Reply Brief — Amoco Production Co. v. Gambell

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Supreme Court, U.S,

EILED

DEC 18 \986

JOSEPH F. SPANIOL, JR.

No. 85-1239 CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

AMoco PRODUCTION COMPANY, ef al..

Petitioners.

PEOPLE OF THE VILLAGE OF GAMBELL. et al..

Respondents.

On Writ of Certiorari

to the United States of Appeals

for the Ninth Circuit

REPLY BRIEF OF AMOCO PRODUCTION

COMPANY, et al.

CARL J.D. BAUMAN BrRICE M. CLAGETT

HUGHES, THORSNESS, GANTZ, E. EDWARD BRUCE*

POWELL & BRUNDIN JOHN T. SMITH II

509 West Third Avenue BosBy R. BURCHFIELD

Anchorage, Alaska 99501 COVINGTON & BURLING

(907) 274-7527 1201 Pennsylvania Ave., N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

*Counsel of Record

Attorneys for Petitioners

ee ee ee

TABLE OF CONTENTS

Page

I. SECTION 810(a) OF ANILCA DOES NOT

P'S & & >» See ere reer 1

A. The Subsistence Protection of Section

810(a) of ANILCA Is Narrower than the

Title Extinction Effected by Section 4(b)

eds elar Phe ae ar ee 1

B. The OCS Is Not “Situated in Alaska’’

Within the Meaning of ANILCA. .......... 4

C. The United States Does Not Assert Title

OR 6

D. ANILCA Is Not a General Subsistence-

ee eeeseemeecas S

Il. THE RESTRICTIONS OF SECTION

810(aX1)-(3) DO NOT APPLY TO OCS

LEASE SALES THAT ARE UNLIKELY

TO RESTRICT SUBSISTENCE. ................ 9

A. Section 810’s Specific Reference to

“‘Leases’” Does Not Sustain the Decision

a 11

B. Section 810(aX1)-(3) of ANILCA Should

Not Be Interpreted in Pari Materia with

Peele +) diphecctininitndetecicntililiidtiitanssintiinneseees 12

C. The Purposes of Section 810(a) Do Not

Require Leasing Stage Compliance with

Its Second-Tier Requirements when the

Secretary Retains Authority To Regulate

All Subsequent Stages. ................::ccceee 13

III. THE NINTH CIRCUIT’S RULING IN GAM-

BELL I SHOULD NOT BE APPLIED RET-

SORT IIEE «. :snnnercircossnanquonmmrincomnenenninedemece 14

IV. THE NINTH CIRCUIT’S PER SE INJUNC-

TIVE RELIEF RULE IS INCONSISTENT

WITH THE COURT’S DECISION IN

WEINBERGER v. ROMERO-BARCELO. ... 16

I i a 20

TABLE OF AUTHORITIES

CASES: Page

Burlington Truck Lines, Inc. v. United States, 371

ins SAEED. naidtcceshtnilieeasebindintbbtbetetsnsbeoees 10

California v. Watt, 683 F.2d 1253 (9th Cir. 1982),

rev'd on other grounds, 464 U.S. 312

ERE NARGIS GCS a Re LN 10

Camp v. Pitts, 411 U.S. 188 (1973) «20... eee 10

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) ..... 14, 15

Citizens to Preserve Overton Park v. Volpe, 401

i sits aeccdatateesantiotionngrinneesees 10

City of Los Angeles Department of Water and Power

v. Manhart, 435 U.S. 702 (1978) .................... 14, 15

Conservation Law Found. v. Andrus, 623 F.2d 712

UID © iiss. sila cin cnialilisnacilipiidmiibeuanees 13

Ford Motor Co. v. NLRB, 305 U.S. 364 (1939) . 10

Heckler v. Turner, 470 U.S. 184 (1985) .............. 3

Morris Friedman & Co. v. United States, 351 F.

Bem. SLi Coast. Cl. GTZ) ........0.c.cccccccceeeeeee 5

North Slope Borough v. Andrus, 642 F.2d 589 (D.C.

i lit in telaiaterieneaibiiineslBanaagytovees 13

Ohio Oil Co. v. Indiana, 177 U.S. 190 (1900) _.... 7

Rodway v. United States Department of Agriculture,

514 F.2d 809 (D.C. Cir. 1975) ..........eeeeeeeeee. 11

SEC v. Chenery Corp., 332 U.S. 194 (1947) _....... 10

Secretary of the Interior v. California, 464 U.S. 312

OE ee 13

TVA v. Hill, 487 U.S. 158 (1978) ...................c0000. 18, 19

Udall v. Tallman, 380 U.S. 1 (1965) © .................. 3

United States v. Ptasynski, 462 U.S. 74 (1983) .. 6

United States v. Ray, 423 F.2d 16 (5th Cir.

li I saindidueiniabinipninptengnees 7

Village of False Pass v. Clark, 733 F.2d 605 (9th

a ceeceiidesneiens 13

iil

Table of Authorities Continued

Page

Village of Gambell v. Clark, 746 F.2d 572 (9th Cir.

IND beat AN SPE aie aire 9, 14, 15, 16, 17

Village of Gambell v. Hodel, 774 F.2d 1414 (9th

2 neta a i a AN STE ie 10, 16, 17, 18

Weinberger v. Romero-Barcelo, 456 U.S. 305

a cancion 16, 17, 18, 19

Western Oil & Gas Ass’n v. EPA, 633 F.2d 803

i aR ES I Te RS RR 11

STATUTES:

Alaska National Interest Lands Conservation Act,

i EE 6

Section 810(a), 16 U.S.C. § 3120(a) ............... passim

Alaska Native Claims Settlement Act,

I fo cstccennocecesees 6

I I GE GD... cccccccccvetstoccees 2

ss ccesennennnnocnscones 4

Clean Water Act,

EY." | scescensonncnseocte 18

Coastal Zone Management Act,

Is 10

Endangered Species Act,

a 4

Marine Mammal Protection Act,

a )

National Environmental Policy Act,

EES LO )

— TT a SR 6

Ee a eR 6

LEGISLATIVE HISTORY:

H. R. Rep. No. 300, 99th Cong. Ist Sess.

illicit ainsi niadneeitertnecnnatigtionanastsesercercees 7

S. 35, 92d Cong., lst Sess. (1971) _...................... 2

Table of Authorities Continued

Page

MISCELLANEOUS:

Black’s Law Dictionary (5th ed. 1979) ................ 5

F. — Handbook of Federal Indian Law (1982 ‘

H. Williams & C. Meyers, Oil and Gas Law

SNE cdecegsbinnalbasadantaliieeaamiacsacmaanen dosha. 7

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1986

No. 85-1239

AMOCO PRODUCTION COMPANY, et al.,

Petitioners,

PEOPLE OF THE VILLAGE OF GAMBELL, et al.,

Respondents.

REPLY BRIEF OF AMOCO PRODUCTION

COMPANY, et al.

I. SECTION 810(a) OF ANILCA DOES NOT APPLY TO

THE OCS.'

A. The Subsistence Protection of Section 810(a) of ANILCA

Is Narrower than the Title Extinction Effected by Sec-

tion 4(b) of ANCSA.

The essence of respondents’ argument that ANILCA

applies to the OCS is summed up at page 21 of their brief:

“Alaska Natives agreed to have Congress extin-

guish their aboriginal claims based on the un-

' Petitioners will not respond to Question 1 of respondents’ brief

regarding their claims of aboriginal title or to any portion of the amici

brief of North Slope Borough, et al., which is devoted entirely to that

question, since this Court did not grant respondents’ cross-petition which

raised this question, after petitioners demonstrated that it was not

properly presented in this case and that it was without merit.

derstanding that their subsistence uses on

affected lands would be protected. If the Claims

Settlement Act applies to the OCS, so does Title

VIIi.’”2

However, Title VIII of ANILCA protects subsistence only

on “‘public lands.’’ By contrast, the lands “affected” by

ANCSA include not only federally owned “public lands,”’

but also State and private lands. See 43 U.S.C. §§ 1603(b)

& (c). Thus, the scope of ANILCA’s subsistence protection

is much narrower than ANCSA’s title extinction.

This difference in the scope of the two statutes was

consistently recognized in the legislative history of both

statutes. Respondents point to various subsistence propos-

als that were rejected during the consideration of ANCSA,

but argue that the ANCSA Conference Committee in-

tended to insure, by oversight or other means, that Native

subsistence rights would be protected in the future. (Resp.

Br. 26 & n.26, 27). However, the subsistence measures

that were then considered by Congress did not extend to

the OCS.

For example, S. 35, 92d Cong., Ist Sess., § 21(a) (1971),

would have directed the Secretary of the Interior ‘‘to clas-

sify ... public lands surrounding any or all of the Native

Villages and groups for which lands are withdrawn under

Section 13 through 15 and under Section 23 as Subsistence

Use Units.’’ Such “withdrawn” “‘public lands’’ would have

been onshore lands. See, e.g., S. 35, § 13(bX1) withdrawing

‘‘all public lands in each township, which encloses all or

part of any Native Village ... plus all public lands in each

* Of course, Congress did not need the Natives’ agreement to extin-

guish their aboriginal title claims. As respondents concede, ‘aboriginal

title . . . [can] be extinguished at will by the sovereign holding the fee.”

(Resp. Br. 14). Moreover, as they have also conceded, ANCSA provided

them with “generous” consideration for their extinguished titles and

claims—more than 40 million acres of lands and nearly $1 billion in

cash. (Resp. Opp. to Cert. Petns., p. 7).

township which is contiguous to or corners upon the town-

ships in which such Native Villages are located... .”

The ANCSA Conference Committee’s expectation that

the Secretary would use his “existing withdrawal author-

ity’”’ to protect subsistence (Resp. Br. 26) must be read

against such proposed ANCSA subsistence measures. Since

Congress had considered directing the Secretary in ANCSA

to withdraw onshore lands surrounding Native villages to

protect subsistence, it was such “withdrawal authority”’

that the ANCSA Conference Committee obviously had in

mind, not limitations on OCS leasing.

Respondents argue that “[w]hen Interior failed to heed

this admonition [of the ANCSA Conference Committee],

Congress was forced’’ to protect subsistence by enacting

ANILCA. (Resp. Br. 6). But the subsistence protection

which Congressman Udall then thought was necessary per-

tained only to subsistence uses on the so-called “‘D-2 lands’’

onshore Alaska. (See Amoco Br. 25-26). Secretary of the,

Interior Andrus also believed that ANCSA’s implicit prom-

ise to the Natives regarding subsistence protection could

be similarly satisfied. (Jd. at 26). The views of a member

of Congress in the ‘thick of the fray’ regarding ANCSA*

and of the official principally charged with implementing

that statute‘ constitute very persuasive evidence that

ANCSA’s extinguishment of title did not entail a quid pro

quo dictating subsistence protection on the OCS.

Moreover, the proposed modification of the Udall/Andrus

position advocated by the Alaska Federation of Natives

(AFN) and eventually accepted by the Congress was not

designed to make ANILCA’s subsistence protection coex-

tensive with ANCSA’s title extinguishment. Although

respondents baldly assert that the AF'N took the position

that Congress should ‘“‘apply the subsistence title [of AN-

* Heckler v. Turner, 470 U.S. 184, 209 (1985).

‘ Udall v. Tailman, 380 U.S. 1, 16 (1965).

ILCA] to all lands to which [ANCSA] had extinguished

title’ (Resp. Br. 28), they are forced to admit that the

AFN’s proposal was limited to extending subsistence pro-

tection “‘to all Native subsistence uses on all Federal public

lands’’ (id.). Neither the AFN nor anyone else ever made

the linkage which plaintiffs now discern between the scope

of ANCSA’s extinction of title and the extension of AN-

ILCA’s subsistence protection.®

B. The OCS Is Not “‘Situated in Alaska’ Within the Mean-

ing of ANILCA.

Respondents do not argue that the OCS is “situated in

Alaska” within the meaning of the Alaska Statehood Act,

the OCS Lands Act, or the Submerged Lands Act. (See

Amoco Br. 13-14). Instead, respondents stand entirely upon

the Ninth Circuit’s interpretation of “in Alaska’’ in Section

4(b) of ANCSA as extending to the OCS. They contend

that, given this interpretation of ANCSA, the OCS must

_ similarly be “situated in Alaska” for purposes of ANILCA.

In addition to failing to come to grips with petitioners’

showing (Amoco Br. 14-15) that the Ninth Circuit need

not have relied on Section 4(b) of ANCSA to reject

respondents’ claims of aboriginal title and with our show-

ing in Part I.A. above that there is no basis for construing

Section 4(b) of ANCSA and Section 810 of ANILCA in

* Respondents argue that the AFN’s restriction of subsistence pro-

tection to public lands located within the exterior boundaries of the 12

regional corporations could have contemplated the extension of Section

810 of ANILCA to the OCS since, according to respondents, the bound-

aries of the regional corporations were understood to include the OCS.

(Resp. Br. 29 n.28). The document which they cite for this proposition

(Pl. Ex. I) is a crudely drawn map which projects some corporate

beundary lines to include offshore islands. ANCSA, 43 U.S.C. § 1606(a),

clearly contemplates that the boundaries of the 12 regional corporations

established by the statute would all lie within the State of Alaska:

“(Tyhe State of Alaska shall be divided ... into twelve geographic

regions, with each region composed as far as practicable of Natives

having a common heritage and sharing common interests.”’

+ ee ee aes

pari materia, there is another fatal flaw in respondents’

argument.

In Section 4(b) of ANCSA the term “in Alaska’ was

defined as “including submerged land underneath all water

areas, both inland and offshore.’’ The term “include” or

“including” is sometimes used in a statutory context ‘‘to

add to the general class a species which does not naturally

belong to it.” Morris Friedman & Co. v. United States,

351 F. Supp. 611, 613 (Cust. Ct. 19° 2). See also Black’s

Law Dictionary 687 (5th ed. 197). In this sense, the term

“including” is a short-hand expression for the phrase ‘“‘for

the purposes of this statute the term [x] shall include [y].’’°

Congress’ addition of the phrase “including submerged land

... Offshore” in Section 4(b), therefore, does not imply

that the phrase “‘in Alaska,”’ when not specifically modified

to apply to the OCS, comprehends that region. Thus, when

Congress in ANILCA used only the phrase ‘‘situated in

Alaska,” it gave no indication that the phrase should ex-

tend to the OCS.

Respondents’ argument is not advanced by their ref-

erence to a reply memorandum filed in the Inupiat Com-

munity case (Resp. Br. 32-33), where some of the

petitioners argued that it was “perfectly natural’ for Con-

gress to include the OCS within the phrase “in Alaska”

in Section 4(b) of ANCSA. The same memorandum noted

that Congress made clear in ANCSA that it intended to

* That Congress used the term “‘including”’.in Section 4(b) to broaden

its scope is strongly suggested by the last clause of that provision. It

“includfes] any aboriginal hunting or fishing rights that may exist”

among the “aboriginal titles ... and claims of aboriginal title’ extin-

guished by Section 4(b). Hunting and fishing rights are broader than

“aboriginal titles.”” See F. Cohen, Handbook of Federal Indian Law 442

(1982 ed.) (“{t}he existence of aboriginal hunting and fishing rights .. .

does not necessarily turn upon the existence of original title to lands’’);

id. at 450-51 (discussing off-reservation hunting and fishing rights).

Thus, when Congress “‘includfed]’’ such rights in the scope of Section

4(b), it was extending the scope of the statute.

effect a ‘‘fair and just settlement of all claims by Natives

and Native groups of Alaska, based on aboriginal land

claims.”’ (Reply Memo. p. 104, quoting 43 U.S.C. § 1601(a)).

Where Congress made clear its intention to do away with

all such claims, it would be “perfectly natural’’ to include

the OCS within the phrase “in Alaska,” particularly when

Congress went on explicitly to “‘includ{e] submerged land

... Offshore’’ within the scope of Section 4(b). It was not

“perfectly natural” for the Ninth Circuit to construe Sec-

tion 810(a) of ANILCA—which pertains only to ‘public

lands” and is silent as to the OCSas extending to that

region.’

C. The United States Does Not Assert Title to the OCS.

Neither respondents nor their supporting amici come to

grips with petitioners’ several arguments that the United

States has not asserted ‘“‘title’” to the OCS. Instead, they

advance three patently erroneous arguments in support of

their position.

First, respondents and amici State of Alaska make the

irrelevant point that the term “lands” as used in ANILCA

is broadly defined to include “lands, waters, and interests

therein.”’ (Resp. Br. 23). However, Section 810(a) applies

only to those “‘lands’’ as to which the United States asserts

“title.”” 16 U.S.C. § 3102(2). The United States has never

asserted title to any “lands, waters, [or] interests” on the

OCS (Amoco Lr. 15-19). Instead, as to “‘interests’’ such

‘The State of Alaska cites United States y. Ptasynski, 462 U.S. 74,

77-78 (1983), for the proposition that ‘“‘exempt Alaskan oil’’ under the

windfall profit tax, 26 U.S.C. § 4991(b\(3), includes oil produced on the

Alaskan OCS. However, the statute defines “‘exempt Alaskan oil” gen-

erally as oil produced north of the Arctic Circle, and the Court held

tnat the statutory description of the oil as ‘‘Alaskan’’ is “not entirely

accurate,’’ in part because ‘‘oil produced in certain offshore ... waters

... beyond the limits of any State—is included within the exemption.”

See yeneraily 26 U.S.C. § 4994(e). This suggests that if the statute had

defined “exempt Alaskan oil’’ as oil produced “in Alaska’ the Court

would have held that it did not apply to the OCS.

as fishing or mineral rights it has, in the words of the

recent House report (id. at 16), asserted only ‘‘resources-

related claims of jurisdiction. .. .’”” H.R. Rep. No. 300, 99th

Cong., Ist Sess. 591-92 (1985).

Second, Alaska errs in arguing that the United States

must assert title to OCS oil and gas, since it conveys

leasehold rights that allow exploitation of these minerals.

(Alaska Br. 11-12). However, the grant of a lease to allow

a person to explore for oil and gas does not imply that

the lessor has “‘title’’ to the oil and gas itself. See Ohio

Oil Co. v. Indiana, 177 U.S. 190 (1900).8 Moreover, the

exclusive rights enjoyed by the United States to exploit

the resources of the OCS do not imply that it has title to

them. See United States v. Ray, 423 F.2d 16 (5th Cir.

1970).°

Third, respondents argue that Section 1001 of ANILCA

specifically exempts the OCS from the scope of the study

contemplated by that section and that OCS lands are spe-

cifically excluded from two other federal statutes which

generally apply to federally owned lands. (Resp. Br. 24-

25). Petitioners have previously addressed the Section 1001

argument. (Amoco Br. 13; Hodel Br. 32 n.20). As is there

*In Ohio Oil, this Court, interpreting State law, held that the owner

of a surface estate has no ‘‘title’” to the oil or gas underlying the

surface ‘‘until the substancer are actually reduced by him to posses-

sion.”” A number of important oil-producing States continue to follow

this theory, 1 H. Williams & C. Meyers, Oil and Gas Law § 203.1, at

33 (1985), while others embrace only a “‘qualified’’ ownership theory

regarding title to unproduced oil and gas, id. § 203.2 at 39-44. Only

a minority of oil-producing States recognize ‘“‘title’’ to unproduced oil

and gas. Jd. § 203.3 at 44-50.

*In Ray, the United States carefully avoided an assertion of title to

a submerged reef on the OCS, 423 F.2d at 19 n.3, 21-22, while si-

multaneously seeking an injunction against its use by an unauthorized

party. The court granted the injunction, holding that “neither ownership

nor possession is .. . a necessary requisite for the granting of injunctive

relief.” 423 F.2d at 22.

revealed, Congress’s exclusion of the OCS from the Section

1001 study seems to have been prompted by an abundance

of caution. The same observation can be made about the

other two statutes relied upon by respondents. Congress’

caution in this regard should not be converted into a sub

silentio assertion of title to the OCS for purposes of Sec-

tion 810 of ANILCA.

From the time of the Truman Proclamation to the pres-

ent, Congress has often directly confronted the OCS title

issue and has never asserted United States title to any

lands, waters, or interests in land on the OCS. Nothing

in ANILCA suggests that Congress silently abandoned this

posture and asserted title to the OCS so as to apply AN-

ILCA’s subsistence protection there. To the contrary, Con-

gress’ use of the term “public lands” to define the scope

of ANILCA_and its prior use of that same term in both

the Statehood Act and ANCSA—ANILCA’s direct pred-

ecessors—in contexts which could not possibly apply to the

OCS (Amoco Br. 22-24), clearly demonstrate that Congress

did not intend in ANILCA to assert title to the OCS."

D. ANILCA Is Not a General Subsistence-Protection Stat-

ute.

Contrary to Alaska’s argument (Alaska Br. 17-19), Sec-

tion 810 is not a general subsistence-protection statute. It

applies only when the United States disposes or permits

the use of lands to which it holds title that are situated

in Alaska. Therefore, the Act does not apply to actions

of the federal government that might take place on lands

or waters within three miles of the Alaska coast, since

these lands are owned by the State pursuant to the Sub-

merged Lands Act. Similarly, it does not apply to such

actions on Native-owned lands, where presumably the bulk

‘It is noteworthy that at no point in their briefs do respondents or

Alaska assert that the OCS is part of the “public lands’ under the

Statehood Act or ANCSA.

of subsistence activities occur, or on State or privately

owned onshore lands that are used for subsistence. Thus,

the issue here is not, as Alaska argues (id. at 18), whether

Congress intended to ‘“‘abandon its concern for subsistence

at the three mile line,” since ANILCA does not apply to

the territorial sea nor to adjacent onshore lands where

most subsistence occurs.

There are, of course, other federal statutes that do pro-

tect subsistence within State waters, on Native, State or

private lands, and on the OCS from impacts of federal

activities. Under the National Environmental Policy Act,

42 U.S.C. § 4321 (NEPA), federal agencies must analyze

their actions to assess subsistence impacts. Indeed, in this

case the district court concluded that analysis done under

NEPA evaluated the effects of leasing on subsistence and

alternatives that would reduce or eliminate the impacts of

OCS leasing. (Amoco Br. 7). Moreover, the Endangered

Species Act, 16 U.S.C. § 1531 (ESA), protects important

subsistence species, such as the bowhead and gray whale,

as does the Marine Mammal Protection Act, 16 U.S.C.

§1361. It is these statutes, all of which were complied with

by the Department of the Interior in this case, not AN-

ILCA, that afford broad-based protection of subsistence.

II. THE RESTRICTIONS OF SECTION 810(a)(1)-(3) DO

NOT APPLY TO OCS LEASE SALES THAT ARE

UNLIKELY TO RESTRICT SUBSISTENCE.

tespondents attempt to avoid petitioners’ showing that

ne lower court misapplied Section 810(aX1)(3) in requiring

full leasing-stage compliance with the statute by arguing

that ‘(t]he court of appeals ... ignored the post-sale eval-

uations.’”’ (Resp. Br. 35). However, Village of Gambell v.

Clark, 746 F.2d 57°, 582 (9th Cir. 1984) (Amoco Petn.

A21) (Gambell J), itself recognized that the preparation of

a post-sale ANILCA evaluation might sustain a sale when

it remanded to the district court the question whether ‘‘the

proper remedy is to maintain the status quo unless and

until the Secretary complies with section 810... .’’"' More-

over, in Village of Gambell v. Hodel, 774 F.2d 1414, 1421-

22 (9th Cir. 1985) (Amoco Petn. A34) (Gambell II), the

court noted with apparent approval the Secretary’s prep-

aration of a post-sale ANILCA evaluation for Sale No. 57

and relied on its conclusion that the development and pro-

duction stage of the sale ‘may significantly restrict sub-

sistence uses in certain areas” in holding that the Secretary

must comply with the requirements of Section 810(a\1)-

(3) prior to proceeding with further activities in the Sale

No. 57 area. Respondents cannot, therefore, defend the

decision below on the ground that it properly “ignored the

post-sale evaluations.’’”

'' This is precisely the course of action which the Ninth Circuit fol-

lowed in California v. Watt, 683 F.2d 1253, 1256 (9th Cir. 1982), rev'd

on other grounds, 464 U.S. 312 (1984), when it permitted Interior to

prepare a p-ct-sale consistency determination under the Coastal Zone

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

‘2 The decisions of this Court cited by petitioners in support of their

argument that the courts cannot consider post hoc analyses of admin-

istrative actions are distinguishable. Burlington Truck Lines, Inc. v.

United States, 371 U.S. 156 (1962), and SEC v. Chenery Corp., 332

U.S. 194 (1947), involved the quite different issue of the use of ar-

guments made by counsel to provide a post hoc explanation of agency

action. Camp v. Pitts, 411 U.S. 138 (1973), and Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402 (1971), held that an agency’s

action must be reviewed on the basis of the administrative record;

neither held that the courts can consider only administrative documents

prepared prior to the challenged decision. To the contrary, Overton

Park specifically suggested that the Secretary of Transportation could

prepare post hoc formal findings to provide an explanation of his action.

401 U.S. at 420.

A court exercising judicial review of administrative action “may

adjust its relief to the exigencies of the case in accordance with the

equitable principles governing judicial action.’ Ford Motor Co. v. NLRB,

305 U.S. 364, 373 (1939). Thus, a court which discovers a flaw in an

agency's action is not required immediately to set it aside, if such relief

would have adverse consequences upon the government or third parties.

Instead, the court can identify the agency’s error and remand the

A. Section 810’s Specific Reference to ‘‘Leases’’ Does Not

Sustain the Decision Below.

Respondents’ and the State of Alaska’s emphasis that

Section 810(a) of ANILCA specifically refers to the term

‘lease’ does not rebut our argument. The term “‘lease,”’

like all of the other dispositions of land referred to in

Section 810(a), appears in both of the “tiers” of the sec-

tion. The first “tier” of Section 810(a) requires Interior

to evaluate the impacts of the proposed disposition, the

availability of other lands, and other alternatives, when-

ever the Department proposes to “‘lease”’ or otherwise dis-

pose of land subject to Section 810(a). Petitioners have

never denied that the leasing of all lands subject to the

section must be evaluated pursuant to these first-tier re-

quirements.

The second-tier requirements of Section 810(a)—(1) no-

tice, (2) hearings, and (3) specified findings—are applicable

to “leases” or other dispositions only if they ‘‘would sig-

nificantly restrict subsistence uses.” Clearly Congress did

not intend that every “‘lease’”’ or other disposition referred

to in the second tier of Section 810(a) would be subject

to those requirements. Thus, the issue here is not whether

leasing is subject to Section 810(a)—clearly it is subject to

the first-tier requirements—but instead is whether the spe-

cific leasing proposed by Interior in this case has the type

of effect on subsistence which requires compliance with

the second-tier requirements. '*

proceedings to allow the agency to cure its error through further pre-

ceedings. See, e.g., Western Oil & Gas Ass'n v. EPA, 633 F.2d 803,

813 (9th Cir. 1980); Rodway v. United States Department of Agriculture,

514 F.2d 809, 817 (D.C. Cir. 1975).

'* Contrary to respondents’ assertions (Resp. Br. 37), petitioners do

not take the position that the issuance of a lease can never trigger

the second-tier requirements of Section 810(aX1}(3). Certainly, those

requirements would attach where a federal agency leases land and

relinquishes control over the use of the property, if that action gives

B. Section 810(a)(1)-(3) of ANILCA Should Not Be Inter-

preted in Pari Materia with NEPA.

Respondents argue that, because NEPA requires the

preparation of an impact statement when substantial ques-

tions are raised concerning a project’s impacts on the en-

vironment, there should be full-fledged compliance with

Section 810(aX1)(3) of ANILCA whenever questions are

raised concerning possible impacts upon subsistence. This

argument ignores fundamental differences between Section

810(aX1)}(3) and NEPA.

As noted, petitioners do not dispute that all leasing of

those lands subject to ANILCA must be evaluated pur-

suant to the requirements of the first-tier of Section 810(a).

Like NEPA, that evaluation entails review of the impacts

of the proposed action and consideration of relevant al-

ternatives. However, the second tier of Section 810(a)—

particularly the determinations required by Section

810(aX3) that the project will use the minimal amount of

lands necessary and will not proceed until adequate mit-

igation measures are adopted—goes beyond what Alaska

properly recognizes are the “essentially procedural [re-

quirements of NEPA).’”’ (Alaska Br. 23). Thus, Congress

designed the first tier of Section 810(a), like NEPA, to

apply to all proposed dispositions of public lands, but lim-

ited the scope of the second-tier requirements of the sec-

tion to only those dispositions that ‘‘would significantly

restrict subsistence.’’"*

"rise to a likelihood that subsequent private action on the leased property

would significantly restrict subsistence. It is even possible that those

requirements would arise in a multi-stage leasing setting, if it is es-

tablished that leasing is likely to be followed by significant subsistence

restrictions at later stages. In this case, however, the Interior De-

partment properly found that neither leasing nor exploration would

significantly restrict subsistence and that there is only a 13-14% prob-

abilicxy of reaching the production stage where such restrictions may

occur.

‘* Alaska argues (Alaska Br. 28) that ‘“[wJhere the objective of the

C. The Purposes of Section 810(a) Do Not Require Leasing-

Stage Compliance with Its Second-Tier Requirements

when the Secretary Retains Authority To Regulate All

Subsequent Stages.

Respondents concede that ‘‘the Secretary retains broad

control over exploration, development, and production ac-

tivities under the OCSLA.”’ (Resp. Br. 39). They nonethe-

less contend that “leasing constitutes an irrevocable

commitment of resources’ and a “‘critical’’ stage because

money then changes hands, tracts are leased, and stipu-

lations are adopted bearing upon later operations. (Jd.).

Accordingly, respondents argue that the purposes of Sec-

tion 810(a) can be satisfied only if Interior is forced to

comply, in full, with all of the requirements of that section

prior to authorizing the leasing stage of an OCS project.

This Court considered such arguments in Secretary of

the Interior v. California, 464 U.S. 312 (1984). There, too,

it was argued as the premise tor CZMA compliance at the

leasing stage

“that a lease sale is a crucial step. Large sums

of money change hands, and the sale may there-

fore generate momentum that makes eventual ex-

p oration, development, and production inevit-

able.”” 464 U.S. at 342.

statute is to provide good information ... courts have required that

the project be examined in its entirety rather than piecemeal,” and

cites seven court of appeals opinions, three of which pertain in part

to analysis of projects under the ESA. The ESA, like the second-tier

requirements of ANILCA, imposes substantive restrictions upon leasing.

The three ESA decisions cited by Alaska—North Slope Borough v.

Andrus, 642 F.2d 589, 607-10 (D.C. Cir. 1980); Conservation Law Found.

v. Andrus, 623 F.2d 712, 715 (ist Cir. 1979); and Village of False Pass

v. Clark, 733 F.2d 605, 610-12 (9th Cir. 1984)—all recognized that

Interior is not required at the leasing stage of an OCS project to impose

ESA-motivated restrictions on leasing, but instead has sufficient reg-

ulatory authority to impose such limitations at those later stages which

give rise to a threat of jeopardy to an endangered species.

However, this Court noted the other side of that argu-

ment—

“that ... review at the lease sale stage is at best

inefficient and at worst impossible: Leases are

sold before it is certain if, where, or how explo-

ration will actually occur.” Jd.

The Court concluded that Congress had decided which

side of the argument should prevail by structuring OCS

projects to require CZMA review at exploration and pro-

duction and by limiting CZMA review of federal activities

to those which “‘directly affect{]’’ the coastal zone. Thus,

notwithstanding claims that leasing is a ‘‘crucial step,’’ the

Court held that it was not subject to the CZMA.

For the same reasons, OCS leasing is not subject to the

second tier of ANILCA. Just as the CZMA provides for

subsequent review at later stages of an OCS project which

might give rise to effects within the purview of the statute,

Section 810(a) of ANILCA clearly applies to all later stages

of multi-stage projects. Accordingly, it cannot be held that

leasing ‘‘would significantly restrict subsistence’’ merely

because of the presently remote prospect that subsistence

restrictions may occur at a later stage. Assuming arguendo

that ANILCA applies to OCS sales, its purposes can be

fully realized by applying the second-tier requirements of

Section 810(a) prior to any stage that ‘‘would significantly

restrict subsistence.”’

Ill. THE NINTH CIRCUIT’S RULING IN GAMBELL

I SHOULD NOT BE APPLIED RETROACTIVELY.

Respondents’ only answer to petitioners’ showing that

Gambell I should not be applied retroactively under this

Court’s decisions in Chevron Oil Co. v. Huson, 404 U.S.

97 (1971), City of Los Angeles Department of Water and

Power v. Manhart, 435 U.S. 702 (1978), and other cases

is to point out that a legal challenge to Sale No. 57 was

filed prior to the conduct of either that sale or of Sale

No. 83. However, the Huson test for determining the ret-

roactive application of a new interpretation of a statute

does not turn upon whether a complaint was filed prior

to a challenged transaction. While the third prong of that

test—whether a retroactive application of a new decision

would involve inequities—would seem to allow considera-

tion of the timing of a complaint, neither Huson nor any

other decision of this Court suggests that the prior filing

of a complaint per se tips the equities in favor of plaintiffs.

Sale Nos. 57 and 83 were not conducted until after a

district court had rejected respondents’ theory that AN-

ILCA applies to the OCS and a motions panel of the Ninth

Circuit had permitted the consummation of Sale No. 57.

In these circumstances, the equities lie with the industry

petitioners who were forced either to cast their bids at

the two sales or to lose for all time their opportunity to

do so.'®

' Indeed, in Manhart the Court refused to disturb any part of the

pension plan which was attacked by plaintiffs, including the adminis-

tration of those monies in the plan accumulated since the filing of the

plaintiffs’ complaint.

'* Respondents’ reliance upon their Sale No. 57 complaint, whatever

its relevance to the equities as to that transaction, does not justify a

retroactive application of Gambell I to Sale No. 83. That sale proceeded

without any litigation challenge, so that respondents’ lis pendis argu-

ment (Resp. Br. 50) does not apply to it. Moreover, the Sale No. 57

complaint applied only to those portions of the OCS that are used by

Native Alaskans and thus are subject to their claims of aboriginal title.

Respondents have never contended that they use any portion of the

remote Navarin Basin affected by Sale No. 83. Moreover, in their brief

in this Court they have conceded that Interior may continue to lease

“those substantial [OCS] areas not historically used by Alaska’s Native

peoples.”’ (Resp. Br. 21). Thus, when Sale No. 83 took place, there was

no reason to believe that respondents or anyone else would assert that

ANILCA applies to the Sale No. 83 area.

IV. THE NINTH CIRCUIT’S PER SE INJUNCTIVE

RELIEF RULE IS INCONSISTENT WITH THE

COURT’S DECISION IN WEINBERGER vv.

ROMERO-BARCELO.

Both of the petitions in this case sought this Court’s

review of Gambell II’s articulation of the “‘Ninth Circuit

rule” that a “‘substantive [sic? substantial] procedural vi-

olation” of an environmental statute per se justifies the

grant of an injunction, except in “rare” circumstances

where the injunction would harm the environment or in-

terfere with a very limited class of long-term contracts.

In briefing this question, petitioners cited this Court’s rec-

ognition in Weinberger v. Romero-Barcelo, 456 U.S. 305,

313 (1982), that Congress can restrict courts’ equitable

discretion to den; injunctive relief, but pointed out that

the Ninth Circuit had not analyzed ANILCA to determine

whether it did so. (Amoco Br. 43-44). Instead, petitioners

demonstrated that the Ninth Circuit had attempted to dis-

tinguish Weinberger because it allegedly presented only a

narrow question regarding the Clean Water Act. (Jd. at

44).

Respondents do not even attempt to defend this dis-

tinction of Weinberger.’ Instead, they contend that

“{wJhether the court of appeals relied on a per se rule in

this case is subject to question” (Resp. Br. 41), and then

go on to argue that either the application of “traditional

' Respondents do argue that petitioners conceded in Gambell I that

an injunction should issue pending Interior’s compliance with ANILCA

(Resp. Br. 40-41), thus suggesting that they are now estopped from

challenging the Ninth Circuit’s Gambell I] injunction. However, the very

documents attached by respondents to their brief show that petitioners

qualified their argument in Gambell I by citing Weinberger and making

clear that an injunction would be appropriate only “‘if irreparable harm

is shown.” (Resp. Br. 7a; see also id. at 6a).

equitable principles” or an analysis of ANILCA justifies

the court of appeals’ reversal of the district court.”*

In arguing this latter point, respondents admit that

“{w]hether a given statute divests the courts of

equitable discretion depends upon its language

and purposes.” (Resp. Br. 45).

They concede that this case requires a “particularized in-

quiry into [ANILCA’s] language and purposes.” Jd. The

amici supporting respondents go even farther. They admit

that “{iJn most instances, Congress does not foreclose .. .

discretion’ (States Br. 9) and stress that an appropriate

assessment of the propriety of the Ninth Circuit’s reversal

of the district court here requires a close reading of the

terms and legislative history of ANILCA. (Jd. at 13-17;