to overcome the diffi-

culties adverted to by Secretary Kleppe, namely, that a

new conformity review under § 307(c)(3), involving a six-

month delay, would be required every time the lessee of

Outer Continental Shelf Lands had to apply for a new li-

cense or permit.

The Department of the Interior appears to believe that

paragraph (B) embodies an exclusive provision concerning

the consistency requirement of the Outer Continental Shelf

Lands leasing process with Coastal Zone state management

plans and that it therefore supersedes § 307(c)(1) with re-

spect to the entire process, including the preleasing stage.

It thus relies on the doctrine of repeal by implication. The

Supreme Court, however, has consistently applied the rule

that repeals by implication are not favored; that the inten-

tion of the legislation to repeal must be clear and manifest;

that every attempt must be made to reconcile the statutes

involved; and that a repeal by implication will be found only

where there is a “positive repugnancy” between the stat-

utes in question. Morton v. Mancari, 417 U.S. 535, 549-551

(1974); Borden v. United States 308 U.S. 188, 198-199

(1939).

In our view the relationship between §307(c)(1) and

307(c\(3)(B) does not meet these rigorous standards, at

least not for the pre-leasing period.’ The two provisions can

7 We need not examine the question, not presented by your inquiry,

whether once a plan for the exploration, or development, or production

envisaged by § 307(c\3)(B) has been filed, that paragraph becomes the

readily coexist during that period and there is no “positive

repugnancy”. There is nothing explicit or implied in the

1976 Amendments to the effect that the procedure set forth

in § 307(c)(3)(B) provides the only consistency requirement

for the entire Outer Continental Shelf Land leasing proc-

ess. Paragraph (B) is designed to relieve the lessee of the

burdens and delays resulting from successive consistency

determinations for the many license and permit applications

that may follow the grant of a lease and the approval of an

exploration, development, or production plan. Under

§ 307(c)(3)(B) there will be a single consistency review fol-

lowing the submission of the plan by the lessee, and that

review will cover any future activities described in detail in

the plan. Section 307(c)(3)(B) thus simplifies the regulatory

process during the post-leasing period. It has no bearing on

the consistency requirements antedating that stage of the

leasing process. It is well possible that some of the pre-

leasing activities of the Secretary of the Interior will give

rise to consistency problems which cannot be reviewed at

all under the paragraph (B) procedure, or for which such

review comes too late. It is our opinion that with respect to

pre-leasing activities § 307(c)(1) and § 307(c)(3)(B) can both

be given effect and accordingly that the enactment of

§ 307(c)(3)(B) does not disclose any clear and manifest leg-

islative intent to supersede, and does not supersede, the

applicability of § 307(c)(1) to those pre-leasing activities of

the Secretary of the Interior relating to the Outer Conti-

nental Shelf Lands which come within the scope of that

section.

B. The Outer Continental Shelf Act Amendments of 1978.

The second statute which in the view of the Department

of the Interior supersedes § 307(c)(1) regarding leases is

the Outer Continental Shelf Land Amendments Act of

1978. Section 208 of that Act adds to the Outer Continental

Shelf Lands Act of 1953 a number of new sections con-

exclusive procedure for the determination of the consistency require-

ment, covering both the Department of the Interior and the lessee, or

whether the Department of the Interior remains subject to the addi-

tional consistency requirement of § 307(c)(1).

taining specific procedures for the Outer Continental Shelf

Lands leasing program. Some of those provisions are ex-

pressly adjusted to the Coastal Zone Management Act.

(See especially the repeated references to §§ 306 and

307(c\3)(B) of the Coastal Zone Management Act in § 25 of

the Outer Continental Shelf Lands Act added by the 1978

Amendments, 43 U.S.C. (Supp.) § 1351.)

The most significant apparent conflict between the 1978

Amendments and § 307(c)(1) appears in § 19 of the Outer

Continental Shelf Lands Act, 43 U.S.C. (Supp.) § 1343, en-

titled “Coordination and Consultation with Affected State

and Local Government.” Pursuant to § 19(c) the Governor

of a State, or the executive of an affected local government,

may submit to the Secretary of the Interior recommenda-

tions regarding the size, timing, or location of a proposed

lease sale or with respect to a proposed development or

production plan. It provides that the Secretary of the Inte-

rior shall accept those recommendations unless he decides

that they do not provide for a reasonable balance between

the national interest [in increasing oil production] and the

well-being of the citizens of the affected State. The perti-

nent committee reports say that no “State should have a

veto power over OCS [Outer Continental Shelf] oil and gas

activities.” S. Rept. 95-284, p. 78; H. Rept. 95-590, p. 153.

Under oridinary circumstances we might be inclined to

find a clear legislative intent to the effect that the recom-

mendations referred to in § 19(c) were designed to take the

place of the conformity requirement of § 307(c)(1) of the

Coastal Zone Management Act. The language and legisla-

tive history of the 1978 Amendments, however, refute any

such intent.

Section 608(a) of the 1978 Amendments provides express-

ly that:

Except as otherwise expressly provided in this Act,

nothing in this Act shall be construed to modify, or re-

peal any provision in the Coastal Zone Management

Act of 1972...

More specifically, the section-by-section analysis of § 19

in the House Report contains the following footnote ex-

pressly disclaiming any Congressional intent to modify by

implication the consistency requirements of the Coastal

Zone Management Act:

“The committee is aware that under the Coastal Zone

Management Act of 1972, as amended in 1976 (16

U.S.C. 1451 et seq.), certain OCS [Outer Continental

Shelf] activities including lease sales and approval of

development and production plans must comply with

‘consistency’ requirements as to coastal zone manage-

ment plans approved by the Secretary of Commerce.

Except for specific changes made by Titles IV and V of

the 1977 Amendments,® nothing in this Act is intended

to amend modify or repeal any provision of the Coastal

Zone Management Act. Specifically, nothing is intend-

ed to alter procedures under that Act for consistency

once a State has an approved Coastal Zone Manage-

ment Plan.” H. Rept. 5-590, p. 153, fn. 52.

We therefore conclude that neither the Coastal Zone

Management Act Amendments of 1976 nor the Outer Conti-

nental Shelf Lands Act Amendments of 1978 affect the ap-

plication of the consistency requirement of § 307(c)(1) of

the Coastal Zone Management Act to the pre-leasing activi-

ties of the Department of the Interior.

Having determined that the pre-leasing activities of the

Secretary of the Interior are subject to the conformity re-

quirements of § 307(c)(1) of the Coastal Zone Management

Act, we now reach the second question posed in the submis-

sion. The Department of the Interior contends that, if

§ 307(c)(1) applies at all to its pre-leasing activities, it

applies only to those activities which, according to the plain

statutory language of the paragraph, directly affect the

Coastal Zone.

The implementing regulations issued by the Department

of Commerce in 1978, however, substitute the term “signif-

icantly” for the statutory word “directly” and define ‘signif-

icantly” in terms of “primary, secondary, and cumulative

*The House Report was submitted in 1977. Title V of the 1978

Amendments contains express amendments to the Coastal Zone Man-

agement Act. Section 504 modifies § 307(c)(3)(B)(ii).

effects”. 15 CFR §§ 930.30, 43 Fed, Reg. 10518-10519. The

department explains its departure from the statutory lan-

guage on the ground that, while the various provisions

relating to the consistency requirement are not uniform in

language, the legislative history is “replete” with state-

ments that Congress intended to cover al! Federal activi-

ties capable of significantly affecting the Coastal Zone. See

43 Fed. Reg. 10511. In our view the legislative history does

not justify this departure.

Prior to the conference, the text of § 307(c)(1), as passed

by both Houses of Congress, subjected all federal activities

in the Coastal Zone to the consistency requirement. Senate:

118 Cong. Rec. 14190 (§ 314(b)(1)), House: 118 Cong. Rec.

26502. (§ 307(c)(1)). The Conference Committee changed

federal activities “in the Coastal Zone” to the present stat-

utory language of “directly affecting the Coastal Zone.”

The Explanatory Statement in the Conference Report does

not explain why the Committee departed from the language

common to the bill as it had passed both Houses.* The

statement, however, indicates a full awareness that the dif-

ferent paragraphs of § 307(c) applied different standards of

Federal impact on the Coastal Zone: § 307(c)(1) “directly

affecting”; § 307(c)(2) “in the Coastal Zone”'®; § 307(¢)(3)

“similar consideration”.

In view of this history of the words “directly affecting”

we are unable to concur in an interpretation that would di-

lute “directly” first to “significantly” and then to “primari-

ly, secondarily, and cumulatively.” e

* They (the conferees) also agreed that as to Federal agencies in-

volved in any activities directly affecting the State coastal zone and

any Federal participation in development projects in the coastal zone, —

the Federal agencies must make certain that their activities are to the

maximum extent practicable consistent with approved State manage-

ment programs. In addition, similar consideration of State manage-

ment programs must be given in the process of issuing Federal licenses

or permits for activities affecting State coastal zones. H. (Conf) Rept.

92-1544, p. 14. (Emphasis applied.)

The regulations issued by the Department of Commerce extend

the “significantly affect” tests even to § 90TieN?) whieh in terms

applies only to activities “in the Coastal Zone”.

Finally, in our discussion of the question of repeal by im-

plication we have pointed out that § 307(c)(1) and

§ 307(¢)(3)(B) are separate provisions dealing with differ-

ent stages of the leasing process. We have concluded that

the provision concerning the post-leasing process (oes not

necessarily repeal a provision addressed to the pre-leasing

stage. Similarly when the statute provides for different im-

pact requirements at different stages of the leasing proc-

ess, there is no need, and indeed no Justification. for an at-

tempt to obliterate those @xpress statutory differences by

regulation. It is our opinion that the conformity require-

ment of §307(c)(1) applies only to the pre-leasing activities

of the Department of Interior directly affecting the Coastal

Zone. The question whether those activities or any of them

directly affect the Coastal Zone is essentially one of fact

which the Department of Justice is not authorized to an-

swer, See 28 Op. A.G. 218, 222 (1910); 39 Op. A.G. 425, 428

(1940).

Sincerely,

LEON ULMAN

Deputy Assistant Attorney General

Oftice of Legal Counsel

UNITED STATES DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

Rockville, Maryland 20852

March 23, 1979

MEMORANDUM TO: Record

GC—Eldon V.C. Greenberg

Application of CZMA Section

FROM: 307(c)(1) Consistency Requirement

SUBJECT: to Interior's OCS Pre-Lease Sale

Activities "

BACKGROUND

A. The Coastal Zone Management Act of 1972

Under section 307(c)(1) of the Coastal Zone Management

Act as originally enacted in 1972 (16 U.S.C. 1451, et seq.,

CZMA), all federal agencies conducting activities signifi-

cantly affecting the coastal zone were required to ensure

that their activities be conducted in a manner “to the maxi-

mum extent practicable, consistent” with state coastal man-

agement programs approved under the CZMA. The federal

agency was responsible for making a consistency determi-

nation and, in the event of a serious disagreement with

such a determination by a state, voluntary mediation by the

Secretary of Commerce, in cooperation with the Executive

Office of the President, was available. This section applied

to all federal activities and thus included the Department of

the Interior’s Outer Continental Shelf (OCS) pre-lease sale

activities, suchw@s tract selection and choice @f lease

stipulations.

In addition to this general, all-inclusive provision, special

procedures were included in section 307(cX3) of the CZMA,

as originally enacted, for federal license and permit activi-

ties significantly affecting the coastal zone. All such activi-

ties had to be certified by an applicant as consistent with a

state's approved coastal management program. This section

applied to all license and permit activities and thus applied

to Interior’s and other agencies’ OCS license and permit

activities.

B. The 1976 Amendments

In the 1976 amendments to the CZMA, Congress supple-

mented these provisions with an addition to section

307(c)(3) that required consistency compliance, through use

of the certification procedure, for federally permitted activ-

ities after the issuance. of an OCS lease (e.g., platform

placement, drilling), which activities were described in

OCS exploration and development’ production plans. States

with federally approved coastal management programs

were to review OCS plans to determine whether permit ac-

tions in such plans, if significantly affecting their coastal

zone, were consistent with the requirements of the coastal

program. Federal agencies were prohibited from issuing

OCS permits which a state found to be inconsistent with its

coastal program unless the Commerce Secretary, following

an appeal by the OCS lessee, overrode the state's

objection.

A question was raised by the Department of the Interior as

to whether, as a result of the passage of this new provision,

designated section 307(c)(3)(B), Interior's OCS pre-lease

sale activities were exempted from the general federal ac-

tivity consistency requirement of section 307(c)(1). Com-

merce objected to Interior’s claim of exemption. This disa-

greement continued up to, and now after, passage of the

Outer Continental Shelf Lands Act Amendments of 1978

(P.L. 95-372, OCSLAA).

QUESTION

The original CZMA applied to all federal activities or

permitted actions. The question is therefore whether either

the 1976 amendments to the CZMA or the OCSLAA ex-

empt the Department of the Interior from the general, oth-

all-inclusive, federal consistency requirement of sec-

tion 307(e1) of the CZMA.

CONCLUSION

Neither the CZMA, as originally enacted or as amended,

nor the OCSLAA specifically exempt any federal activity

from consistency requirements. Rather, the only relevant

statutory language—307(c)(1)—specifically includes all

such act.vities in a consistency obligation. An analysis of

the legislative history of the CZMA, as amended, and the

OCSLAA does not reveal that Congress intended any

unique exemptign for Interior's OCS pre-lease sale

activities,

| DISCUSSION

The federal consistency r@@qjpirements of the CZMA, as

@mended, are set forth in se s 307(c) and (d), (See At-

tachment I). Although the statutory provisions are set

forth in five subsections, they can be divided into two pri-

mary categories: requirements on federal agencies, with re-

spect to activities they conduct directly or support through

official action, (sections 307 (c)(1) and (2)), and require-

ments on private applicants for federal licenses, permits or

assistance (sections 307(¢)(3)(A), (¢)(3)(B) and (d)). As indi-

cated in Department of Commerce final federal consistency

regulations, sections 307(¢)(1) and (2) encompass all federal

actions other than federal license, permit and assistance ac-

tivities. This includes the acquisition, utilization or disposal!

of land or water resources, and the adoption of formal pro-

posals which guide or prescribe alternative uses of federal

resources. See 15 CFR $930.31, 43 Fed. Reg. 10519, March

13, 1978. The Department of the Interior’s OCS pre-lease

sale activities fall within this area. See Steps 1-12 in At-

tachment II.

A Federal activity is covered by the consistency require-

ment if it is capable of significantly affecting a state’s coast-

al zone. Thus, federal activities need not be situated within

* the boundaries of the coastal zone in order for the require-

ments to apply. See 15 CFR $923.33, 43 F.R. 8405, March

1, 1978. It is sufficient if they generate significant effects

within the coastal zone, and primary, secondary and cumu-

lative effects must be considered. See 15 CFR $920.21, 43

Fed. Reg. 10519, March 13, 1978.

Interior's actual pre-lease sale decisions and OCS pro-

gram modification proposals confirm the relationship of

OCS leasing activities to coastal zone management. In re-

cent OCS lease sales, Interior has imposed pollution control

stipulations to mitigate impacts along the coastline which

could be caused by the washing ashore of oil, fuel, chemical

residues and toxic substances. In addition, Interior has de-

leted geologically hazardous lease tracts to avoid damage to

rigs or pipelines which could lead to adverse impacts on

coastal resources. In its September 30, 1977 proposal for

“An Intergovernmental Coordinated Planning Process for

the Leasing and Transportation of OCS Oil and Gas,” Inte-

rior recommended the review of state coastal zone manage-

ment policies to ensure that tract selection and lease stipu-

lation decisions adequately addressed issues concerning

environmental quality, use conflicts, potential hazards to

pipe laying, unique resource areas and potentially affected

recreation areas. Interior concluded that if the proposal

were implemented, “Consistency with State coastal zone

management plans would be assured.” See Report at 17-18.

Except for section 307(c)(3)(B), pertaining specifically to

OCS exploration and development/production plans, noth-

ing in the 1976 CZMA amendments changed the consisten-

cy requirements of the original statute. It is an elementary

principle of statutory construction that, in the absence of a

clear arid manifest intent to the contrary, subsequent Con-

gressional action does not affect pre-existing statutory re-

quirements. Therefore, there is no basis on the plain read-

ing of the statute to exempt any federal actions, including

OCS pre-lease sale activities, from the general, all-inclusive

requirements of consistency provided in the original

statute.

In order to determine if Congress at that time intended

to modify any of Interior's consigtency responsibilities, one

must, of course, also look to the legislative history.

This history indicates that some members of Congress in-

terpreted section 307(cX3), which applied to federal license

and permit applications, to include the submission of OCS

lease bids. They codified this interpretation when commit-

tees of both Houses of Congress reported separate versions

of amendments to che CZMA in the 94th Congress with the

inclusion of the word “lease” with “license or permit” in

307(¢3). 8S. 586, Sec. 102112) (94th Cong. 2nd Sess.); H.R.

3981, Sec. 2 (15) (94th Cong. 2nd Sess.) This intent so to co-

dify was confirmed in the committee reports. See Senate

Report No. 94-277 at 19 and 36, and House Report No.

94-878 at 52.

However, on the House floor, in response to comments

from sources such as Interior Department testimony, the

word “lease” was deleted from the House bill. This was not

to remove leasing from the requirements of section

307(c\(3), but merely to retain flexibility for full considera-

tion of the issue in the Conference Committee. See 122

Cong. Rec. 1854-55 (March 11, 1976).

The Conference Committee essentially selected the

House version, which did not expressly include “lease” as

an included 307(c\(3) “license or permit.” However, the

Conference Committee Report assumed continued applica-

tion of section 307(c(3) federal consistency to the issuance

of individual OCS leases:

The conference substitute follows the Senate bill in

amending the federal consistency requirement to sec-

tion 3207(c)(3) of the Coastal Zone Management Act of

1972. The Senate bill required that each Federal lease

(for example, offshore oil and gas leases) had to be

submitted to each state with an approved coastal zone

management program for a determination by that

state as to whether or not the lease was consistent

with its program. House Report No. 94-1298 at 30.

The Conference Committee then divided section 307(¢)(3)

into two parts. Section 307(c)(3)(A) constituted the original

section 307(c)(3), providing for a state consistency certifica-

tion review of federal licenses and permits. Section

307(c)(3)(B) provided for a separate coordinated and consol-

idated state consistency certification. review of all licenses

and permits described in OCS exploration and develop--

ment/production plans. The intent of this change was to ac-

celerate offshore operations and reduce burdens on the en-

ergy industry, .by eliminating state certification review

under 307(cX3) for each industry lease bid as well as for

each separate, subsequent federal license and permit

described in OCS plans. See Steps 13, 15 and 17%in Attach-

ment II. Congress rather called for two industry consisten-

ey certifications at the OCS exploration and develop-

ment/production plan stages. See Steps 14 and 16 in

Attachment II. See also House Report No. 94-1298 at

30-31. These changes were responsive to the Department of

the Interior’s expressions of concern that the proper time

for “certification” by “lease applicants” should occur at the

OCS plan phase. Hearings on Coastal Zone Management

before the Subcommittee on Oceanography of the House

Committee on Merchant Marine Fisheries, 94th Cong., Ist

Sess. 187-8, 204 (1975). Neither the Administration nor the

Congress considered the question of exempting the Interior

Department from its OCS pre-lease sale consistency obliga-

tions under section 307(¢)(1).

Comments by committee conferees and staff members at

the Conference on the 1976 amendments continued the

discussion of subsections 307(¢)(3)(A) and (B) and the issu-

ance of individual OCS leases. Transcript at 21, 22 and 29.

Here, as during the earlier consideration by the Conference

Committee, section 307(c)(1) was never addressed.

Interior argues that the apparent Congressional intent in

creating a new section 307(c)(3)(B) of the CZMA was to ex-

clude state certification review of individual industry bids

and applications for a lease from section 307(c)(3). Com-

merce does not question that interpretation despite the am-

biguous legislative history. The unclear nature of the legis-

lative history was aptly demonstrated in the case of New

York v. Kleppe, which was being litigated at the time of

passage of the 1976 Amendments to the CZMA. In re-

sponse to the District Court Judge’s request for supplemen-

tal briefs on the impact of the 1976 CZMA Amendments,

the Natural Resources Defense Council argued that Con-

gress intended to treat leases in the “same manner as li-

censes and permits. Interior objected and argued, through

the Justice Department, that the appropriate time for im-

posing the (cX3) procedures was after issuance of a lease

when the lessee is ready to begin OCS operations. The De-

partment of Justice did not argue that (c1) was inapplica-

ble to the lease sale process. Rather, the Department's

brief stated that consistency did not apply to the physical

act of granting a lease. See Step 13 in Attachment II.

NOAA concurs with this statement. Consistency under

(c)(3) does not apply to an industry request for and receipt

of a lease, but rather (c)(1) applies to Interior’s tract selec-

tion and lease stipulation decisions. The District Court

Judge, in dictum, declared that OCS leases were subject to

the licenses and permit requirements of (¢)(3). New York v.

Kleppe, D.C.E.D. N.Y., August 13, 1976, 9 ERC 1769, re-

versed on other grounds. The holding demonstrates that

the Court was solely concerned with the application of (¢)(3)

to the leasing process.

Interior extrapolates the conclusion that Congress in the

1976 amendments to the CZMA repealed Interior's general

responsibilities under section 307(¢)(1). The Congressional!

intent behind the 1976 consistency amendment was to re-

lieve industry's burden for compliance, and not to remove

Interior’s responsibility to comply with section 307(¢)(1)

during exercise of its OCS pre-lease sale activities. The

plain words of the statute obviously do not support Interi-

or’s position. In fact, Interior itself concedes that there is

no legislative support for such a position. As stated by the

Solicitor’s Office,

Unfortunately, in light of the credible arguments

which can be made either way, the legislative history

of the 1976 amendment to the CZMA does not aid in

determining whether leasing is subject to (¢)(1). In

fact, the question of (c)(1) applicability to leasing was

nowhere discussed. Memo dated May 6, 1977, to the

Interior Acting Assistant Secretary for Policy, Budget

and Administration from the Acting Deputy

Solicitor—p. &.

Thus, as a matter of statutory interpretation and as a

matter of logical extrapolation, there is no basis to support

a contention that the plain meaning of 307(c)(1) must be dis-

regarded. The amendment to section 307(¢X3) did mot re-

lieve Interior from its Continuous responsibilities under sec-

tion 307(c)(1), as originally promulgated and never

changed, to undertake its OCS pre-lease sale activities in 4

manner consistent, to the maximum extent practicable,

with approved coastal management programs.

Interior also argues that changes in a separate, although

related, OCS statute, the OCSLAA, override the plain

meaning of 307(e1). Several sections of the OCSLAA re-

}

iate

primarily to consideration of the interests of coastal

States.

—New sections 11 and 25 deal with OCS exploration

plans and development/production plans, respectively.

Among other provisions, they essentially incorporate

the language of the federal consistency provisions of

section 307(¢(3)(B) of the CZMA, pertaining to federal

licenses or permits for activities described in detail in

such plans. In addition, section 25 provides for disap-

proval of a plan when activities described are not con-

sistent with an approved state coastal management

program.

—New section 18 requires Interior to prepare a five

year OCS leasing program. It includes a requirement

for consideration of laws, goals, and policies of affected

states, and requires Interior to consider suggestions of

affected states on such leasing program, and to indi-

cate to the President why any specific recommendation

of a state was not accepted. It also requires Interior as

part of its leasing program to establish procedures for,

among other things, consideration of the coastal zone

management program being developed or adminis-

tered by an affected coastal state pursuant to the

CZMA. Such procedures were to be consistent with

and improve upon, the existing procedures.

—New section 19 authorizes any affected state to sub-

mit recommendations to Interior regarding the size,

timing, or location of a proposed lease sale or with re-

spect to a proposed development/production plan. It

requires Interior to accept recommendations of an af-

fected state if they provide for a reasonable balance

between the national interest (based on the desirabili-

ty of obtaiming oil‘and gas supplies in a balanced man-

ner) and the well-being of the citizens of the affected

State.

—Finally, section 504 of the OCSLAA amends section

307(¢X3XB) of the CZMA itself to modify the period

for state concurrence with OCS plans for federal con-

sistency purposes.

At the OMB “quality of life review” which took place dur-

ing promulgation. of the Federal consistency regulations,

NOAA and Interior committed themselves to work with

the Congress during its consideration of the OCSLAA in

order to address Interior’s claim for an exemption. In Janu-

ary 1978, both agencies submitted to OMB opposing amend-

ments to provide explicit language on this issue within the

OCSLAA. OMB developed a decision document for Presi-

dential review. Wishing to avoid conflicts and further con-

troversy on the entire OCSLAA and particularly on pro-

posed CZMA amendments which related to OCS revenue

sharing with states, the President decided to withhold sub-

mission of an Administration amendment-on the issue. Not-

withstanding Administration inaction, Congress thereafter

reaffirmed its intent to apply (¢)(1) consistency to Interior's

OCS pre-lease sale activities.

The House OCS Committee, whose version of the amend-

ments formed the basis for Public Law 95-372, was explicit

that there was no intent to change or alter the existing

CZMA consistency applications or procedures except where

specifically so stated:

Except for specific changes made by Titles IV and V of

the 1977 Amendments [Title IV was to amend section

308 of the CZMA, and Title V included a provision to

reduce the time period for state concurrence with OCS

plans under section 307(¢\(3)(B)), nothing in this Act is

intended to amend, modify or repeal any provision of

the Coastal Zone Management Act. Specifically, noth-

ing is intended to alter procedures under that Act for

consistency once a State has an approved Coastal

Zone Management Plan. (emphasis supplied) House

_ Report No. 95-590 at 153, footnote.

As to the section 19 “state recommendation” procedure,

no attempt was made to change the existing CZMA proce-

dures. Section 19 was conceived as an additional protection

for states. Originally drafted and promoted as a veto, it lat-

er became a “preference” or “presumption” provision,

States’ recommendations as to timing, location and siting of

lease sales were to be accepted “unless....” Under the

CZMA, state recommendations are not a prerequisite. Spe-

cifie activities must be reviewed under 307(¢)(1) and con-

sistency “to the maximum extent practicable” assured. Spe-

cifically, the House Committee, whose version of section 1$

. Was accepted by the Senate, and thus made part of the

OCSLAA, stated:

The committee is aware that under the Coastal Zone

Management Act of 1972, as amended in 1976 (16

U.S.C. 1451 et seq.), certain OCS activities including

lease sales and approval of development and produc-

tion plans must comply with “consistency” require-

ments as to coastal zone management plans approved

by the Secretary of Commerce... . [NJothing is intend-

ed to alter procedures under that Act for consistency.

(emphais supplied) ibid.

Other references in the legislative history to coastal man-

agement programs reaffirm the clear Congressional intent

not to make changes other than those specifically listed, but

rather to support and build upon existing CZMA policies,

programs, and consistency requirements. See Conference

Report, House Report No. 95-1474 at 181 (§11); see Senate

Report No. 95-284 at 77; House Report No. 95-590 at 151,

152 and Conference Report, House Report No. 95-1474 at

103, 105 (§18). See Senate Report No. 95-284 at 93, 84;

House Report No. 95-590 at 167, 168; and Conference Re-

port, House Report No. 95-1474 at 117, 118, 199 (§25).

Interior argues again, despite clear legislative language

and history, that there is “repeal by implication.” Interior’s

reasoning is that Congress knew of the disagreement be-

tween Commerce and Interior regarding the applicability of

307(c)(1) to Interior’s OCS pre-lease sale activities, and yet

specifically elected not to provide for explicit application of

the 307(c)(1) requirement.

This argument contradicts the plain language and legisla-

tive history which supports application of 307(¢c)(1). Rather

than repeal by implication, there is application by recon-

firmation. The logical fallacy of Interior’s argument is its

assumption that Congress’ refusal specifically to restate

what,was already the law constitutes acceptance of a

change, which it-specifically rejected. Despite the clear op-

portunity, Congress refrained from establishing any excep-

tion within section 307(cX1) for Interior's OCS pre-lease

sale activities. More , as part of the OCSLAA

Congress did, in fact, section,207(c3\B), the very

‘source of Interior's argument, and was again silent on the

disagreement. It could have had no better nor more appro-

priate opportunity to uphold Interior's claim of exemption.

Interior’s argument is that Congressional failure to act in

the face of notice of the disagreement signifies acceptance

of Interior’s position. However, all tenets of statutory con-

struction maintain that Congressional inaction demon-

strates support for the continued application of the section

307(c)1) requirement to Interior’s OCS pre-lease sale ac-

tivities. Those proposing an exception to the broad lan-

guage of the consistency requirement have the burden of

supporting that exemption, and it is not only not met but,

in fact, has been outweighed by the plain words and history

of the provision. Even if we assume that the statutory lan-

guage and legislative history do not mandate application of

307(c)(1) to OCS lease-related activities, legislative inaction

is ordinarily not an adoption or ratification by the legisla-

ture of a particular interpretation of an existing statute.

Only when an interpretation has been applied consistently

over a period of time by the officer or agency responsible

for the statute’s s implementation, or by the courts, will such

an interpretation be considered, and then with great hesi-

tance. See e.g., Kay v. FCC, 433 F. 2d 638 (D.C. Cir.

1970); 2A Sutherland, Statutory Construction, 4th ed., at

261-65 (1973).

“True, long-standing administrative interpretation of a

statute, acquiesced in by all interested parties, may

form the basis for an inference that the administrative

interpretation is correct. However, courts are proper-

ly chary of equating mere inaction with approval in the

absence of a solid foundation for the apg of con-

scious ratification.”

Duncan vy. Railroad Retirement Board, 375 F. 2d 915

(4th Cir. 1967). Y

There is here no longstanding consistent administrative

interpretation of the statutory provisions in issue

supportive of Interior’s interpretation. Rather, the agency

responsible for implementation of the CZMA, NOAA, has

in fact pointedly continued to assert the clear applicability

of the statutory language* There is absolutely no legal basis

for reliance upon Congressional inaction as an aid to the

construction of section 307(¢). Brooklyn Union Gas Co. y.

New York State Human Rights Appeal Board, 41 N.Y. 2d

84, 359 N.E. 2d 393 (1976).

“If the failure of enactment of every amendment of-

fered for the consideration of Congress were necessa-

rily held to shed light on the legislation sought to be

amended, the search for Congressional intention would

be endless and fruitless.”

United States v. Guerlain, Inc., 155 F. Supp. 77 (SDNY

1957).

Thus, the rules of statutory construction are supportive

of the application of section 307(c)(1). Yet, it is unnecessary

even to devote time to considering them at length, in light

of the evident intent of Congress.

POLICY CONSIDERATIONS

It is also clear that the policies of the CZMA would be

furthered by the application of section 307(¢)(1) to Interi-

or’s OCS tract selection and lease stipulation decisions sig-

nificantly affecting the coastal zone. Policy considerations

include the following:

—The purpose of the federal consistency provisions is

to provide added benefits to those coastal states that

have expended a substantial effort to develop coastal

programs which address national as well as state and

local concerns. States with approved programs are

provided with both mandatory CZMA consistency au-

thority and discretionary OCS Lands Act (§19) guber-

» natorial recommendations for OCS development/pro-

duction plans, and are equally entitled to dual benefits.

at the critical OCS lease sale stage. States are likely to™

question the utility of the federal CZM program if OCS

leasing decisions are totally exempted from the con-

sistency requirements.

—Application of 307(¢X1) would promote intergovern-

mental coordination at the earliest practicable time.

requirements related to pipeline corridors, areas of

critical concern, water and air quality, recreation

sites, marine habitat, etc., and then would select

tracts and impose lease stipulations in a manner which

allows energy development while conforming to coastal

program requirements. Interior studies indicate that

implementation of such measures at the OCS lease sale

stage would minimize adverse coastal environmental

and socio-economic impacts, thereby reducing conflicts

with affected states.

—Application of 307(c)(1) calls for a process with built-

in safeguards. As a condition of federal approval for a

state’s coastal program, the state must demonstrate

adequate consideration of the national interest in plan-

ning for and siting of major energy facilities, including

those related to OCS exploration and development. No

coastal program has been approved except after criti-

cal review by affected federal agencies, including In-

terior. After federal approval, Interior’s tract selec-

tion and lease stipulation decisions need only be

consistent, “to the maximum extent practicable,” with

state programs, and any serious disagreement is sub-

ject to mediation by the Commerce Secretary in coop-

eration with the Executive Office of the President. Ar-

bitrary or illegal state action could lead to federal

termination of program approval and cessation of state

consistency authority and, also, loss of federal monies

under the Coastal Energy Impact Program. Thus, a

special exemption for Interior is not warranted since

the consistency privilege is exercised within a frame-

work which shields against abusive state action.

—Failure to apply consistency to OCS tract selection

and lease stipulation decisions would undoubtedly lead

to conflicts with coastal states. The absence of a man-

datory intergovernmental coordination process at this

stage has been the primary cause of numerous state

lawsuits against Interior resulting in serious delays to

offshore leasing. Previous Administrations were griev-

ously unresponsive to state recommendations concern-

ing OCS lease sales with indifference usually justified

by the position that the national interest in energy de-

velopment warranted disregard for coastal concerns.

If consistency is not applied at the lease sale stage,

substantial time and money will be wasted as states

object, at the exploration and development/production

phases, to OCS activity occurring in tracts, or subject

tu lease stipulations, which prove to be inconsistent

with approved coastal programs. The issue was raised

by Massachusetts in litigation concerning Interior’s

Georges Bank OCS lease sale. California is now seek-

ing disposition of the issue prior to Interior’s OCS

lease sale off Southern California scheduled for June

1979, and has argued that “it is essential to us that

leases be consistent with our coastal management pro-

gram.” Letter from the California Coastal Commission

to the President, December 5, 1978. Agreement or

conflict resolution at the lease sale stage will necessa-

rily reduce friction and potential litigation at the later

“active” phases, thus minimizing or eliminating the

likelihood of delay for exploration and production of

OCS oil and gas. Only new or significantly changed cir-

cumstances will ordinarily allow a previously deter-

mined location or lease condition to be challenged.

—Failure to apply 307(c)(1) to Interior’s OCS activities

would consistitute the only exemption to the federal

consistency requirements of the CZMA, thus estab-

lishing a seriously harmful precedent for other federal

activities significantly affecting the coastal zone. The

exemption is particularly unreasonable in light of the

fact that other Interior public land management activi-

ties which significantly affect the coastal zone (e.g.,

onshore oil and gas, geothermal and coal development)

are subject to the federal consistency requirements.

Allowing this adverse precedent to be set would en-

courage other federal agencies to claim implied exemp-

tions whenever “state consultation” procedures are in-

corporated in legislation enacted subsequent to the

1972 CZMA. Accordingly, an exemption for Interior

could be the first step towards serious erosion of the

consistency provisions, and consequent intergovern-

mental conflicts.

In conclusion, sound policy considerations and legal anal-

ysis dictate that 307(c)(1) be applied to Interior’s OCS pre-

lease sale activities. Such application will encourage state

cooperation, avoid lawsuits, and promote oil and gas devel-

opment activities while minimizing adverse effects on the

coastal environment. The plain meaning of the CZMA as

originally enacted and as amended, the legislative history

of the 1976 CZMA amendments, and the words of the

OCSLAA and its legislative history all indicate that section

307(c)(1) consistency requirements apply to OCS pre-lease

sale activities. There is no legislative support for any inter-

pretation that Interior’s OCS pre-lease sale activities are

exempt from the federal consistency requirement of section

307(c)(1) of the CZMA. Such exemption is inconsistent with

the 1976 amendments to the CZMA. Amendments at that

time dealt with section 307(c)(3), and Congress specifically

did not change the applicability of section 307(¢)(1). The

OCSLAA also lends support to inclusion rather than ex-

emption. That statute is silent, and the legislative history

reveals that Congress intended section 307(¢)(1) to continue

to apply. In sum, Interior’s interpretation lacks foundation

in logic, law and evidenced Congressional intent.

California Coastal Commission

631 Howard Street, 4th Floor

San Francisco California 94105

(415) 543-8555

July &, 1980

Cecil Andrus

Secretary of the Interior

U.S. Department of the Interior

Washington, D.C. 20240

Dear Secretary Andrus:

While we have been unable to agree in formal mediation

proceedings whether Section 307(c)(1) of the Coastal Zone

Management Act requires DOI to submit a consistency de-

termination for OCS lease sales, the California Coastal

Commission continues to maintain that the Final Notice of

Sale is the key Federal activity which opens thousands of

acres of the OCS to oil and gas development and sets in

motion a series of events which have consequences in the

coastal zone. Accordingly, it is the Commission’s position

that DOI must submit a determination that the Proposed

Notice of Sale for OCS Lease Sale #53 is consistent, to the

maximum extent practicable, with the California Coastal

Management Program. The purpose of this letter is to for-

mally request submittal of a consistency determination at

the time of the Proposed Notice of Sale, which is scheduled

for October 1980.

At the conclusion of the mediation proceedings, Secre-

tary Klutznick directed NOAA to promulgate regulations

defining the term “directly affect”. The Secretary stated

that the rulemaking would be guided by the opinion of

former Commerce General Counsel Haslam which con-

cluded that the CZMA “contemplates that pre-lease Sale

activities as in California be subject to a consistency deter-

mination”. Since it is highly unlikely that the regulatory

definition will be finalized by the time of the Proposed No-

tice of Sale for Lease Sale 53, we believed it important to

inform you of our position at this time.

Pursuant to §930.34(b) of NOAA’s consistency regula-

tions, “the consistency determination shall be provided to

State agencies at least 90 days before final approval of the

Federal activity....” As stated above, we believe that the

Final Notice of Sale constitutes the final approval in the

case of an OCS lease sale. This is consistent with DOI’s

view as to the proper pre-lease activity which should be

subject to consistency review. In a March 7, 1980 letter to

Fran Ulmer of the Alaska Governor's Office, Deputy As-

sistant Secretary Heather Ross stated:

The Department views the publication of the final no-

tice of sale as the declaration of this “final approval”.

Ninety days prior to this final approval coincides with

the normal publication date of the proposed notice of

sale. Therefore, it is at this point that a consistency

determination or a negative determination is made.

On June 18, 1980, you announced final approval of the

Five-Year OCS Oil and Gas Leasing Schedule. This sched-

ule accelerated the proposed notice of sale for Lease sale 53

several months to October 1980; the Final Notice of Sale re-

mains at April 1981. The fact that you have accelerated the

timing of the proposed notice in no way detracts from the

fact that it remains the proper point for a consistency de-

termination. The Coastal Commission submitted extensive

comments, both orally at the public hearings and as a por-

tion of the Governor’s Office written comments, on the

Draft EIS which detailed which basins and tracts should

not be offered for lease and which stipulations should be in-

cluded if the Proposed Notice of Sale for Lease Sale 53 is to

be consistent with the Federally approved California Coast-

al Management Program (CCMP), This early notice of con-

sistency problems of the proposed lease sale should be thor-

oughly discussed and analyzed in the Final EIS and/or the

Secretarial Issue Document for the Proposed Notice of Sale

for Lease Sale #53. Despite our legal disagreement on the

requirements of §307(c)(1), a June 25, 1980 letter from

Clyde Martz to myself stated that “nothing ... bars Interi-

or from making consistency determinations in those cases

where comments suggest potential consistency problems”.

In addition to the program administered by the Coastal

Commission, the CCMP also includes a separate segment

for San Francisco Bay implemented by the San Francisco

Bay Conservation and Development Commission (BCDC).

BCDC both testified at the public hearings and submitted

written comments on the DEIS. Since DOI anticipates that

San Francisco Bay will be the staging and service area for

OCS development the consistency determination accompa-

nying the Proposed Notice of Sale must also analyze con-

sistency with the San Francisco Bay segment of the CCMP.

We look forward to a consistency determination at the

time of the Proposed Notice of Sale for Lease Sale #53 in

October, and an amicable resolution of this issue.

Sincerely yours,

is/

MICHAEL L. FISCHER

Evecutive Director

cc: Heather Ross

Clyde Martz

Michael Glazer

APPENDIX ©

C.R. 19, Def. Ex. L-F

UNITED STATES DEPARTMENT OF THE INTERIOR

OFFICE OF THE SECRETARY

WASHINGTON D.C. 20240

October 22, 1980

Mr. Michael L. Fischer, Executive Director

California Coastal Commission

631 Howard Street, 4th Floor

San Francisco, California 941105

Dear Mr. Fischer:

In your letter of July 8, 1980, you requested a consisten-

cy determination for the Proposed Notice of Sale for OCS

Lease Sale No. 53. In accordance with the Section 307(¢)(i)

Federal consistency provisions of the Coastal Zone Man-

agement Act (CZMA) and Subpart C of 15 CFR 930, we

have assessed the possible effects of the Department's pre-

lease activities associated with OCS Lease Sale No. 53 and

found that none directly affects the California coastal zone.

I am hereby providing you notification of these findings in

accordance with 15 CFR 930.35(d). The reasons for this

negative determination are set forth below and in Attach-

ment 1.

We have determined, after a careful review of the Pro-

posed Notice of Sale, that no lessee will be required, as a

result of and as the next step following lease award, to un-

dertake an activity with coastal zone effects. In all cases

the lessee and the Deputy Conservation Manager must first

exercise discretion by making subsequent decisions to initi-

ate for approval and to approve specific action proposals be-

fore the coastal zone could be affected. Therefore, we have

found, in light of the April 20, 1979, Opinion of the Depart-

ment of Justice, the October 10, 1979, Opinion of our Solici-

tor regarding the meaning of the Section 307(c)(1) require-

ment, and the facts associated with the proposed lease sale,

that none of the terms and conditions of Lease Sale No. 53°

as reflected in the proposed notice of sale nor the subse-

quent award of leases will directly affect the California

coastal zone. The details of this finding as it applies to the

proposed decision to lease the set of tracts under the

specified stipulations are discussed in Attachment 1.

In further response to your July 8, 1980, letter, I would

like to indicate in more detail why I believe a consistency

determination is nut required for the pre-lease activities for

OCS Sale No. 53 and why I believe it would not be con-

structive or meaningful to make one.

I believe that this finding is in keeping with the intent of

the Section 307(c)(1) provisions and also represents good

public policy. An assurance of consistency by the Secretary

of Interior under 307(c)(1) is required only for Federal ac-

tivities which directly affect the coastal zone. The effects on

coastal land and water use which may arise from post-lease

activities (which are subjects to Section 307(c)(3) consisten-

cy procedures) are not, for Sale #53, direct effects of leas-

ing decisions but rather the effects of subsequent decisions

and events. Thus, these post-lease operational activities are

not subject to a consistency determination under section

307(¢)(1).

Section 307(c\(3) includes provisions to assure that no

OCS operational activity will be inconsistent with the Cal-

ifornia Coastal Management Program (CCMP). Through

your authority under this section, the California Coastal

Commission (CCC) can, barring the exceptional case of an

override by the Secretary of Commerce under Sec.

307(c(3)( Bill), prevent or require the modification of any

of the federally permitted OCS operational activities, and

their associated facilities, which affect any land use or

water use in the coastal zone and are found to be inconsist-

ent with the CCMP. Through this statutory framework,

California is assured that, by exercise of its own authority,

only consistent activities will occur after lease award. It

does not have to reach out, through Federal pre-lease con-

sistency responsibilities, to limit sale proposals and thereby

preclude energy development opportunities before specific

activities are proposed or their specific coastal effects

evaluated.

Your request for a consistency determination for OCS

Sale No. 53 pre-lease activities appears to be based on your

agency’s view of the term “directly affecting” as meaning

“sets in motion a series of events which have consequence

in the coastal zone.” The result of this interpretation is that

all effects on the coastal zone of both pre-lease and post-

lease activities must be considered as “direct”. Using this

logic, the word “direct” would be a meaningless modifier

since this interpretation would require that the consistency

of post-lease OCS activities be assured under both Sections

3207(c1) and 307(c\(3), leaving no distinction between

these two requirements. We believe this interpretation was

not the intent of Congress and would not be workable.

The Department has carefully analyzed the June 4, 1980,

CCC comments on the DEIS and your testimony at the

EIS hearing in San Francisco on June 23, 1980, as well as

all the other comments and views which were provided to

us. Those materials have been of great assistance in appris-

ing us of your views and concerns. The degree of detail you

provided allows us to carry out our responsibilities with full

understanding of your recommendations. A description of

the measures we have taken which we believe are respon-

sive to your concerns is included in Secretary Andrus’ let-

ter to Governor Brown (Attachment 2).

Sincerely,

Assistant Secretary —Policy,

Budget and Administration

Attachment 1

APPLICATION OF CONSISTENCY REQUIREMENTS TO

CENTRAL AND NORTHERN CALIFORNIA OCS SALE

PRE-LEASE ACTIVITIES

In order to carry out its responsibilities under Section

307(c)(1) of the CZMA, the Department of the Interior has

reviewed its pre-lease activities which will culminate in a

Final Notice of Sale for Central and Northern California

OCS sale #53. Based on the content of the proposed Notice

of Sale, which includes the proposed stipulations and set of

tracts to be offered for sale, the Department has found that

neither the decisions to impose the stipulations nor the de-

cisions concerning sale configuration directly affect the

coastal zone of California. These findings are discussed

below.

STIPULATIONS INCLUDED FOR THE CENTRAL AND

NORTHERN CALIFORNIA OCS SALE

In general, lease stipulations impose legal requirements.

However, it is necessary to examine each stipulation in

light of the interpretation of pre-lease consistency require-

ments given in the October 10, 1979, Solicitor’s opinion to

determine if it causes a direct effect. Each stipulation has

been analyzed in this manner. The rationale for the findings

for each is as follows:

Stipulation 1 states that the Deputy Conservation Mana-

ger (DCM) may require environmental surveys on certain

tracts if he has reason to believe biological populations or

habitats exist and require additional protection. Upon mak-

ing a finding of the existence of special biological resources,

the DCM shall give the lessee written notice of the invoca-

tion of this stipulation. Depending on the results of the sur-

vey, the lessee may be required to take certain actions to

avoid biological damage. However, the imposition of this

stipulation is not an activity directly affecting the coastal

zone since the DCM must make a decision subsequent to

the lease sale as to whether and when to invoke this stipu-

lation and so inform the lessee before the surveys would be

initiated. Secondly, the stipulation indicates that if during

OCS operations a significant biological resource is discov-

ered, reasonable efforts will be made to preserve and pro-

tect the resource. This part of the stipulation does not come

into foree until after the DCM decides to approve the oper-

ational plans, thus, its imposition is not an activity directly

affecting the coastal zone.

Stipulation 2 states that the DCM may require the lessee

to conduct remote sensing surveys to ascertain whether

cultural resources exist on the leasehold which may be af-

fected by lessee operation. After assessment of the survey,

the stipulation requires lessees to report any significant

historie or archeological discoveries which are made during

the conduct of operations on an OCS leasehold. The lessee

is directed to make every possible effort to preserve and

protect the discovery until directions are received by the

DCM. No activity is required or prohibited which could

have a physical impact on the State’s coastal zone. Thus,

the imposition of this stipulation is not an activity directly

affecting the coastal zone.

Stipulation 3 provides that the DCM shall not allow cer-

tain OCS operational activities in potential geologic hazard

areas unless the lessee can demonstrate that the proposed

operation can be conducted safely on the lease or from

areas adjacent to it. The invocation of this stipulation is de-

pendent on a subsequent decision by the DCM and there-

fore, is not an activity which directly affects the coastal

zone. If exploratory drilling operations are subsequently al-

lowed in these areas, site-specific surveys shall be required

and further, if emplacement of structures or seafloor well-

heads for production are allowed, all unstable areas must

be mapped. In all cases events and decisions subsequent to

lease issuance must occur first, namely the submission to

and the approval of an exploration plan by the DCM.

Therefore, imposition of these parts of Stipulation 3 is also

not an activity directly affecting the coastal zone.

Stipulation 4 requires certain lessees to cooperate with

the appropriate military agency in the conduct of OCS re-

lated activities. No activity is required or prohibited which

could have a physical effect on the State’s coastal zone.

Thus, the imposition of this stipulation is not an activity di-

rectly affecting the coastal zone.

Stipulation 5 requires certain lessees tu assume all risks

of damage or injury to persons or property in cases involv-

ing the U.S. Government related tu programs and activities

of the Western Space and Missile Center, Pacific Missile

Test Center, or other appropriate military agencies. Such

an agreement requires the lessee to take no activity which

would have a physical effect on the coastal zone of Cal-

ifornia and thus is not an activity directly affecting the

coastal zone.

Stipulation 6 requires pipelines to shore under certai

circumstances and specifies that they be designed and con-

structed to provide protection from certain hazards. How-

ever, before such a pipeline could be built, a decision by the

lessor as to its net social cost, a judgment of its technica:

feasibility, and a decision to issue a permit for its construc-

tion must occur. Thus, the imposition of this part of the

stipulation is not an activity directly affecting the coasta

zone. In those cases where surface vessels must be used t

transport hydrocarbons, such as in the case of an emergen-

cy, the stipulation further requires that all vessels used

must conform with all standards pursuant to the Port and

Tanker Safety Act of 1978 (P. 95-474). The stipulation re-

sults in no immediate activity but is only applicable after a

subsequent events and decisions by the DCM related to the

exploration phase of OCS oil and gas operations. Therefore.

the imposition of this part of the stipulation is not an activi-

ty directly affecting the coastal zone.

Stipulation 7 requires that subsea protrusions related to

OCS activities be protected, if feasible, against commercia.

trawl gear. Latitude and longitude coordinates, as well as

water depths, of structures such as well heads and tempo-

rary abandonments must be submitted tu the DCM. How-

ever, the stipulation is not effective immediately since a de-

cision to issue permits for construction of pipelines and

other structures must occur first. Therefore, the imposition

of this stipulation is not an activity directly affecting the

coastal zone.

Stipulation 8 requires lessees to include proposed fisher-

ies training programs in their exploration and development

plans for review and approval by the DCM. Since the prep-

aration and submission of these training programs cause no

physical effects on the coastal zone and since they must be

approved by the DCM before they will be conducted, this

stipulation is not an activity directly affecting the coastal

zone.

Stipulation 9 provides for the reduction of the royalty

rate by the Director of the Geological Survey under some

circumstances. Since the stipulation does not take effect un-

til the Director decides to initiate such a reduction and

since changes to royalty rates have no effect on the coastal

zone, the imposition of this stipulation is not an activity di-

rectly affecting the coastal zone.

Final Configuration of Lease Tracts

In addition to stipulations, the Secretary’s decision to is-

sue the Final Notice of Sale for the Central and Northern

California OCS Sale will identify exactly which tracts will

be offered for sale. This decision is not an activity directly

affecting the coastal zone because no changes to coastal re-

sources or physical impacts on the coastal zone are possible

without subsequent decisions and actions.

In addition, the October 10, 1979, Solicitor’s opinion indi-

cates that “... we do not believe that remote or highly

speculative coastal zone impacts, such as alleged changes in

property values or possible effects on the potential use of a

given area within the coastal zone, are impacts which trig-

ger the consistency requirements of §307(c)(1).” Thus, any

such effects, even if it could be ascertained that they indeed

were motivated in part by OCS Lease Sale No. 53 pre-lease

activities, should not be considered as direct effects on the

coastal zone.

CALIFORNIA COASTAL COMMISSION

631 Howard Street, San Francisco 94105—(415) 543-8555

California Coastal Commission Resolution

on the Secretary of Interior's Proposed Notice of Sale

for OCS Lease Sale #523

Adopted December 16, 1980

The Commission commends Secretary Andrus for delet-

ing the four northern basins in proposed OCS Lease Sale

#53. The Secretary has been very responsive to State and

local expressions of concern. We strongly support Secre-

tary Andrus’ decision to exclude these four basins from the

Call area in Lease Sale #73, avoiding a frustrating repeti-

tion of analyses and debates recently experienced in the

process leading up to this proposed OCS Lease Sale #53.

Regarding the Santa Maria Basin, the Commission con-

tinues to recommend that leasing be delayed until impor-

tant studies underway for that area can be completed and

incorporated into decisions to offer certain tracts for lease.

Several persons testified on the need for results of these

studies before a leasing decision is made, including San

Luis Obispo Council of Governments (SLO COG). These

studies are (1) an oceanographic and meteorological study

of Offshore California (wind and currents) necessary for ac-

curately determining oil spill trajectories and conducting an

oil spill risk analysis; (2) the Geologic Hazards Study for

Central and Northern California; and (3), the Coast Guard

Study of Vessel Traffic and Port Access Routes along the

central and northern California coast. Information from

each of these studies could be applied on a tract by tract ba-

sis in the Santa Maria Basin to determine which tracts

present the greatest potential for oil spills, vessel traffic

conflicts, or oil reaching sensitive biological resources in

nearshore or onshore areas.

. In addition to the need to complete the above studies, the

Commissien agrees with Friends of the Coast that the sale

should be delayed because of the numerous tracts still

available to the industry for OCS oil and gas exploration

and development in the Santa Barbara Channel, just south

of the Santa Maria Basin. The oil industry has been dilatory

in exploring the leases purchased in 1968 and 1975 in and

around the Channel and is just beginning to explore tracts

purchased in Lease Sale #48, held in June 1979,

If Interior decides to go ahead with Lease Sale #53 as

scheduled in May 1981, the Commission recommends that

the following tracts be deleted from the sale: 129-155, and

158-161. These 31 tracts or portions of these tracts are

within 12 miles of the range of the threatened southern sea

otter. The sea otter spends almost 100% of its time in the

water, rarely hauling out. Breeding and pupping take place

in the water. Given the otters’ extreme vulnerability to oil

spills and the considerable threat of oil spills in the Santa

Maria Basin, the Commission concurs with Friends of the

Sea Otter and the California Department of Fish and Game

that the risk to the otter population is too high to warrant

leasing of these tracts.

Furthermore, because there is an inconsistency between

the California Air Resources Board regulations, as incorpo-

rated in the California Coastal Management Program, and

the regulations and proposed regulations of the U.S.G.S. as

they relate to air quality, the Commission believes that

permits are less likely to be granted if the regulatory

scheme is not adjusted to adequately address the State’s

concerns in this area. Therefore, the sale should be delayed

until such time that the Department of Interior delegates

air quality permit and enforcement respor s/bilities to

CARB and local air districts or adopts a lease stipulation

incorporating the recommendations made by the CARB in

these proceedings.

The Commission expresses its strong support to the Gov-

ernor for the lease stipulations as proposed by the San Luis

Obispo County Council of Governments and Santa Barbara

County. The Commission particularly recommends the Gov-

ernor accept the Santa Barbara County stipulations with

respect to protecting the biological environments and

avoiding geoplogic hazards.

Many citizens and groups testified before the Commis-

sion at the December second meeting in Monterey on the

potential hazards to the environment, indicating a great

deal of concern for the San Luis Obispo County area. Much

of the testimony has been summarized in the staff analysis

and some of it has been attached. Those who testified were:

Ronald De Carli (San Luis Obispo County and Council of

Governments), Kurt Kupper (Supervisor San Luis Obispo

County), Dr. Thomas Williams (sea otter researcher), Deb-

orah Nelson (San Mateo County), William J. Francis (Mon-

terey Penisula Audubon Society), Jan Clucas (San Luis

Obispo League of Women Voters), Donna Di Rocco (various

environmental groups in San Luis Obispo County), Tom Sil-

va (American Cetacean Society), Beryl Reichenberg (Clean

Air Coalition), David Bockman (for John Ashbaugh of the

Sierra Club), Peter Morrison-Meshot (Harbinger Communi-

cations and Save Our Shores), Carol Fulton (Friends of the

Sea Otter), Julie Bott (Friends of the Coast), Connie

Parrish (Friends of the Earth), Richard Charter (Loca!

Government Coordinator for Lease Sale #53), Bob Hardy

(Department of Fish and Game sea otter specialist), H.

Meyer, and M.H. Graham (Morro Coastal Audubon Socie-

ty). The Commission appreciates the informative and useful

testimony offered by these people.

The Commission recognizes that major conflicts could

arise between OCS petroleum exploration and development

activities and the biological and recreational resources in

the Basin area. Commercial fishing areas, seabird foraging

and resting locations, recreation spots, and whale migrato-

ry routes are important examples, as the American Ceta

cean Society and the Morro Coast Audubon Societys

testified.

The major risk to these resources is the added potential!

for major oil spills that could result from offshore oil devel-

opment and transportation. This risk would be added to the

existing risk of oil spills from coastwise tanker traffic and

from the operation of the six marine oil terminals in bstero

and San Luis Obispo Bays. The Commission agrees with

the testimony from San Luis Obispo County that existing

oil spill response capabilities in most weather conditions

cannot adequately contain and clean up a spill. The Cal-

ifornia Coastal Act recognizes this inadequacy. It states

that oil development may be permitted to maintain a

healthy economy even though . ie development may pose

added threats to coastal and marine resources protected by

the Coastal Act policies.

The Commission is extremely concerned about the ade-

quacy of oil spill response capabilities. The Commission has

used Coastal Energy Impact Program funds for an evalua-

tion of these capabilities. The Commission will use the re-

sults of this evaluation, due early in 1981, to assure through

consistency reviews that the best available, state-of-the-art

oil spill response equipment and systems are in place if

there is offshore exploration and development in the Santa

Maria Basin.

The Call for Nominations for this Sale included ten mil-

lion acres offshore the California coast. In response to State

comments, Interior deleted tracts offshore the Ano Nuevo

Ecological Preserve and offshore Trinidad at that time. The

federal Environmental Impact Statement analyzed 243

tracts, most nine square miles in area. Secretary Andrus’

Proposed Notice of Sale deletes more than half these

tracts, leaving 113 tracts in this proposed decision. This

proposed decision did delete all the tracts recommended to

him for deletion by the State and the Coastal Commission

in commenting on the Draft Environmental Impact State-

ment. The Commission’s position was that the middle three

offshore basins should be deleted because the estimates of

petroleum resources were low and the environmental risks

to these scenic, rural areas without industrial or petroleum

development were high.

The Commission is recommending further deletion of 31

tracts at this time, in spite of the ignored request for delay,

for four reasons: (1) the Secretary of Interior has decided in

both the National Five Year OCS Leasing Schedule and in

his proposed decision on OCS Sale #53 not to delay this

Sale; (2) the U.S. Fish and Wildlife Service biological opin-

ion on the risks to the sea otter was not available until after

the environmental statement hearings; (3) weighing the na-

tional interest in protecting the small population of the

threatened southern sea otter against the petroleum re-

source potential of the 31 tracts in the northern part of the

Santa Maria Basin comes out in favor of the threatened sea

‘a

otter, and (4) the EIS lacked adequate baseline data and

analysis. The phrase “national interest” is not just a code

word for “oil production”. The national interest also in-

cludes protecting other valuable marine and coastal re-

sources such as endangered species, shipping, commercial

fishing, and important habitats for marine mammals and

seabirds.

The Commission is not recommending further tract dele-

tions, although other State agencies and a number of par-

ties who testified at the Commission's public hearing urged

further deletions. These urgings included recommendation

to delete tracts to protect air quality, commercial fishing

areas, areas to which the sea otter may migrate in future

years, beach recreation areas, rocky intertidal habitats,

and rocks and beaches where marine mammals and seabirds

may rest at different times of the year. The Commission

recognizes that offshore oi] development may pose risks to

all these resources. These concerns are addressed in the In-

terior Department's lease sale stipulations and OCS Orders

governing all operations on the OCS and would be ad-

dressed through Coastal Commission consistency reviews

and local government permit proceedings on any proposed

onshore support facilities.

Under the Coastal Act the Commission has been consist-

ent in objecting to proposed offshore oil development with-

in specific buffer zones around special sensitive marine

mammal and seabird breeding areas, such as the Channe!

Islands. Objecting to development near the breeding sea

otters is consistent with these positions. The Commission

has balanced the national and State interest in domestic oil

production with the risks to these breeding areas and has

determined the balance has favored protection. The Presi-

dent has recognized this in designating the Santa Barbara

Channel! Islands Marine Sanctuary. But the Commission

and the State have not objected to offshore oil leasing in

San Pedro Bay, in the Santa Barbara Channe!|, and in the

ocean area tu the west of Point Conception just south of the

Santa Maria Basin, even though vil spills from those areas

could affect a wide range of coastal and marine resources.

The Commission is deeply concerned about protecting the

many valuable coastal resources along the northern Santa

Barbara County and San Luis Obispo Bay area coast, in-

cluding the Nipoma and Guadalupe Dunes, Avila State

Beach, the rich agricultural lands in the Santa Maria River

Valley, the commercial and recreational boats at Port San

Luis, and the views from Pismo Beach. But the Commis-

sion is not recommending deleting more than 31 of the 113

tracts on the Santa Maria Basin OCS for the following rea-

sons, One is that the petroleum potential for those 82 re-

maining tracts is high, as they are a continuation of the

already producing Santa Maria Basin onshore. The Com-

mission recognizes that both the nation and the State of

California import about half their oil supplies and that

slowing th

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