Opposition Brief — Amoco Production Co. v. Village of Gambell

F or Supreme Court, U.S,

Nos. 85-1239, 85- JUN S&S 100

. |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

DONALD P. HoDEL, SECRETARY OF THE INTERIOR; and

THE UNITED STATES DEPARTMENT OF THE INTERIOR,

AMOCO PRODUCTION COMPANY, et al.,

Petitioners,

Vv.

PEOPLE OF THE VILLAGE OF GAMBELL, et al.,

Respondents.

BRIEF IN OPPOSITION TO

PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

*DONALD S. COOPER

’ James A. BAMBERGER

CAROL H. DANIEL

Alaska Legal Services Corporation

550 West 8th Avenue, Suite 300

Anchorage, Alaska 99501

(907) 276-6282

Attorneys for Res, ondents

*Counsel of Record

TABLE OF CONTENTS

STATEMENT OF THECASE ...........-6 00sec eee l

REASONS FOR NOT GRANTING THEWRIT......... 16

1 THISCASEISA TEMPESTINA TEACUP ....... 16

Il THE PETITIONS ARE UNTIMELY TO THE

EXTENT THEY SEEK REVIEW OF THE

DECISION THAT THE CONSERVATION

ACT APPLIES TO OCS LEASING .......--+++++: 19

lll THE PETITIONERS CANNOT COMPLAIN

ABOUT AN INJUNCTION WHICH ISSUED

AT THEIR REQUEST .... 22... 00 eeeseeceeeees 23

1V THE COURT OF APPEALS DID NOT ADOPT

A PER SE INJUNCTION RULE... 0.6000 e eee ees 25

VY THE LOWER COURT’S DECISION THAT

THE CONSERVATION ACT APPLIES

AT THE LEASING STAGE DOES NOT

PRESENTA SERIOUS LEGAL QUESTION.......- 29

VI THIS CASE DOES NOT INVOLVE A

RETROACTIVE APPLICATION

OF THE CONSERVATION ACT ....... 00000020055 32

CONCLUSION .n ccc ccc ccc ccc ccc cccecreccceccceees 33

TABLE OF AUTHORITIES

CASES Page

Adickes v. S.H. Kress & Co., 398 U.S. 144(1970) ...... 21

Alaska v. Andrus, 580 F.2d 465 (D.C. Cir.), vacated in

part as moot sub nom. Western Oil and

Gas Association v. Alaska, 439 U.S. 922 (1978) ...... 27

Alaska v. Udall, 420 F.2d 938 (9th Cir. 1969). .........- 6

Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . 27

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) .......-- 32

Chicago & Western Indiana R.R. Co. Vv. Motorship

Buko Maru, 505 F.2d 579 (7th Cir. 1974) .........++- 21

Citizen Advocates for Responsible Expansion v. Dole,

770 F.2d 423 (Sth Cir. 1985)... 2... eee ee ee ee ee eee 27

Conservation Law Foundation v. Andrus,

623 F.2d 712 (Ist Cir. 1979) ... 2... cee eee eee eens 30, 33

County of Suffolk v. Secretary of the Interior,

$62 F.2d 1368 (2d Cir. 1977), cert. denied,

434 U.S. 1064(1978) 2.0... cece cece ee ee eee e eens 30

Dandridge v. Williams, 397 U.S. 471 oo ae 21

Duignan v. United States, 274 U.S. 195 TD cccosenss 21

Falk v. Brennan, 414 U.S. 190 (1973) .....-- 0 eee eee eee 22

Foundation on Economic Trends v. Heckler,

756 F.2d 143 (D. C. Cir. 1985) ... 2... eee eee eee eee 27

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

240 U.S. 251 (1916) 2... cece ee eee eee eee eens 22

Hanover Shoe, Inc. v. United Shoe Machinery Corp.,

392 U.S. 481 (1968) ....--- cece creer reer eer eee 22

Hankerson v. North Carolina, 432 U.S. 233 (1977) ..... 21

Husty v. United States, 282 U.S. 694(1931) ...-.-+-+-: 21

Inupiat Community of the Arctic Slope v.

United States, 548 F. Supp. 182 (D. Alaska 1982),

aff’d on other grounds, 146 F.2d 570 (9th Cir. 1984),

cert. denied, ___ U.S.___., 106. Ct. 68 (1985)..... 11, 13

Kunaknana vy. Clark, 742 F.2d 1145 (9th Cir. 1984) .....- 18

Langnes v. Green, 282 U.S. 531 (1931)... - ee eee ee eee’ 21

Lawn v. United States, 355 U.S. 339 (1958). .....---6:: 21

Massachusetts v. Andrus, 594 F.2d 872 (ist Cir. 1979) ... 30

Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1983) ....- 27, 30

Massachusetts Mutual Life Ins. Co. v. Ludwig,

426 U.S. 479 (1976) ... eee cece cere rere reer 21

Native Village of Allakaket v. Hickel,

Civil No. 705-70 (D. D.C..1970) ..---.+++-eeeeerree 6

North Slope Borough v. Andrus,

486 F. Supp. 326(D. D.C. 1979) ....--+-++eeeerrees 33

North Slope Borough v. Andrus,

642 F.2d 589 (D.C. Cir. 1980) ...---- 00ers rere 30

Reece v. Georgia, 350 U.S. 85 (1955) ....-++-+++s5805° 22

Secretary of the Interior v. California,

A464. U.S. 312 (1984) .... 22 cece e cere rere recente 29

Sierra Club v. Morton, 510 F.2d 813 (Sth Cir. 1975) ....

Sierra Club v. United States Army Corps

of Engineers, 701 F.2d 1011 (2d Cir. 1983) ..........

Toledo Scale Co. v. Computing Scale Co.,

BEE Wt POET oc Whasemiveeseascccccccccess

TVA v. Hill, 437 U.S. 183 (1978) «2.2.0... eee eee eee

United States v. City and County of San Francisco,

SOU Bc BOGGS o cvigncedeccccsccetvcusvccces

United States v. City of Painesville,

University of Texas v. Camenisch, 451 U.S. 390 (1981) ..

Village of False Pass v. Clark,

733 F.2d 605 (9th Cir. 1984)... . 2.0.6... ee eee ee eens

Village of Gambell v. Clark,

746 F.2d 572 (9th Cir. 1984)... 2... ee eee eee ee eee

Village of Gambell v. Hodel,

774 F.2d 1414 (9th Cir. 1985)... 2... eee cece eee

Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982) ...........-. _ PR ee

Wisconsin v. Weinberger, 745 F.2d 412

(8 5 eer errr Terre Te

Youngberg v. Romeo, 457 U.S. 307 (1982) ...........

STATUTES

Alaska National Interest Lands Conservation Act,

16 U.S.C. § 3101 ef Seq. ..--- cece eeerrerrrerrrtt passim

Alaska Native Claims Settlement Act,

43. U.S.C. § 1601 ef Seg. ..-.- eee e eee e rere passim

Indian Reorganization Act, 25 U.S.C. § 461 ef seq. ...-- 2

LEGISLATIVE MATERIALS

S. Rep. No. 413, 96th Cong., 2d Sess.,

reprinted in 1980 U.S. Code Cong. &

Ad. News 5070 0)... ccccccccccccressccceseseeees 9

S. 835, 92d Cong., Ist Sess. (1971)... +--+ errr errr eee 8

H.R. 7039, 92d Cong., Ist Sess. (1971) «0... eee ee eees 8

H. Conf. Rep. No. 746, 92d Cong., ist Sess.,

reprinted in 1971 U.S. Code Cong.

& Ad. NewS 2247 ......--eeeeeeeeereresereestee 8

MISCELLANEOUS

Anchorage Daily News, April 29, 1986 .....---++++++5 17

M.C. Berry, THE ALASKA PIPELINE:

THE POLITICS OF OIL AND NATIVE

CLAIMS (1975)... ccccccccccccsceccssseresseees 7

N. Chance, THE ESKIMO OF

NORTH ALASKA (1966) ....- 55+ see e eee? POPC RS 3

D. Case, ALASKA NATIVES AND AMERICAN

LAWS (1964) .....-ccccccrcccnccccesseseseserers 2, 6

A. Fienup-Riordan, NAVARIN BASIN

SOCIOCULTURAL SYSTEMS ANALYSIS,

Alaska OCS Socioeconomic Studies Program,

Technical Report No. 70 (January En wucdccecces 4

J. Hanrahan and P Gruenstein, LOST FRONTIER:

J. Jorgensen, EFFECTS OF RENEWABLE RESOURCE

HARVEST DISRUPTIONS ON SOCIOECONOMIC AND

SOCIOCULTURAL SYSTEMS: NORTON SOUND,

Alaska OCS Socioeconomic Studies Program

Technical Report No. 90 (January | ee 5

R. Little and L. Robbins, EFFECTS OF RENEWABLE

RESOURCE HARVEST DISRUPTIONS ON

SOCIOECONOMIC AND SOCIOCULTURAL

SYSTEMS: ST. LAWRENCE ISLAND,

Alaska OCS Socioeconomic Studies Program,

Technical Report No. 89 (June 1984) ......---+++++- 3, 4,5

R. Nelson, HUNTERS OF THE NORTHERN ICE (1969) ... 2, 3

Plater, Statutory Violations and Equitable Discretion,

10 Cal.L.Rev. 524 (1982). ....---ee cece cece errr 27

State of Alaska House Research Agency,

PERSONAL INCOME IN THE LOWER

YUKON-KUSKOKWIM REGION (1982) ....--- eee eee 4

U.S. Department of the Interior,

FINAL ENVIRONMENTAL IMPACT STATEMENT:

PROPOSED OUTER CONTINENTAL SHELF

OIL AND GAS LEASE SALE 57,

NORTON SOUND (1982) ....--00ceeee eee ee reeeeee 4,5

Wall Street Journal, March 12, 1986 .....------+++++5 10

R. Wolfe, AN ECONOMIC ANALYSIS OF FOOD

PRODUCTION IN A WESTERN ALASKA

COMMUNITY (August 1977) .... 6-6. -ee eer ee eeee 5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

Nos. 85-1239, 85-1406

DONALD P. HoDEL, SECRETARY Or THE INTERIOR; and

THE UNITED STATES DEPARTMENT Or THE INTERIOR,

AMOCO PRODUCTION COMPANY, et al.,

Petitioners,

v.

PEoPLE Or THE VILLAGE Or GAMBELL, et al.,

Respondents.

BRIEF IN OPPOSITION TO

PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

The tribal village of Gambell, the tribal village of Stebbins, and

Nunam Kitlutsisti oppose the petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the

Ninth Circuit in this case.

STATEMENT OF THE CASE

This case involves the hunting and fishing rights of Alaska’s

aboriginal people. The plaintiffs, here the respondents, seek to

ensure that the statutory and common law protections for these

rights are applied fairly and consistently. Three in number, they

are the tribal village of Gambell, the tribal village of Stebbins, and

Nunam Kitlutsisti. The tribal villages of Gambell and Stebbins

are federally recognized Indian Tribes organized under section 16

of the Indian Reorganization Act, 25 U.S.C. § 476. The village of

Gambeltis located on St. Lawrence Island, an island located near

the Soviet Union in the Bering Sea. The village of Stebbins is

located on the northeastern shore of the Yukon River Delta,

bordering Norton Sound. Nunam Kitlutsisti is an intertribal

organization representing 56 villages in the Yukon-Kuskokwim

Delta. Literally the ‘‘defender of life and land,’’ its purpose is to

promote and protect the traditional hunting and fishing rights of

its members.

All legal questions presented by this case involve two statutes.

One is the Alaska Native Claims Settlement Act.' The other is

Title VIII of the Alaska National Interest Lands Conservation

Act.? Both affect the hunting and fishing rights of Alaskan

Natives. The Claims Settlement Act extinguished Alaska Native

aboriginal hunting and fishing rights ‘tin Alaska.”’ Title VILi of

the Conservation Act protects the hunting and fishing rights

extinguished by the Claims Act. Described as a “ ‘settlement’ of —

the Alaska Native aboriginal hunting and fishing rights seeming-

ly extinguished by ANCSA,’”’ the Conservation Act protects

Native hunting and fishing rights ‘‘in Alaska.”’

That these issues arise in a challenge to two OCS lease sales is

both fitting and proper in light of the extensive use of sea areas

by Alaska’s aboriginal people. For about half the year, water up

to 65 miles from the Arctic coast is frozen solid. During this

period the Eskimo treat the ice as a mere extension of land. They

build roads on-the ice. They set up camps on it. Most impor-

tantly, they hunt and fish on it.* In fact, the ice and-water have

' Act of Dec. 18, 1971, Pub. L. No. 92-203, 85 Stat. 688, codified at 43

U.S.C. § 1601 et seq.

? Act of Dec. 2, 1980, Title VIII, Pub. L. No. 96-487, 94 Stat. 2371, codified

at 16 U.S.C. § 3101 ef seq.

> D. Case, ALASKA NATIVES AND AMERICAN Laws 299 (1984).

«R. Nelson, HUNTERS OF THE NORTHERN Ice (1969).

traditionally yielded more resources to the Eskimo than the land.

Along the Arctic coast the land is largely devoid of trees and

other natural resources which can be used for housing or fuel. As

a result, the Eskimo have relied on the sea to provide them with

most of their food, clothing, fuel, and the basic materials for

making hunting equipment such as kayaks and harpoons.’ Im-

mensely important, the sea is so central to the Eskimo that they

recognize no sharp distinctions between land and water.

The hunting and fishing which occur in the coastal ice and

water are critical to the well being of Alaskan Natives. Although

the thought of fishing and hunting for one’s sustenance may bea

quaint anachronism for an industrial society, in rural Alaska it is

a daily reality. There, cultural forces and lack of integration into

the Western cash economy join together to make subsistence

hunting and fishing the prime focus of life.

Subsistence is loosely defined as the harvest of wild resources

to provide food and raw materials for personal use, sharing, and

distribution to kin, in accordance with established custom and

tradition.* A cyclical process, it begins when Alaskan Natives

harvest fish and game. It continues as they directly consume it,

share it, exchange it on local trade networks, or sell it for cash.

Cash is then used to buy hunting and fishing equipment, with the

process being completed when that equipment is used in further

harvesting efforts. Large mammal hunting communities, such as

Gambell and Savoonga on St. Lawrence Island, also obtain the

cash needed to pursue their subsistence activities through the

carving and sale of marine mammal by-products including whale

bone, walrus ivory and oosiks, and baleen.’

Subsistence activities are indispensable to the economic well-

being of the Native inhabitants of western Alaska and the Bering

’ Id.; N. Chance, THE Eskimo Or NorTH ALASKA 9 (1966).

* See R. Little and L. Robbins, Errects OF RENEWABLE RESOURCE

HARVEST DISRUPTIONS ON SOCIOECONOMIC AND SOCIOCULTURAL SYSTEMS:

St. LAWRENCE ISLAND, Alaska OCS Socioeconomie Studies Program,

Technical Report No. 89 (June 1984) (hereafter LITTLE AND RosBins). See also

16 U.S.C. § 3113 (defining ‘‘subsistence uses’’ for the purposes of the Conser-

vation Act).

? LITTLE AND ROBBINS at 291-92.

Sea region. Rural Native Alaskans have little access to the cash

economy. Few can find jobs, for industry does not exist. Cash

incomes must come from occasional wages, state or federal

transfer payments, or a combined strategy in which one member

of the family works while another hunts and fishes.’

Although Natives in rural Alaskan communities have limited

incomes, living in the Bush is very expensive. The high cost of

living is largely attributable to transportation costs. Distances

between villages and regional centers are great; roads do not

exist; weather conditions range between harsh and impossible.

Goods must be transported by airplane or barge over great

distances in inclement weather. Both methods are extremely

expensive, and barges cannot operate in winter months when

ports are frozen shut.

The net result of low incomes and a high cost of living is

' poverty. Native Alaska constitutes a Third World within the

United States. Many Native Alaskans are fluent only in their

native tongue, and most live under conditions unknown else-

where in the United States. The poverty here is broad and deep.

In 1978, the per capita income in the Norton Sound region

(Wade Hampton) was only 16% of the average United States per

capita income.'° In practice, this poverty translates into a lack of

social amenities such as bathrooms, running water, telephones,

and standard housing.

Alaskan Natives have traditionally relied upon subsistence

hunting and fishing te overcome this lack of economic opportu-

nity. Because Alaskan Natives cannot afford to buy food, they

must catch or kill it. Most western Alaskan Natives depend on

the subsistence harvest of fish, marine mammals, birds, whales,

* See generally LiTTLE AND Rossins; A. Fienup-Riordan, NAVARIN BASIN

SOCIOCULTURAL SYSTEMS ANALYSIS, Alaska OCS Socioeconomic Studies

Program, Technical Report No. 70 (January 1982).

* See, e.g., State of Alaska House Research Agency, PERSONAL INCOME IN

THE LOWER YUKON-KUSKOKWIM REGION.

‘© U.S. Department of the Interior, FINAL ENVIRONMENTAL IMPACT STATE-

MENT: PROPOSED OUTER CONTINENTAL SHELF Oi1L AND GaS LEASE SALE 57,

NorTON SOUND (1982) (hereafter FEIS) at Table I11.B.4.13. ,

and other foods found locally, as their ancestors did for as long

as the region has been humanly occupied.''

The importance of subsistence hunting and fishing to the

economic viability of rural Native Alaskan communities can be

understood by comparing cash incomes to the value of sub-

sistence harvests. The value of food secured by subsistence hunt-

ing and fishing frequently exceeds cash incomes. In 1976, the

annual value of a subsistence harvest for a family of four in

western Alaska was $13,000. At the same time, the average cash

income for the same family was approximately $5,263.'? As this

example indicates, Alaskan Natives could not feed their families

should their subsistence activities be significantly disrupted.

In addition to its economic importance, subsistence hunting

and fishing is central to the Eskimo’s cultural survival.'? To an

Eskimo, language, culture, spiritual beliefs, customs, and

respect for others and for oneself are all tied into a holistic world-

view centered around the traditional hunting, fishing, and

gathering way of life.'* Hunting and fishing, sharing the harvest

with family and fellow villagers, and acting as a harmonious part

of the ecosystem are critical life activities.'* Because subsistence

is crucial, moderate or large-scale disruptions of subsistence

activities are likely to result in significant adverse changes in the

cultural well-being and stability of western Alaskan Native

communities. '*

'' FEIS at 47-48.

'2 R. Wolfe, AN ECONOMIC ANALYSIS OF FOOD PRODUCTION IN A WESTERN

ALASKA COMMUNITY 23 (August 1977).

N

'? FEIS at 48-49.

'* Id.

'S Id.

'® LitTLE AND Rossins at Chapter XV; J. Jorgensen, Errects OF

RENEWABLE RESOURCE HARVEST DISRUPTIONS ON SOCIOECONOMIC AND

SOCIOCULTURAL SYSTEMS: NORTON SOUND, Alaska OCS Socioeconomic

Studies Program, Technical Report No. 90 (January 1984) at 327-354; Village

of Gambell v. Hodel, 774 F.2d 1414, 1425 (9th Cir. 1985).

Congress has historically recognized the importance of sub-

sistence harvests for Alaskan Natives.'’ This concern has been

most recently expressed in Title VIII of the Conservation Act, a

statute whose genesis can be traced to the Alaska Statehood Act.

Passed in 1959, the Statehood Act provided that the State of

Alaska could select up to 102.5 million acres of land — more than

one-fourth of the State’s 375 million acre land area.'* Although

the Statehood Act expressly provided that it would not affect

existing Native claims, the expectations were that many of the

State’s selections would include traditional Native hunting and

fishing grounds and that the State’s selection process would de

facto eliminate Native claims.'°

Spurred into action by the Statehood Act, Native groups

formed the Alaska Federation of Natives (AFN) in 1966. Upon

formation, the AFN convinced Secretary of the Interior Stewart

Udall to freeze state land selections until such time as the Native

land claims were resolved. The freeze was upheld by the Court of

Appeals for the Ninth Circuit in Alaska v. Udall, 420 F.2d 938

(9th Cir. 1969). It was continued under the Nixon administration

by Secretary of the Interior Walter Hickel.?°

Discovery of the Prudhoe Bay oilfield ultimately precipitated a

settlement of Native land claims. When oil was discovered on the

North Slope in 1965, the oil companies believed they needed a

Trans-Alaska oil pipeline to get the oil to market. Their initia!

attempts to construct the pipeline were blocked, first by an

environmental lawsuit and then by a suit filed by the Alaskan

Natives. Native Village of Allakaket v. Hickel, Civil No. 705-70

(D. D.C. 1970). In this latter case, the District Court for the

District of Columbia ruled that an Alaskan Native Indian

Reorganization Act Association held possessory claims to land in

the Yukon River Valley based on aboriginal hunting and fishing

'? See D. Case, ALASKA NATIVES AND AMERICAN Laws at Ch. 7 (1984).

‘* J. Hanrahan and P Gruenstein, Lost FRONTIER: THE MARKETING OF

ALASKA 94 (1977).

'* Id.

° Id. at 95.

rights, and that the Secretary of the Interior could not lease or

otherwise dispose of that land without the Natives’ consent.

A land claims settlement quickly followed this decision. Once

the oil companies realized they could not build a pipeline without

first settling the issue of Native claims, they lobbied heavily for

an Alaskan Native land claims settlement.?' With the support of

the Nixon administration, but in the face of opposition from

various environmental organizations, the oil industry and the

Alaskan Natives secured the passage of the Alaska Native Claims

Settlement Act in 1971.”

The heart of the Claims Act was the establishment of thirteen

regional corporations and various village corporations. The Act

awarded the regional and village corporations three major forms

of compensation: a monetary settlement; rights to future

payments from oil, gas, and mineral leases; and 40 million acres

of unallocated federal lands. 43 U.S.C. § 1603; Village of

Gambell v. Clark, 746 F.2d 572, 578-79 (9th Cir. 1984).

The quid pro quo was that Congress extinguished all Native

claims ‘‘in Alaska.’’ Sections 4(a), 4(b), and 4(c) of the Claims

Act provide:

(a) All prior conveyances of public land and water areas in

Alaska, or any interest therein, pursuant to Federal law,

and all tentative approvals pursuant to section 6(g) of the

Alaska Statehood Act, shall be regarded as an extin-

guishment of the aboriginal title thereto, if any.

(b) All aboriginal titles, if any, and claims of aboriginal

title in Alaska based on use and occupancy, including

submerged land underneath all water areas, both inland

and offshore, and including any aboriginal hunting or

fishing rights that may exist, are hereby extinguished.

(c) All claims against the United States, the state, and all

other persons that are based on claims of aboriginal right,

title, use, or occupancy of land or water areas in Alaska, or

2! M.C. Berry, THE ALASKA PIPELINE: THE PoLitics Or Oil AND NATIVE

CLAIMS 23, 163 (1975).

#2 J. Hanrahan and P Gruenstein, supra, at 95.

that are based on any statute or treaty of the United States

relating to Native use and occupancy, or that are based on

the laws of any other nation, including any such claims that

are pending before any Federal or state-court or the Indian

Claims Commission, are hereby extinguished.

43 U.S.C. §§ 1603(a), (b), and (c) (emphasis added).

The passage of the Claims Act was not expected to end federal

protection of Native fishing and hunting rights. The land claims

settlement was generous, but it had little relevance to most

Alaskan Natives whose daily life revolved around hunting and

fishing.*? Recognizing this fact, Congress instructed the State of

Alaska and the Secretary of the Interior to protect the sub-

sistence needs of the Alaskan Native population.**

The protections did not materialize. Neither the Secretary nor

the State of Alaska moved to protect the subsistence needs of

Alaskan Natives. As a consequence, Congress was forced to act.

It remedied the Secretary’s and the State’s misfeasance in 1980.

Resurrecting language earlier deleted from drafts of the Claims

Settlement Act,’ it included in Title VIII of the Alaska National

Interest Lands Conservation Act procedural -and substantive

protections for subsistence fishing and hunting.

The Senate Committee Report accompanying the Conserva-

tion Act describes why the statutory protections for subsistence

hunting and fishing previously dropped from the Claims Settle-

ment Act had to be placed in the Conservation Act. The report

provides:

OVERVIEW

Alaska’s more than 200 rural villages are unique in

that they are the last communities in the United States

** Id. at 109.

** H. Conf. Rep. No. 746, 92d Cong., Ist Sess. 37, reprinted in 1971 U.S.

Code Cong. & Ad. News 2247, 2250.

** Compare S. 835, 92d Cong., Ist Sess. § 16(b)(1) (1971) and H.R. 7039, 92d

Cong., Ist Sess. § 16(b)(1) (1971) with 16 U.S.C. § 3120.

in which a substantial number of residents are still

dependent upon the harvest of renewable resources on

the public lands for their sustenance. The importance

of subsistence uses of such resources to the physical,

economic and cultural well-being of Alaska Natives

and other rural residents has been exhaustively

chronicled in testimony presented at hearings, town

meetings and workshops held by the committee during

consideration of both the Alaska Native Claims Settle-

ment Act and the Alaska National Interest Lands

Conservation Act. The committee notes that the

report of the Committee on Interior and Insular

Affairs of the House of Representatives on H.R. 39

(House Report No. 95-1045, Part I, pp. 181-187)

documents the importance of such uses in consider-

able detail.

HISTORY OF CONCERN

The Committee has had a long-standing concern for

the protection of subsistence resources and uses in

Alaska. In Section 21 of S.35, the Senate version of the

Alaska Native Claims Settlement Act, the Secretary

was directed to establish subsistence zones on the

public lands, and, in circumstances in which subsist-

ence resources or uses were threatened, to exercise his

closure authority by prohibiting all consumptive uses

of such resources within a zone except for subsistence

uses by Alaska Natives. The conferees failed to adopt

this provisidn in the conference report; however, the

statement of the managers clearly established the

intent of the Congress that the Secretary exercise his

closure authority in a manner consistent with the

purposes of Section 21.

S. Rep. No. 413, 96th Cong., 2d Sess. 230-31, reprinted in 1980

U.S. Code Cong. & Ad. News 5070, 5174-75. ,

Title VIII implements this long-standing Congressional con-

cern by providing a systematic and comprehensive scheme for

protecting the hunting and fishing rights of Alaskan Natives.

10

The Act declares that ‘‘the utilization of the public lands in

Alaska is to cause the least adverse impact possible on rural

residents who depend upon subsistence....’’ 16 U.S.C. § 3112(1).

It states that all leasing and other land use decisions must allow,

to the maximum extent possible, ‘‘the opportunity for rural

residents engaged in a subsistence way of life to do so.’’/d. To

achieve these ends, the statute requires federal land managers to

carefully evaluate the impact of leasing on subsistence uses and

resources, and to identify alternative land selections before

making any leasing decisions. 16 U.S.C. § 3120(a). For leasing

that might significantly restrict subsistence activities, the land

manager, before issuing any leases, must insure that: (1) the re-

striction is necessary; (2) the leasing involves the minimal amount

of public land; and (3) reasonable steps will be taken to minimize

adverse impacts on subsistence uses and resources. 16 U.S.C. §

3120(a)(1)-(3).

Congress insured that the protections provided by the Conser-

vation Act would be widely available. The Act applies to all con-

ceivable federal interests, placing ‘‘lands, waters, and interests

therein’’ under its umbrage. 16 U.S.C. § 3102(1). The geographic

coverage is similarly broad. Mirroring and applying co-

extensively with the Claims Settlement Act from which it was

derived, the Conservation Act protects all federal lands ‘‘in

Alaska.’’ 16 U.S.C. § 3102(3).

After Congress passed the Conservation Act in 1980, Alaskan

Natives expected that Secretary Watt would heed its statutory

directives and take the steps necessary to insure that their sub-

sistence uses would not be unreasonably compromised. Their

expectations were destined to be disappointed. Rather than

addressing the subsistence uses and needs of Alaskan Natives,

Secretary Watt proceeded to ignore them. His attitude was illus-

trated by his reaction to suggestions that OCS leasing might

seriously disrupt the subsistence activities of Alaskan Natives.

Responding to these concerns, he adamantly insisted that

**35,000 people on the edge of the world”’ would not influence

his plans to lease the Alaskan OCS.**

** The Wall Street Journal, March 12, 1986, at 64.

ll

In practice, Secretary Watt expressed his refusal to consider

the subsistence uses of Alaskan Natives in connection with his

OCS leasing program in an inconsistent and unfair application of

Title VIII of the Conservation Act and Section 4(b) of the Claims

Settlement Act. The inconsistency began in Jnupiat Community

of the Arctic Slope v. United States.*’ There, Inupiat Eskimo

asserted aboriginal title to OCS lands which they had traditional-

ly used and occupied. To defeat these aboriginal claims,

Secretary Watt and the oil companies took the position that the

Claims Settlement Act abolished aboriginal hunting and fishing

rights outside the territorial waters of the State of Alaska. Claim-

ing that the term ‘‘in Alaska’’ comprehended the OCS and

included all lands lying between the high tide mark and the two

hundred mile limit, the Secretary argued that a technical inter-

pretation restricting the term ‘‘in Alaska’ to anything less than

the two hundred mile limit would be ‘‘tortured.’’ The oil com-

panies — also parties in that case — alleged that Congress had

intended the phrase to be geographically descriptive and that

such a use was ‘‘a perfectly natural one.”’

After adopting the position that the Claims Act applied to the

OCS, Secretary Watt then proceeded to openly ignore the

requirements of Title VIII. His theory was premised on the

assumption — remarkable in light of the position taken in

Inupiat Community — that the Conservation Act could not be

interpreted as extending beyond the State’s territorial waters.

Without holding hearings or otherwise opening the administra-

tive process to any public comment, he concluded that the term

‘tin Alaska”’ was technically descriptive and did not apply to the

Ocs.

The tribal villages of Gambell and Stebbins called into ques-

tion Interior’s attempt to create a gap in the protections for the

subsistence uses of Alaskan Natives when they filed this case on

March 4, 1983. Their claim was simple. The term ‘‘in Alaska’’

had to be construed consistently and fairly. As used in two sister

statutes — the Claims Settlement Act and Title VIII of the Con-

servation Act — the term was either geographically or technically

2” §48 F Supp. 182 (D. Alaska 1982), aff'd on other grounds, 746 F.2d 570

(9th Cir. 1984), cert. denied, ____ U.S. ___., 106 S. Ct. 68 (1985).

12

descriptive. If geographically descriptive, Title VIII applied to

OCS leasing. If technically descriptive, Alaskan Natives retained

their aboriginal hunting and fishing rights beyond the State’s

territorial waters because such rights had not been extinguished

by the Claims Settlement Act.

The suit placed Interior and the oil companies in the impos-

sible position of justifying an illogical and inconsistent applica-

tion of an identical term in two sister statutes. Their resulting

responses lacked grace. Before the tribal villages filed Gammbell /,

the Secretary and the oil companies had vigorously contended in

Inupiat Community that it was ‘‘clear and unambiguous’’ that

the phrase ‘‘in Alaska’’ referred to a geographic area lying be-

tween the high tide mark and the two hundred mile limit. After

Gambell I was filed, they contended that the phrase could not

possibly have that meaning, and that it was — of all things —

‘clear and unambiguous”’ that the term referred to a limited

geographic area lying between the three mile limit and the high

tide mark.

On appeal, Secretary Watt and the oil companies found

themselves in the awkward position of presenting contradictory

reasons why the Claims Act and Title VIII should be construed

inconsistently and unfairly. The oil companies argued that the

meaning of the term ‘‘in Alaska’’ was clear and unambiguous

and that it did not include the OCS. They admitted that neither

sections 4(a) nor 4(b) of the Claims Act — the sections which

abolished aboriginal title — applied to the OCS. Yet they argued

that either paramount federal authority or section 4(c) of the

Claims Act, a section which abolished legal claims ‘‘based on

claims to aboriginal title ... in Alaska,’’ did abolish such title.

Secretary Watt took an entirely different position. He

disputed the oil companies’ claim that the meaning of the term

‘tin Alaska’’ was clear and unambiguous on its face. Arguing

that the term was opaque and otherwise totally ambiguous, he

contended that the construction of both statutes had to be

resolved by their legislative history. That history, he further

argued, demonstrated that Congress intended for the same term

in the two sister statutes to have totally opposite meanings.

The Court of Appeals for the Ninth Circuit understandably re-

jected these claims. It chose the consistent and fair interpretation

13

urged by the tribal villages — that the same term in the two

historically-linked statutes had the same meaning. Eschewing the

alternative of reading the term technically, it held that the term

was geographically descriptive, encompassing areas outside as

well as inside the territorial waters of the State.** Because the

court found the phrase to be geographically descriptive, it deter-

mined that the Claims Settlement Act extinguished Native hunt-

ing and fishing rights outside the three-mile limit as well as that

Title VIII of the Conservation Act protected the same rights in

the same area. 746 F.2d at 579, 582.

’ The court of appeals did not, however, void the sale. Rather

than take this step — as urged by the tribal villages — it chose to

remand the case to the trial court for a legal and factual deter-

mination as to the appropriate remedy for the violation of the

Conservation Act’s prescriptions. The action was requested by

the Secretary and the oil companies. To avoid having the lease

sale summarily voided, both the Secretary and the oil companies

had contended that the tribal villages would be entitled to an

injunction should the court hold that the Conservation Act

applied to OCS leasing. The Secretary had argued that the proper

remedy was to enjoin exploration until such time as he complied

with the requirements of the statute. The oil companies had gone

farther, claiming that ‘‘If this court should hold that § 810 of

ANILCA applies to the OCS, the appropriate remedy would be

... to enjoin further activities until the Secretary completes the

procedures required by the statute....’” 774 E2d at 1417. In

response to these arguments, the appellate court remanded the

matter back to the district court for the limited purpose of

deciding whether the sale should be voided or whether further

activities should be permanently enjoined. 746 F.2d at 582-83.

A preliminary injunction should have issued automatically on

remand. The remand order directed the district court to either

void Lease Sale 57 or to permanently enjoin further exploration

and development until Interior complied with the Conservation

Act. Pending that determination, a preliminary injunction

** See Village of Gambell v. Clark, 746 F.2d 572 (9th Cir. 1984) (Gambell J);

Inupiat Community of the Arctic Slope v. United States, 746 F.2d 570 (9th Cir.

1984), cert. denied, ___ U.S. ___., 106 S.Ct. 68 (1985).

14

preserving the status quo as well as the district court’s ability to

fashion appropriate final relief would have been an imminently

appropriate and necessary interim remedy. University of Texas

v. Camenisch, 451 U.S. 390, 395 (1981).

The Secretary and the oil companies had different ideas. In

spite of their representation to the Gambeil J court that an

injunction was the proper remedy, they reversed their position

on remand and argued that an injunction was not an appropriate

remedy. They argued that Interior had fully and completely com-

plied with the Conservation Act. The heart of their case was an

inadvertent compliance claim. According to this notion, Interior

had necessarily complied with all the requirements of the Conser-

vation Act when it complied with the National Environmental

Policy Act and the Outer Continental Shelf Leasing Act.

The district court rejected the inadvertent compliance argu-

ment but failed to issue the preliminary injunction which the

remand order had so clearly contemplated. Expressing a natural

skepticism that the Secretary could ‘‘inadvertently comply’’ with

the Conservation Act, the district court judged that the Secretary

had violated the statute on a number of counts. Chief among the

violations were the Secretary’s failure to prepare subsistence

studies for the two challenged lease sales with the precepts of the

Act clearly in mind and his failure to give the notice, hold the

hearings, and make -the findings required by sections

810(a)(1)-(3) of the Conservation Act. Nevertheless, the district

court failed to enter the injunction requested by the tribal

villages. Without explaining or elucidating its reasoning or

rationale, and without expressly balancing the equities, it sum-

marily concluded that an injunction was not an appropriate

remedy in the case.

The court of appeals reversed. Noting that Interior and the oil

companies had previously represented to it that an injunction

was the appropriate remedy, it proceeded to balance the equities.

It found that the balance tipped decidedly in favor of the tribal

villages. Moreover, it found that the public interest, as expressed

in the Conservation Act, favored granting the injunction. On the

basis of these traditional equitable principles, it ordered the

15

district court to enter an injunction and once again remanded the

case for a determination as to whether the lease sales should be

voided.

The Secretary and the oil companies have now petitioned this

Court for a writ of certiorari reviewing this decision as well as the

decision in Gambeil I. The petitions seek review of the conclu-

sion, reached in Gambelil I, that Title VIII applies outside the ter-

ritorial waters of the State of Alaska. They further seek review of

the Gambell II decision. Here the issues relate to the appropriate-

ness of the lower court’s balancing of the equities, the correct-

ness of its construction of the Conservation Act, and its applica-

tion of the Act to a lease sale which occurred after Gambell I was

filed and submitted for decision but before the court’s resulting

opinion was published.

16 sai

REASONS FOR NOT GRANTING THE WRIT

THIS CASE IS A TEMPEST IN A *EACUP

The Secretary and the oil companies strongly suggest that this

case presents important practical and legal issues. They allege

that this case may seriously disrupt the nation’s quest for energy

independence and that, at the least, it involves leases whose

value approaches four billion dollars. Further alleging that this

mischief is created by the Conservation Act, the Secretary and

the oil companies also suggest that any issues associated with

that Act, no matter how trivial in the abstract, must likewise be

so important as to warrant review by this Court.

These claims grossly exaggerate both the practical and legal

implications of the case, creating a virtual tempest in a teacup.

The supposed legal importance of the case is difficult to ascer-

tain. The legal issues presented for decision are mundane and

highly idiosyncratic. Possessing little relevance outside the nar-

row parameters actually presented for review, the legal issues

cannot credibly produce the draconian consequences to which

the petitioners allude. Nor does the case possess any practical

importance. Exploration has proven that the actual lease tracts

at issue contain no oil. For future leases, the substantive deci-

sion in the case merely requires Interior to comply with a fairly

short and straightforward statute. That compliance effort does

not pose a realistic threat to the nation’s energy program or to

its economic health.

This case certainly is of little immediate consequence, for the

leased tracts at issue here hold out no promise of ever producing

commercial quantities of oil and gas. Through adroit and facile

legal maneuvering, the oil companies have cumpleted ex-

ploratory drilling on the most promising of their tracts. That

exploration has resulted in dry hole after dry hole — ample and

convincing proof that the tracts likely contain no commercial

quantities of oil and gas. Indeed, one irony of this case is that,

in retrospect, the oil companies and the nation’s economy

would have undoubtedly been best served if the district court

17

had-enjoined the lease sales. This would have at least prevented

the oil companies from squandering resources exploring for oil

on tracts where the probability of finding oil asymptotically

approaches zero: A second irony is that, having obtained the

information needed to reach that conclusion, the oil companies

have every incentive to reverse their position one’ +t time and

claim that the sales should be voided — a .emedy that would

permit them to recover their misspent bid money.

This case similarly possesses little importance for future lease

sales. The lower court held that Interior had to comply with a

simple and short statute requiring that OCS leasing not

unreasonably interfere with the subsistence fishing and hunting

rights of Alaska’s aboriginal people. This compliance effort will

concéededly change the contours of some OCS lease sales, for it

requires the deletion of tracts which are important for subsist-

ence but which hold a low potential for oil and gas. It will con-

cededly delay OCS leasing in Alaska by requiring that Interior

identify subsistence uses and needs before leasing occurs. In

some extreme cases, it may prohibit unnecessary lease sales.

But these consequences are relatively insignificant. Leasing in

a manner that minimizes the conflict between subsistence uses

and oil and gas, development is a sound idea. The Secretary

should adopt it regardless of the existence of the Conservation

Act. Moreover, delays attributable to adopting such a plan are

of no great moment. The economic health of the country does

not demand an expedited development of the Alaskan OCS.

The cost of producing a barrel of oil in the Alaskan OCS ranges

upwards of $40. The oil companies need approximately fifteen

to twenty years to develop producing oil wells in that inhospit-

able and environmentally sensitive area. Current oil prices are

hovering at $10-$15 per barrel; production of Alaskan OCS

crude lies fifteen years in the future. The economic incentives

for developing the Alaskan OCS are currently so low that within

the last year Interior has twice canceled scheduled sales for lack

of industry interest.?* In this economic climate, expeditiously

leasing the Alaskan OCS is certainly not a pressing national

need.

** The Anchorage Daily News, April 29, 1986 at B6.

18

Interior should encounter few problems when complying with

the statute. The Conservation Act has applied to federal oil

leases since 1980. Since that date, Interior has recognized that it

controls disposal of the vast federal land holdings located on the

Alaskan mainland. The agency has applied the statute to

countless land disposals and offered countless leases for sale dur-

ing this period. Not one disposal or lease has been prevented by

the Conservation Act. Interestingly enough, the only Conserva-

tion Act challenge to a mainland lease sale was rejected by the

same lower court which the Secretary would have this Court be-

lieve is-unreasonably prejudiced against him. Kunaknana vy.

Clark, 742 F.2d 1145 (9th Cir. 1984).

Interior would best serve the public interest as well as all

private interests by ending its pointless and unproductive judicial

wrangling and by implementing a compliance program. Interior

has proven that it can comply with the Conservation Act when it

wishes. Yet it has chosen to take the low road in this case by

refusing to comply with an inherently reasonable statute setting

forth a sound management plan for the use of Alaska’s natural

resources. Its course has been folly. After three years of expen-

sive and time-consuming litigation, no one is better off. The

Secretary’s OCS program in Alaska has been disrupted. The oil

companies have been subjected to unnecessary delays and uncer-

tainty. Alaskan Natives’ subsistence needs have been virtually

ignored. The better alternative is clear. The Secretary can pro-

mote all relevant interests by complying with the Conservation

Act. Interior possesses the power to expeditiously lease the

Alaskan OCS. It need only drop its recalcitrance and resolve to

fairly and conscientiously address the subsistence needs of

Alaskan Natives.

19

THE PETITIONS ARE UNTIMELY TO THE EXTENT

THEY SEEK REVIEW OF THE DECISION THAT THE

CONSERVATION ACT APPLIES TO OCS LEASING

The Secretary and the oil companies have requested review of

Gambell I’s determination that Title VIII of the Conservation

Act applies to the OCS. In addition to raising an unimportant

issue that has been settled for virtually two years, the petitions on

this issue are untimely.

The rules governing timeliness are straightforward. Rule 20

provides that a petition for a writ of certiorari to review the judg-

ment of a federal court of appeals shall be deemed in time ‘‘when

it is filed with the Clerk within 60 days after the entry of such

judgment.’’ Sup. Ct. R. 20.1. That Rule further provides that

‘*the time for filing a petition for a writ of certiorari runs from

the date the judgment or decree to be reviewed is rendered, and

not from the date of the issuance of the mandate.’’ Sup. Ct. R.

20.4.

The judgment concerning the geographic scope of the Conser-

vation Act was rendered on November 2, 1984. As noted by the

petitioners, the court of appeals in Gambell I determined that

Title VIII of the Conservation Act applied to the OCS on that

date. This issue was not subsequently presented to the Gambell I

court, and that court understandably did not pass on it.

The petitions on the issue of the geographic scope of the Con-

servation Act are therefore late. The only lower court judgment

or decree dealing with whether the Conservation Act applies to

the OCS was rendered on November 2, 1984. The time for seek-

ing a writ of certiorari reviewing that decree ran on January 31,

1985. The decree cannot be reviewed by a petition filed in

February of 1986.

This conclusion is supported by none other than the Solicitor

General himself. After Gambell I was decided, the Solicitor

requested of this Court an extension of time in-which to file a

petition for certiorari reviewing the judgment that Title VIII of

the Conservation Act applied to the OCS. That request, repro-

duced below, concedes that the time for reviewing the Gambell I

decision ran on March 2, 1985. It states:

20

The Solicitor General, on behalf of the Secretary of the

Interior and the Department of the Interior, respectfully re-

‘ quests an extension of time, to and including March 2,

1985, within which to file a petition for a writ of certiorari

to the United States Court of Appeals for the Ninth Circuit

in this case. The judgment of the court of appeals was

entered on November 2, 1984. A copy of the court’s

opinion is attached hereto. Unless extended, the time for

filing a petition for a writ of certiorari will expire on

January 31, 1985. The jurisdiction of this Court would be

invoked under 28 U.S.C. 1254(1).

Section 810 of the Alaska National Interest Lands Con-

servation Act (ANILCA), 16 U.S.C. 3120, establishes

procedural requirements to be followed by federal land

managers in order to harvest fish and wildlife. These

requirements apply only to ‘‘land situated in Alaska,”’

‘*title to which is in the United States’’ (16 U.S.C. 3102 and

3120). The question presented by this case is whether the

seabed and subsoil of the Outer Continental Shelf fall

within this definitional limitation, in light of the fact that

the Outer Continental Shelf is outside the boundaries of the

State of Alaska and the United States claims only sovereign

rights to explore and exploit the resources of the Outer Con-

tinental Shelf but not ownership. The court of appeals held, -

inter alia, that ANILCA’s procedural protections for sub-

sistence activities do apply to Outer Continental Shelf lands

and water contiguous to the State of Aiaska. The decision

of the court of appeals may be read to create a conflict be-

tween ANILCA and the Outer Continental Shelf Lands

Act, 43 U.S.C. 1331 et seg. The decision may also inject

new legal requirements and procedures into existing

statutory schemes for managing ocean resources in a man-

ner not intended by Congress.

Application for an Extension of Time Within Which to File a

Petition for a Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit, January 18, 1985.

This Court granted the Solicitor’s request for an extension of

time in which to seek review of the decision that the Conserva-

21

tion Act applies to OCS leasing. Electing not to seek review of

the decision, the Solicitor permitted the deadline for the cer-

tiorari petition to pass. Interior then acquiesced in the decision

by conceding that it was the correct rule of law on remand.

Following Gambell I, the Secretary did not controvert the judg-

ment that the Conservation Act applied to OCS leasing, either in

the district court or the court of appeals. The oil companies

similarly did not argue that Gambeil I was wrongfully decided in

either court.*°

The Secretary’s and the oil companies’ failure to relitigate

whether the Conservation Act applies to OCS leasing precludes

their now petitioning for a writ of certiorari on that issue. Cen-

tral to the relationship between higher and lower courts is the

precept that, with limited exceptions, a higher court will not

review an issue not presented to the inferior tribunal by the losing

party.’' The precept applies in this Court. An unbroken string of

decisions previously issued by this Court holds that ‘‘[w]hen the

issues are neither raised before nor considered by the Court of

Appeals, this Court will not ordinarily consider them.’’ Adickes

v. S.H. Kress & Co., 398 U.S. 144, 146 n.2 (1970). Accord, e.g.,

Youngberg v. Romero, 457 U.S. 307, 316 n.19 (1982); Lawn v.

United States, 355 U.S. 339, 362 n.16 (1958); Husty v. United

States, 282 U.S. 694 (1931); Duignan v. United States, 274 U.S.

195 (1977).

The corollary to this rule is that a party losing an appeal must

preserve the issue on remand in order to later petition for cer-

tiorari. The mechanics of the process are straightforward.

*° The oil companies’ brief to the Gambell J] court did indicate, by means of a

one sentence footnote, that they ‘‘reserved’’ the argument that the Conserva-

tion Act did not apply to the OCS. An otiose reference at best, the footnote

constitutes not the affirmative presentation of the issue contemplated by the

Federal Rules. E.g., Chicago & Western Indiana R.R. Co. v. Motorship Buko

Maru, 505 F.2d 579, 581 (7th Cir. 1974).

*' The relationship dictates that the higher court will, however, affirm on any

grounds, including those not relied upon or even consideréd by the lower court.

E.g., Hankerson v. North Carolina, 432 U.S. 233, 240 n.6 (1977);

Massachusetts Mutual Life Ins. Co. v. Ludwig, 426 U.S. 479, 480-81 (1976);

Dandridge v. Williams, 397 U.S. 471, 475-76 n.6 (1970); Langnes v. Green, 282

U.S. 531, 535-39 (1931).

22

Following the remand, the issue must be re-presented to the trial

court and, where an appeal is possible, re-presented to the ap-

pellate court. Only after perfecting the appeal in this manner

may the party petition for certiorari. The two cases cited by the

Solicitor — Reece v. Georgia, 350 U.S. 85 (1955) and Falk v.

Brennan, 414 U.S. 190 (1973) — establish precisely this point.

Those decisions hold that petitioning parties must preserve their

rights after the remand by relitigating the lost issue in the trial

court and, when appropriate, in the court of appeals. See also

Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S.

481, 488 n.6 (1968); Toledo Scale Co. v. Computing Scale Co.,

261 U.S. 399, 418 (1923); Hamilton-Brown Shoe. Co. v. Wolf

Bros. & Co., 240 U.S. 251, 257-58 (1916).

The petitions with respect to whether the Conservation Act

applies to the OCS are untimely. Gambell I, decided more than

two years ago, held that the Act applied to the OCS. The time for

petitioning for a writ of certiorari reviewing that decision ran

over a year ago. Neither the Secretary nor the oil companies

relitigated that issue in either the district court on remand or in

the court of appeals in Gambell I]. Having failed to present the

issue to the Gambell I] court, they cannot request that this Court

review an issue decided two years ago and not preserved after the

remand.

23

THE PETITIONERS CANNOT COMPLAIN ABOUT AN

INJUNCTION WHICH ISSUED AT THEIR REQUEST

The Secretary and the oil companies have also petitioned for a

writ of certiorari reviewing the court of appeals’ determination

that exploratory and developmental activities on tracts leased in

violation of the Conservation Act should be enjoined. Review of

this issue should be denied because the lower court issued the

injunction at the Secretary’s and the oil companies’ behest.

The facts establish that the petitioners requested the injunc-

tion ordered by the Gambeil II court. During the appeal of

Gambell I, the tribal villages requested that the court of appeals

void the Norton Sound lease sale. They contended that the

Secretary had failed to comply with the statutory prescription of

the Conservation Act before the sale and that, in light of the per-

tinent statutory language, he could not comply afterwards. The

Secretary and the oil companies vigorously disagreed. To protect

the lease sale, they requested that the court enjoin exploration

and development rather than void the sale if it concluded that the

Conservation Act, applied to OCS leasing. 774 F.2d at 1417.

The Gambell I court declined to rule on this issue. Expressing

the opinion that the issue involved significant legal as well as

factual issues, it remanded the case to the district court for a

decision as to whether the sale should be voided or whether

exploratory and developmental activity should be enjoined. The

remand order clearly circumscribed the district court’s available

choices. Under the order, the district court could either: (1) void

the sale; or (2) enjoin all exploration and development until such

time as the Secretary complied with the statute. See 746 F.2d at

\582-83.

The Gambell IT court relied heavily on this aspect of Gambell I

when it reversed the district court’s denial of a preliminary

injunction. Quoting extensively from both the Secretary’s and

the oil companies’ briefs in Gambell I, the Gambell IT court

judged that the Secretary and the oil companies had previously

requested the injunction. 774 F.2d at 1417. It further judged that

they could not abandon that position following the Gambell J

24

remand order merely because it was in their interest to do so. On

this basis, the lower court determined that a preliminary injunc-

tion should issue until the district court either permanently

enjoined exploration and development or voided the sale.

The record indicates that the lower court’s decision to enjoin

exploratory and developmental activity was dictated by the

litigation position adopted by the Secretary and the oil

companies. To a large extent the petitions submitted by the

Secretary and the oil companies present a false portrait of the

issue put to the Gambeill I] court. Implicit in their petitions is the

suggestion that the court of appeals had placed before it a choice

of enjoining exploration and development or not enjoining these

activities. This is inaccurate. The choice presented to the lower

court was between voiding the sales or enjoining exploration and

development. The tribal villages asserted that the statutory lan-

guage of the Conservation Act demanded that the court void the

challenged sales. The Secretary and the oil companies argued

that enjoining exploration and development was the appropriate

remedy.

Because the Secretary and the oil companies requested that the

court of appeals issue a permanent injunction, they have no

ground for petitioning for review of its decision to issue a

preliminary one. The Secretary and the oil companies requested

that the court of appeals permanently enjoin exploration and de-

velopment rather than void the sale. Pursuant to their request,

that court ordered the district court to seriously consider whether

they were entitled to have exploratory and developmental

activities enjoined «r whether the sale should be summarily

voided. Having persuaded the lower court to at least consider

their request for a permanent injunction enjoining exploration

and development, the Secretary and the oil companies can hardly

be heard to complain that the court entered a preliminary injunc-

tion enabling them to make their case on why the sale should not

be voided. Surely the court of appeals is entitled to more

gratitude than this.

25

IV

THE COURT OF APPEALS DID NOT APPLY A

_ PER SE INJUNCTION RULE

The Secretary and the oil companies’ petitions for a writ of

certiorari reviewing the court of appeals’ application of a per se

injunction rule should be denied for an additional reason:

namely, that the court of appeals did not apply such a rule.

The lower court’s opinion details the standards the court

applied when it evaluated the tribal villages’ claim for

preliminary injunctive relief. Coutrary to the Secretary’s and the

oil companies’ assertions, it irrefragably provides that the lower

court used a traditional test which considered the probability of

success on the merits, the balance of the equities, and the public

interest. The opinion states:

/. Applicability of the Traditional Test

This court has recognized two sets of standards for

eva.uating a claim for injunctive relief. We refer to one as

the ‘‘traditional’’ test and the other as the ‘‘alternative’’

test. American Motorcyclist Ass’n v. Watt, 714 F.2d 962,

965 (9th Cir. 1983). In American Motorcyclist Ass’n we

described the traditional test as follows: ‘‘The traditional

equitable criteria for determining whether an injunction

should issue are (1) Have the movants established a strong

likelihood of success on the merits; (2) does the balance of

irreparable harm favor the movants; (3) does the public

interest favor granting the injunction?’’ /d. at 965.

‘**The ‘alternative’ test permits the moving party to meet

its burden by demonstrating either a combination of prob-

able success and the possibility of irreparable injury or that

serious question are raised and the balance of hardships tips

sharply in its favor.’’ Id. (citing Benda v. Grand Lodge of

IAM, 584 F.2d 308, 314-15 (9th Cir. 1978), cert. dismissed,

441 U.S. 937 (1979); William Inglis & Sons Baking Co. v.

ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir.

1975)).

26

We have concluded, however, that the traditional and the

alternative tests are ‘‘not really two entirely separate tests,

but that they are merely extremes of a single continuum.”’

Benda v. Grand Lodge of IAM, 584 F.2d at 315. Accord,

Regents of University of California v. ABC, 747 F.2d 511,

515 (9th Cir. 1984); Los Angeles Memorial Coliseum

Comm’n v. National Football League, 634 F.2d 1197, 1200

(9th Cir. 1980). We have also noted that ‘‘[t}he difference

between the two formulations is insignificant. Therefore,

we accept either as satisfactory.’’ Benda, 584 F.2d at 315.

Because the district court employed only the traditional

test, we will review the findings under that formulation. See

Regents of University of California v. ABC, 747 F.2d at

515-16 n.4 (where the district court made a finding that the

public interest favored the issuance of the preliminary

injunction, this court reviewed the distric: court’s findings

under the traditional standard).

774 F.2d 1414, 1419 (9th Cir. 1985).

The decision to issue the injunction flowed naturally from the

application of this traditional test. The court of appeals first

determined, presumably to no one’s surprise, that Interior had

failed to comply with a statute that it had consciously refused to

apply to OCS leasing. It then proceeded to the balance of

equities. Here it found that the Secretary’s violations of the Con-

servation Act constituted irreparable harm. See id. at 1422-1425.

It also found that the ‘‘by-products of oil and gas exploration

such as potential oil spills, leakage, and noise’ threatened to

disrupt subsistence hunting and fishing to the extent that it could

‘destroy irreparably the isolated and unique culture of the

Native Alaskans.”’ /d. at 1426. Since neither Interior nor the oil

companies offered any evidence indicating that they would

suffer irreparable harm if the injunction issued, the court con-

cluded that the balance of the equities tipped sharply in favor of

the tribal villages. The court then ended its inquiry by consider-

ing the public interest. On this issue, the court judged that the

best expression of the public interest was contained in the Con-

gressional prohibition against leasing in a manner that

unreasonably restricted subsistence uses. It further judged that

27

the public interest would be best served by requiring that the -

Secretary follow the controlling statutory requirements. See id.

at 1425-26.

This decision simply does not support a petition to review an

ostensible application of a per se injunction rule. The only aspect

of the opinion which might conceivably be per se is the conclu-

sion that violations of statutory prohibitions are judicially

cognizable harms which must be considered in determining

whether injunctive relief is appropriate in a given case. This long-

standing presumption is the governing rule in this Court as well

as in every circuit court of appeals. E.g., Weinberger v. Romero-

Barcelo, 456 U.S. 305, 315 (1982); TVA v. Hill, 437 U.S. 153,

193-96 (1978); Albermarle Paper Co. v. Moody, 422 U.S. 405,

417 (1975); United States v. City and County of San Francisco,

310 U.S. 16, 30-31 (1940); Foundation On Economic Trends v.

Heckler, 756 F.2d 143, 157 (D.C. Cir. 1985); Alaska v. Andrus,

580 F.2d 465, 485 (D.C. Cir.), vacated in part as moot sub nom.

Western Oil and Gas Association v. Alaska, 439 U.S. 922 (1978);

Massachusetts v. Watt, 716 F.2d 946, 952-53 (ist Cir. 1983);

Sierra Club v. United States Army Corps of Engineers, 701 F.2d

1011, 1034-35 (2d Cir. 1983); Citizen Advocates for Responsible

Expansion v. Dole, 770 F.2d 423, 443 (Sth Cir. 1985); United

States v. City of Painesville, 644 F.2d 1186, 1193-94 (6th Cir.

1981); Wisconsin v. Weinberger, 745 F.2d 412, 425-28 (7th Cir.

1984). See Plater, Statutory Violations and Equitable Discretion,

70 Cal.L.Rev. 524 (1982). It cannot realistically be viewed as

presenting a substantial issue needing reaffirmation on yet one

more occasion.

The petitioners’ real quarrel is with their failure to make a

record demonstrating they would suffer irreparable harm if the

injunction issued. Their complete and absolute inability to con-

struct such a record is remarkable. Certainly the Secretary never

claimed he would suffer any harm. In both the district court and

the court of appeals he stood silent, tacitly conceding that the

government would not suffer any harm should the injunction

issue. 774 F.2d at 1424-25. Nor did the oil companies do much

more. For their part, they argued that they would be harmed by

financial losses that would accrue from disrupted contracts

signed after Gambell I was decided. Properly ignoring this harm,

28

the court of appeals applied the invariant rule that a party cannot

alter the balance of hardships by bootstrapping itself into a

position of harm.

In summary, the record in this case does not reveal that the

lower court applied a per se injunction rule. Precise and explicit,

it unquestionably demonstrates that the injunction issued

because the petitioners failed to show any irreparable harm

associated with the issuance of an injunction. The lower court’s

decision to issue the injunction was not — as the Secretary and

the oil companies claim — a function of the application of a per

se rule. It was merely the normal and expected result which

obtains from balancing the equities when one side puts nothing

on the scales for the weighing.

29

Vv

THE LOWER COURT’S DECISION THAT THE

CONSERVATION ACT APPLIES AT THE LEASING

STAGE DOES NOT PRESENT A SERIOUS

LEGAL QUESTION

Both the Secretary and the oil companies have requested that

this court review the Ninth Circuit’s decision holding that the

Conservation Act applies at the leasing stage. Relying on

Secretary of the Interior v. California, 464 U.S. 312 (1984), they

allege that the Conservation Act should be construed to apply

only to exploration and development. Pushing the analogy

between different statutes beyond all reason, they further allege

that the lower court’s decision in this case conflicts with this

Court’s decision in that one.

The argument that this case conflicts with Secretary of the

Interior v. California is specious. The issues presented by the

two cases are not remotely similar. Secretary of the Interior

resolved the timing question of when the Coastal Zone Manage-

ment Act applied to OCS leasing. That statute requires a con-

sistency determination whenever an administrative action

**directly affects’’ the coastal zone. This Court held that the

phrase ‘‘directly affects’? contemplates an action which results

in an immediate and actual physical effect on the coastal zone.

Since leasing does not technically effect such an impact, this

Court found that the requirements of the CZMA were not trig-

gered by activities associated with that leasing. This case

presents no similar timing question. Section 810 of the Conser-

vation Act dictates that compliance must precede leasing. Its

terms mandate that the Secretary perform certain studies, in-

itiate certain procedures, and make certain findings. Its terms

further mandate that these actions must occur before he decides

to lease or before he issues leases. Resolved by the plain

language of the statute, the timing question of when the Conser-

vation Act applies to OCS is simply not an issue.

In this regard, the conclusion that the Conservation Act

applies at the leasing stage cannot be credibly controverted. The

plain language of the statute provides that in the time/space

30

continuum in which leasing occurs, compliance with the

statutory mandates of the Conservation Act must be accom-

plished before leasing decisions are made, or, in the most ex-

treme case, before any lease issues. It requires the Secretary to

complete and then consider extensive studies ‘‘/i/n determining

to lease public lands under any provision of law authorizing

such actions.’ 16 U.S.C. § 3120 (emphasis added). Flatly pro-

hibiting some types of leasing, it further provides that ‘‘/n/o

lease of such lands which would significantly restrict subsistence

uses shall be effected’’ unless and until the Secretary undertakes

the procedures and makes the findings specified by section

810(a)(1)-(3). Jd.

The staiutory language resolves all questions relating to the

timing of a Conservation Act compliance effort. Embodying

specific and direct commands, the statute requires that effort

before leasing occurs. And, as the courts of appeals have

unanimously held, a compliance effort at the leasing stage must

consider the effects attributable to leasing as well as all other

actions flowing naturally from that leasing. See, e.g., North

Slope Borough v. Andrus, 642 F.2d 589 (D.C. Cir. 1980);

Massachusetts v. Watt, 716 F.2d 946 (ist Cir. 1983); Conserva-

tion Law Foundation v. Andrus, 623 F.2d 712 (1st Cir. 1979);

Massachusetts v. Andrus, 594 F.2d 872 (ist Cir. 1979); County

of Suffolk v. Secretary of the Interior, 562 F.2d 1368 (2d Cir.

1977), cert. denied, 434 U.S. 1064 (1978); Sierra Club v. Morton,

510 F.2d 813 (Sth Cir. 1975); Village of False Pass v. Clark, 733

F.2d 605 (9th Cir. 1984).

From a broader perspective, the question presented by this

case is whether any compliance effort is required at the lease

stage. It is not whether a specified compliance effort is sufficient

to meet stringent statutory requirements unreasonably estab-

lished by the court of appeals. In their petitions, the Secretary

and the oil companies suggest that Interior made at least a feeble

attempt to comply with the Conservation Act before holding the

lease sales at issue. This suggestion is false. Prior to these sales,

the Secretary consciously refused to comply with the Conserva-

tion Act. After concluding that the Act did not apply to OCS

leasing, he ignored its statutory directives. In light of the

Statutory language which states that compliance must occur

31

**fiJn determining to lease,’’ Interior’s claim that it did not have

to comply with the Act before issuing leases hardly presents a

dignified and legitimate legal issue — much less one important

enough to warrant the attention of this Court.

32

VI

THIS CASE DOES NOT INVOLVE A RETROACTIVE

APPLICATION OF THE CONSERVATION ACT

Finally, the Secretary as well as the oil companies have peti-

tioned this Court for review of what they claim is a retroactive

application of the Conservation Act to sales which were held

after Congress enacted that statute but before the court of

appeals decided Gambell I. They allege the decision to apply the

Conservation Act to those sales would violate this Court’s

opinion in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971).

The record unequivocally demonstrates that this question is

not presented by this case. The operative, controlling, and un-

controverted facts are set out by the lower court’s opinion. They

are as follows. Congress passed the Conservation Act in

December of 1980. Gambell I was filed on March 4, 1983, about

two years later. It was submitted to the court of appeals follow-

ing oral argument on October 7, 1983. While the case was sub-

mitted, the Secretary determined to hold another lease sale. He

did so ‘‘with knowledge that his right to do so without complying

with the Conservation Act was in doubt.’’ 774 F.2d at 1427. The

oil companies that were parties to Gambell I bid on the leases

offered at this sale. They placed their bids ‘‘with full knowledge

of the risks involved in expending money at a time when the

validity of leases sold without compliance with the Conservation

Act was pending.’’ /d.

These facts do not support the claim that the lower court

applied a novel interpretation of the Conservation Act to lease

sales held before the Secretary had notice that his interpretation

of the Conservation Act would be challenged. This case involves

only two lease sales. One was subjected to a Conservation Act

challenge before it was held. The other was held after Gambell I

was submitted — at a time when both the Secretary and the oil

companies had constructive as well as actual notice of the poten-

tial problems associated with holding an OCS lease sale in Alaska

without complying with that Act. Since the two sales at issue here

were held after all parties had notice of the Conservation Act

challenge, this case does not involve the issue of whether the

33

Conservation Act should be applied retroactively.” Rather than

embodying a retroactive application of a new and unexpected

statutory interpretation, the lower court’s decision merely

illustrates the established rule that a litigated case acts as a lis.

pendens, placing on notice all bidders at sales held subsequent to

its filing. E.g., Conservation Law Foundation v. Andrus, 623

F2d 712, 720 (ist Cir. 1979); North Slope Borough v. Andrus,

486 EF. Supp. 326, 331 (D. D.C. 1979).

CONCLUSION

The petitions for certiorari should not be honored. This case

has little practical importance in the current economic climate.

The legal issues upon which review has been requested are un-

timely, unimportant, and not presented by the record and facts

of this case.

Respectfully submitted,

DONALD S. COOPER

JAMES A. BAMBERGER

CAROL H. DANIEL

Alaska Legal Services Corporation

550 West 8th Avenue, Suite 300

Anchorage, Alaska 99501

(907) 276-6282

Attorneys for Respondents

April 1986

’2 No case has raised a Conservation Act challenge to an OCS sale held before

Gambell I was filed.