Amicus Curiae Brief — Amoco Production Co. v. Village of Gambell

10) AY

Nos. 85-1239 and 85-1406 ' /

In The

Supreme Court of the United =. Coutt, U.S.

October ‘Term, 1986 FILED

AMOCO PRODUCTION COMPANY, et|al., sep 30 198

Petitiqners,

JOSEPH F. SPANIOL, JR,

v. CLERK

PEOPLE OF THE VILLAGE OF GAMBELIF “

Respondents.

DONALD P. HODEL SECRETARY

OF THE INTERIOR, et al.,

Petitioners,

v.

PEOPLE OF THE VILLAGE OF GAMBELL, et al.,

Respondents.

——

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE

IN SUPPORT OF RESPONDENTS

STATE OF CALIFORNIA EX REL. JOHN K. VAN DE

KAMP, ATTORNEY GENERAL, AND THE STATES

OF ALASKA, DELAWARE, FLORIDA, HAWAII, KAN-

SAS, NEW MEXICO, OKLAHOMA, SOUTH CARO.

LINA, TEXAS, VIRGINIA, AND WISCONSIN

JOHN K Van ve Kamp

Attorney General of Calitornia

THEopoRA BERGER

(Counsel of Record)

Assistant Attorney General

Ken ALEX

Deputy Attorney General

350 McAllister Street

6000 State Building

San Franeiseo, CA 94102

(415) 557-4111

Atiorweys for Amicus State of

California, ex rel.

John K. Van de Kamp

(Additional list of Attorneys on inside cover )

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

HAROLD M. BROWN

Attorney General

State of Alaska

FRED SILVERMAN

Solicitor

State of Delaware

JIM SMITH

Attorney General

State of Florida

CORINNE K.A. WATANABE

Attorney General

State of Hawaii

ROBERT T. STEPHAN

Attorney General

State of Kansas

PAUL BARDACKE

Attorney Gencral

State of New Mexico

MICHAEL C. TURPEN

Attorney General

State of Oklahoma

T. TRAVIS MEDLOCK

Attorney General

State of South Carolina

JIM MATTOX

Attorney General

State of Texas

MARY SUE TERRY

Attorney General

State of Virginia

BRONSON C. LaFOLLETTE

Attorney General

State of Wisconsin

QUESTION PRESENTED

Does the Ninth Cireuit’s standard for issuance of an

injunction for substantial violation of Alaska National

Interest Lands Conservation Act section 810 properly re-

fleet Congress’s determination to protect subsistence uses

and its ereation of a single mechanism to provide for sub

sistence use protection?

il

TABLE OF CONTENTS

QUESTION PRESENTED .........- _—

INTERESTS OF AMICT ......

SUMMARY OF ARGUMENT ..........-

ARGUMENT. ~*~, iin nrc cnennnannneenneeenneenneeeneeneneenennnneenamnmmnensn

5.

Il.

III.

IV.

LNT RRODU CT ION ~W200.iececceceeececeeneeeeneenenneee

ONCE THE COURT DETERMINES THAT,

AS A MATTER OF STRONG LIKELIHOOD,

THE SECRETARY OF THE INTERIOR VI-

OLATED ANILCA SECTION 810, ONLY THE

QUESTION OF HOW BEST TO ACHIEVE

STATUTORY COMPLIANCE REMAINS -..

A. The Court Must Look Solely to ANILCA to

Determine the Parameters of Its Equitable

Discretion In Forming an Appropriate Rem-

CY in nnneennenenennnenenenenenenennnnnnnnntnnn

B. Statutory Violation Requires Statutory Com-

pliance, and Any Remedy Must Be Consistent

With the Statute...

CONGRESS HAS THE AUTHORITY TO LIM-

IT JUDICIAL EXERCISE OF EQUITABLE

A. The Violated Statute Forms the Limits of

the Appropriate Remedy

ss

B. The Court in Romero-Barcelo Recognized

and Further Defined the Limits of Equit-

able Discretion .................

eoececces=++-++

ANILCA SECTION 810 SEVERLY LIMITS

EQUITABLE DISCRETION 22 ncccccceeeen

A. ANILCA Section 810 Unambiguously Re-

quires the Secretary of the Interior to Act

to Protect the Decision-making Process and

the Subsistence Needs of Rural Alaskans...

11

13

13

~~ eae

iil

TABLE OF CONTENTS—Continued

Page

B. The Legislative History of ANILCA Fur-

ther Supports A Strict Reading of the Stat-

ute Limiting Remedies for Violation .......... 16

V. BECAUSE ANILCA MANDATES SPECIFIC

PROCEDURES, THE SEPARATION OF

POWERS DOCTRINE LIMITS EQUITABLE

DISCRETION 17

VI. CONGRESSIONAL PURPOSE AND THE IN-

TEGRITY OF THE SUBSISTENCE USE

ANALYSIS AND HEARING PROCESS UN-

DER ANILCA CAN BE PROTECTED ONLY

BY INJUNCTIVE RELIEF, EXCEPT IN UN-

USUAL CIRCUMSTANCES 18

VII. THE NINTH CIRCUIT STANDARD AP-

PLIED IN THIS CASE REFLECTS CON-

GRESSIONAL LIMITS ON EQUITABLE RE-

LIEF WHILE ALLOWING A SIGNIFICANT

AND STATUTORILY APPROPRIATE LEV-

EL OF DISCRETION . 21

VIII. CONSIDERATION OF THE APPROPRIATE

INJUNCTION STANDARD IN NEPA CASES

IS IRRELEVANT TO THIS LITIGATION... 25

MR, ‘eciiiniaiesaiishiblitiitinnes 27

iV

TABLE OF CASES

Page

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ....7, 8,

9,10

Alpine Lakes Protection Society v. Schlapfer, 518

F.2d 1089 (tb Civ, 1975) nnnnaenennnenennennvneneenemneenennennene 20, 22, 24

American Motorcyclist v. Watt, 714 F.2d 962 (9th

Cir. 1983) $$ — $= —_$__ 22

Arizona v. California, 373 U.S. 546 (1068) 2. — 11

City of Milwaukee v. Illinois, 451 U.S. 304 (1981) ......5, 6,7

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) 5

Forelaws on Board v. Johnson, 748 F.2d 677 (9th

Cir. 1984), cert. denied, 106 S.Ct. 3293 (1986) .......... 22, 24

Gilbertville Trucking Co. v. United States, 371

00-0 0) ee 7

Hecht Co. v. Bowles, 321 U.S. 321 (|) as 8, 11, 23, 25

Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1983) ...19, 20

Osborn v. Bank of United States, 22 U.S. (9 Wheat.)

738 (1825) $$$ $$ 7,18

People of the Village of Gambell v. Hodel, 774 F.2d

W414 (Ott Civ, VOBD) nance ecnneneeneneeneneemeneenenene 4, 21, 22, 23, 24

Save Our Ecosystems v. Clark, 747 F.2d 1240 (9th

Cir. 1984) —_£$__$___$_$$$_$_$ $$ 23

Steamboaters v. FERC, 777 F.2d 1384 (9th Cir.

, ere selina 23, 24

TVA v. Hill, 437 U.S. 153 (1978) nnnnennnnenneerenenne 6, 8, 9, 18, 295

United States v. American Tobacco Co., 221 U.S.

Te 6) |) 7

United States v. Rodgers, 461 U.S. 677 (1983) ............ 8, 10, 14

Weinberver v. Romero-Barcelo, 456 U.S. 305 (1982)..passim

Wilderness Society v. Morton, 479 F.2d 842 (D.C.

Cir.), cert. denied, 411 U.S. ie EEE 18

v

STATUTES

Page

Alaska National Interest Lands Conservation Act,

16 U.S.C. §§ 3101-3233 (1982) passim

Alaska Native Claims Settlement Act, 43 U.S.C.

§ 1601 (1982) 15

Federal Water Pollution Control Act, 33 U.S.C.

§§ 1151-1376 (1982) enenenenenen 5, 24

National Environmental Protection Act, 42 U.S.C.

§ 4332(2)(¢) (1982) 14

LEGISLATIVE MATERIAL

125 Cong. Rec. 9901 (1979) 17

125 Cong. Rec. 9904 (1979) 16, 17, 19

126 Cong. Rec. 29278 (1980) 17, 20

126 Cong. Rec. 29279 (1980) 17, 20

OTHER

Plater, Statutory Violations and Equitable Dis-

cretion, 70 Cal. L. Rev. 524 (1982) 23

Nos. 85-1239 and 85-1406

In The

Supreme Court of the United States

October Term, 1986

AMOCO PRODUCTION COMPANY, et al.,

Petitioners,

Ve

PEOPLE OF THE VILLAGE OF GAMBELL, et al.,

Respondents.

—o-—

DONALD P. HODEL SECRETARY

OF THE INTERIOR, et al.,

Petitioners,

Vv.

PEOPLE OF THE VILLAGE OF GAMBELL, et al.,

Respondents.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE

IN SUPPORT OF RESPONDENTS

STATE OF CALIFORNIA EX REL. JOHN K. VAN DE

KAMP, ATTORNEY GENERAL, AND THE STATES

OF ALASKA, DELAWARE, FLORIDA, HAWAII, KAN-

SAS, NEW MEXICO, OKLAHOMA, SOUTH CARO-

LINA, TEXAS, VIRGINIA, AND WISCONSIN

Amici respectfully submit this brief pursuant to Rule

26.4 of the Rules of the United States Supreme Court, in

support of respondent, People of the Village of Gambell.

INTERESTS OF AMICI

The states which have joined as amici in this brief

share a deep and abiding concern for the continued diligent

1

2

enforcement of environmental statates. Injunctive relief, as

a remedy to statutory violation and as tool to maintain the

status quo pending final judicial determination, forms a

pivotal element of environmental enforcement, both in ob-

taining full statutory compliance and in achieving deter-

ance.

Amici believe that this litigation concerns the Alaska

National Interest Lands Conservation Act, 16 U.S.C.

§§ 3101-3233 (1982) (ANILCA), exclusively. While ANIL-

CA itselfas the statutory protector of irreplaceable re-

sources and the way of life of Alaska rural subsistence

users, see 16 U.S.C. §§ 3110-3120, embodies elements of

concern and interest to amici, amici are most concerned

about petitioners’ attempt to frame the issues before the

Court as encompassing the availability of injunctive re-

lief under ‘‘environmental statutes’ generally. Amici

benefit from laws such as ANILCA, the National Environ-

mental Protect Act (NEPA), 42 U.S.C. §§ 4321-4361 (1982)

and the Clean Air Act, 42 U.S.C. §¢ 7401-7642 (1982), and

are directly affected by the availability of injunctive re-

lief for violations of those statutes.

Petitioners’ misreading of ANILCA and their attempt

to apply holdings specific to ANILCA section 810 to other

environmental statutes directly implicate the interest of

amici and form the basis for amici’s participation. While

amici believe that ANILCA sets the parameters of this

case, the petitioners’ attempt to expand the case beyond the

confines of ANILCA provides the major impetus for the

participation of amici.’

41 The State of Alaska, which joins in this brief, of course,

considers the issue of the proper injunction standard for an

ANILCA section 810 violation of sufficient significance, standing

alone, for its participation in this case.

3

SUMMARY OF ARGUMENT

Upon determining tbat the Secretary of the Interior,

as a matter of strong likelihood, substantially violated the

Alaska National Interest Lands Conservation Act (ANIL-

CA) section 810, the district court must decide the appro-

priate remedy. While courts exercise equitable discretion

in forming a remedy, the violated statute both limits and

defines the discretionary boundaries. The courts must

order relief in light of the objectives of the statute, bear-

ing in mind congressional purpose, policy, and mandate.

The courts’ equitable discretion applies only to the for-

mulation of remedies; the courts have no discretion to

deny a remedy altogether, thereby denying enforcement

of a legislative act.

Congress has the power to completely control judicial

equitable discretion, and it has the power to guide and

limit the exercise of the courts’ discretion through its

statutory enactments. In determining the appropriate

remedy for an ANILCA section 810 violation, the Court

must look to ANILCA itself to discern congressional policy

and the appropriate parameters of equitable discretion.

ANILCA presents a clear policy for protection of sub-

sistence uses of Alaska rural residents. The statutory pro-

visions apparently violated by the Secretary of the Interior

form the sole mechanism for meaningful particiation by

Alaska rural subsistence users in the subsistence manage-

ment process. Failure to follow the ANILCA section 810

procedures skews the entire decision-making process and

could seriously jeopardize subsistence uses. Congress’s in-

tent is clearly stated in ANILCA itself and ‘in its legislative

history: subsistence uses should be protected, and the

mechanism codified by ANILCA section 810 represents the

only manner congressionally determined as appropriate to

provide that protection. ANILCA section 810 severely

limits equitable discretion as part of its protection of sub-

sistence uses.

The Ninth Cireuit’s standard for issuance of an in-

junction for an ANILCA section 810 violation properly re-

flects the limits on discretion imposed by ANILCA. The

Ninth Circuit standard imposes a presumption which the

Secretary of the Interior must overcome to avoid the in-

junction. In this manner, the Ninth Circuit is sensitive to

Congress’s strong policy of protecting subsistence uses,

while maintaining its discretion to deny injunctions in un-

usual cases.

ra’

Vv

ARGUMENT

I. INTRODUCTION

In People of the Vilage of Gambell v. Hodel, 774 F.2d

1414 (9th Cir. 1985), the Court of Appeals affirmed the

District Court’s finding that the Villagers of Gambell

established a strong likelihood of success on the merits—

that the Secretary of the Intevior substantially violated

section 810 of the Alaska National Interest Lands Conser-

vation Act (ANILCA), 16 U.S.C. § 3120 (1982). 774 F.2d at

1422. Having so determined, the court considered the best

method of achieving compliance with ANILCA section 810

in light of Congress’s expressly stated policy of protecting

the subsistence uses and culture of Alaska rural residents.

16 U.S.C. § 3114 (1982).

Similarly, this Court should reach the question of the

propriety of the issuance of an injunction in this case, and

5

the standard under which an injunction issues for ANILCA

section 810 violations generally, only after it determines

that the district court and the court of appeals properly

found that the Villagers have a strong likelihood of success

on the merits. Amici assume in the discussion that follows

that the Secretary of the Interior substantially violated

ANILCA section 810, and that the Court must decide the

proper remedy.

II. ONCE THE COURT DETERMINES THAT, AS A

MATTER OF STRONG LIKELIHOOD, THE SEC-

RETARY OF THE INTERIOR VIOLATED ANILCA

SECTION 810, ONLY THE QUESTION OF HOW

BEST TO ACHIEVE STATUTORY COMPLIANCE

REMAINS

A. The Court Must Look to ANILCA to Determine

the Parameters of Its Equitable Discretion In

Forming an Appropriate Remedy

In City of Milwaukee v. Illinois, 451 U.S. 304 (1981),

the Court held that Congress preempted the application of

federal common law by adopting a comprehensive regula-

tory scheme, specifically the Federal Water Pollution Con-

trol Act, 33 U.S.C. §§ 1151-1376. 451-U.S. at 317. The Court

found that the appropriate division of functions between

the Judiciary and Congress applies to the courts’ ability to

form federal common law. 451 U.S. at 312; see Erie R. Co.

v. Tompkins, 304 U.S. 64, 78 (1938) (federal courts are not

courts of general common law). Thus, courts may not

‘** * judicially decree [ ] what accords with ‘‘common sense

and the public weal’’’ when Congress has addressed the

problem.’’ City of Milwaukee, 451 U.S. at 315, quoting

TVA v. Hill, 437 U.S. 153, 195 (1978).

Congress has left no doubt that, with respect to the

federal interest in the public lands of Alaska, ANILCA

occupies the field through a comprehensive regulatory

scheme; with respect to the conservation units established

by the Act

‘*[ ANILCA] provides sufficient protection for the na-

tional interest in the scenic, natural, cultural and en-

vironmental values on the public lands in Alaska, and

at the same time provides adequate opportunity for

satisfaction of the economic and social needs of the

State of-Alaska and its people; accordingly, the desig-

nation and disposition of the public lands in Alaska

pursuant to this Act are found to represent a proper

balance between the reservation of national conserva-

tion system units and those public lands necessary and

appropriate for more intensive use and disposition,

and this Congress believes that the need for future

legislation designating new conservation system units,

new national conservation areas, or new national

recreation areas, has been obviated thereby.’’

16 U.S.C. § 3101(d) (Congressional statement of purpose).

ANILCA establishes a preference for subsistence use of

fish and wildlife on federal lands. 16 U.S.C. §§ 3114, 3115.

ANILCA defines the subsistence uses of rural Alaskans and

it determines the protections afforded those uses. 16 U.S.C.

§§ 3113, 3114, 3120. Judicial remedies for violation of the

subsistence use protection embodied in ANILCA must be

consistent with congressional purpose. See City of Mil-

waukee, 451 U.S. at 312 (federal rules in ‘‘areas of nat-

ional concern’’ are made by Congress—not the courts).

Although City of Milwaukee concerns the preemption

of federal common law by a comprehensive regulatory

scheme, the Court’s citation of TVA v. Hill, 437 U.S. 153,

194-95 (1978), strongly suggests that a similar analysis ap-

plies to the courts’ equitable jurisdiction, albeit somewhat

more selectively. See e.g., Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982); Albemarle Paper Co. v. Moody, 422

U.S. 405, 415-17 (1975) (statutes guide and limit equitable

discretion). City of Milwaukee and ANILCA’s statement

of purpose make clear that ANILCA is the only relevant

source of law and the only relevant source for determin-

ing the appropriate level of discretion (if any) applicable

to formation of the remedy with respect to an ANILCA

violation.

B. Statutory Violation Requires Statutory Compli-

ance, and Any Remedy Must Be Consistent With

the Statute

Assuming that the lower courts properly determined

that, in all likelihood, the Secretary of the Interior sub-

stantially violated ANILCA section 810, only the question

of remedy remains. The Court cannot decide simply to

ignore conduct violative of ANILCA section 810; some

remedy, both consistent with and in furtherance of

ANILCA must be implemented. See United States v. Amer-

ican Tobacco Co., 221 U.S. 106 185 (1910) (discretion of

courts bounded by ‘‘duty of giving complete and efficacious

effect to the prohibition of the statute.’’); see also Gilbert-

vile Trucking Co., v. United States, 371 U.S. 115, 130

(1962). Failure to remedy the statutory violation would

defeat congressional mandate and reformulate courts as

legislators. See Osborn v. Bank of United States, 2?

U.S. (9 Wheat.) 738, 866 (1824) (‘‘When [courts] are said

to exercise a discretion it is a mere legal discretion, a dis-

cretion to be exercised in discerning the course of the law.

.. . Judicial power is never exercised for the purpose of

giving effect to the will of the Judge; always for purpose

of giving effect to the will of the Legislature; or, in other

———E>EEI—E

words, to the will of the law.’’) Any ‘‘balancing’’ that

oceurs concerns the appropriateness of a particular remedy,

not whether the violation should be remedied. See Romero-

Barcelo, 456 U.S. at 320 (FWPCA permits the district court

to order relief necessary to secure prompt compliance with

the Act) ; Hecht Co. v. Bowles, 321 U.S. 321, 326 (1944) ( be-

cause an injunction would have ‘‘no effect by way of in-

suring better compliance in the future’’ it was inappro-

priate).

Determination of the proper remedy for statutory vio-

lation depends on Congress’s purposes underlying and de-

fining the statute. See, e.g., Albemarle, 422 U.S. at 426;

Hecht, 321 U.S. at 331 (the court exercises its power ‘‘in

light of the large objectives of the Act’’). ANILCA and

other environmental statutes—particularly in light of the

often sensitive nature of the environment itself as well as

the decision-making process preceding projects «effecting

the environment—present cases in which courts must take

special care in considering congressional intent in determin-

ing remedies for statutory violations. See discussion in

§§ VI, VII infra.

III. CONGRESS HAS THE AUTHORITY TO LIMIT

JUDICIAL EXERCISE OF EQUITABLE DISCRE-

TION

A. The Violated Statute Forms the Limits of the

Appropriate Remedy

Congress can, and does, limit judicial equitable dis-

cretion. See, e.g., United States v. Rodgers, 461 U.S. 677,

709 (1983) ; Romero-Barcelo, 456 U.S. at 320; TVA v. Hill,

437 U.S. at 194-95; Albemarle, 422 U.S. at 415-17; Arizona

v. California, 373 U.S. 546, 565-66 (1963) ; Hecht, 321 U.S.

at 329. In TVA v. Hill, 437 U.S. at 194-95, the Court found

that Congress can remove equitable jurisdiction from

courts in its entirety:

‘Congress has spoken in the plainest of words... .

Once the meaning of an enactment is discerned and

its constitutionality determined, the judicial process

comes to an end.’’

Thus, even in the face of what the district, court termed

an ‘‘absurd result,’’ id. at 196 (Powell, J. dissenting), the

Court could not ‘‘ preempt congressional action by judically

decreeing’’ a ‘‘common sense result.’’ Jd. at 195. TVA v.

Hill leaves no doubt that the exercise of congressional

power limits judicial equitable remedies, and, at times,

forecloses all discretion upon a finding of statutory vio-

lation.

In most instances, Congress does not foreclose all ju-

dicial equitable discretion. E..g., Romero-Barcelo, 456 U.S.

at 313 (preclusion of all equitable discretion ‘‘not lightly

assumed’’). However, statutes define and limit the courts’

power to formulate remedies. See, e.g., id., Albemarle, 422

U.S. at 415-17.

The courts’ role in enforcing statutory compliance

places the statutory scheme with its congressional purposes

and goals along side the courts’ equitable powers, with the

statute defining and limiting equitable discretion. In fact,

the issue of the proper standard by which to evaluate the

propriety of injunctive relief in light of the probable

statutory violation can usefully be framed as an attempt

to determine the proper accomodation between congres-

sional statutory mandate and judicial equitable discretion.

See Id. The courts’ balance of competing interests to de-

termine the appropriate means of compliance with congres-

10

sional mandate, requires, in essence, a policy decision (al-

beit a judicial policy decision). This is particularly true

in cases of violations of environmental statutes. See dis-

cussion § VI infra. Because the courts engage in bal-

ancing, they must have congressional mandate clearly in

mind and their discretion must embody statutory dictates.

The Court’s cases give guidance as to the proper ac-

comodation of statutory mandate and equitable discretion.

In Albemarle, 422 U.S. at 405, 415-417, for example, the

Court. discussing equitable relief in Title VII cases, stated :

[S]uch discretionary choices are not left to a court’s

‘‘inclination, but to its judgment; and its judgment

is to be guided by sound legal principles.’’ United

States v. Burr, 25 F. Cas. 30, 35 (CC Va 1807) (Mar-

shall, C.J.). ... A court must exercise this power

‘tin light of the large objectives of the Act,’’ Hecht

Co. v. Bowles, 321 U.S. 321, 331, (1944). That the

court’s discretion is equitable in nature, see Curtis

v. Loether, 415 U.S. 189, 197 (1974), hardly means

that is is unfettered by meaningful standards or

shielded from thorough appellate review. ... It is

true that ‘‘{e]quity eschews mechanical rules .. .

[and] depends on flexibility.’’ Holmber v. Armbrecht,

327 U.S. 392, 396 (1946). But when Congress invokes

the Chancellor’s conscience to furnish transcedent

legislative purposes, what is required is the principled

application of standards consistent with those pur-

poses and not ‘‘equity [which] varies like the Chancel-

lor’s foot.’? Important national goals would be frus-

trated by a regime of discretion that ‘‘produce[d|

different results for breaches of duty in situations

that cannot be differentiated in policy.’’ Moragne v.

States Marine Lines, 398 U.S. 75, 405 (1970).

Similarly. in United States v. Rodgers, 461 U.S. 677,

708-09 (1983), the Court found that the federal codifica-

11

tion of forced judicial sales, 26 U.S.C. § 7403 (1982), al-

lowed ‘‘limited equitable discretion’’ to consider the Gov-

ernment’s interests and the interest of innocent third

parties. Congress’s amendment to the language of sec-

tion 7403 from ‘‘shall decree a sale’’ to ‘‘may decree a

sale’’ persuaded the Court that the statute allowed limited

discretion. 461 U.S. at 705-09. See also Arizona v. Cali-

fornia, 373 U.S. 546, 565-66 (1963) (where Congress has

provided its own method for allocating water, courts can-

not substitute their own version of equitable apportion-

ment). In Hecht, 321 U.S. at 330-31, the court stated that

‘‘Court and agency are the means adopted to attain the

prescribed end, and so far as their duties are defined by

the words of the statute, those words should be construed

so as to attain that end through co-ordinated action,’’ and

that discretion must be ‘‘exercised in light of the large

objectives of the Act.’’ The Hecht Court found that in

that particular case, continuing statutory violation was

unlikely and an injunction need not necessarily issue in

order to assure compliance with the Act. Statutory lan-

guage and congressional objective offer the greatest guid-

ance to defining the limits of equitable discretion.

B. The Court in Romero-Barcelo Recognized and

Further Defined the Limits of Equitable Discre-

tion

The Solicitor General and the oil companies view

Romero-Barcelo as a statement of judicial equitable au-

thority to balance statutory enforcement against ‘‘com-

peting interests.’’ Romero-Barcelo contemplates a balance

only of remedies: ‘‘We read the FWPCA as permitting

the exercise of a court’s equitable discretion . . . to order re-

12

lief that will achieve compliance with Act.’’ 456 U.S. at

318 (emphasis in original). The issue is how to enforce

the statute, not whether to do so. Further, the Romero-

Barcelo Court recognized that the FWPCA limited the

courts’ discretion in formulating remedies:

‘‘We do not read the FWPCA as foreclosing com-

pletely the exercise of the court’s discretion. Rather

than requiring a district court to issue an injunction

for any and all statutory violations, the FWPCA

permits the district court to order that relief it con-

siders necessary to secure prompt compliance with

the Act.”’

456 U.S. at 320 (emphasis added).

The Court concluded that the FWPCA did not com-

pletely foreclose equitable discretion only after determin-

ing that injunction was not the only means of ensuring stat-

utory compliance, that the congressional objective could be

protected by other remedies, and that the district court’s

consideration of appropriate remedies neither ignored the

statutory violation nor undercut the purpose and function

of the FWPCA permit system. 456 U.S. at 314-15. Even

in light of these conclusions. the Court remanded the case

for further consideration of the propriety of the injunction

denial. 456 U.S. at 320.

The present case involves a continuing violation of

a statute that in no uncertain terms delineates the Sec-

retary of the Interior’s duties regarding evaluation of the

subsistence uses of Alaska Natives. Following the guidance

of Romero-Barcelo, determination of the limits of equitable

discretion imposed by ANILCA section 810 depends on

whether relief other than an injunction can ensure statu-

tory compliance, whether congressional objectives can be

13

protected by other remedies, and whether other remedies

will ignore or undercut the purposes and functions of

ANILCA. The subject of the inquiry is ANILCA itself.

IV. ANICLA SEVERELY LIMITS EQUITABLE DIS-

CRETION

A. ANILCA Unambiguously Requires the Secretary

of the Interior to Act to Protect the Decision-

making Process and the Subsistence Needs of

Rural Alaskans

Section 810 of ANILCA, 16 U.S.C. § 3120, the subject

of this litigation, states unequivocally the duties of the

Secretary of the Interior:

‘‘In determining whether to withdraw, reserve, lease

or otherwise permit the use, occupancy, or disposi-

tion of public lands under any provision of law au-

thorizing such actions, the head of the Federal agency

having primary jurisdiction over such lands or his

designee shall evaluate the effect of such use, occu-

pancy, or disposition on subsistence uses and needs,

the availability of other lands for the purposes sought

to be achieved, and other alternatives which would

reduce or eliminate the use. occupancy, or disposition

of public lands needed for subsistence purposes. No

such withdrawal, reservation, lease, permit, or other

use, occupancy or disposition of such lands which

would significantly restrict subsistence uses shall be

effected until the head of such Federal agency

(1) gives notice to appropriate [State and local agen-

cies];

(2) gives notice of, and holds a hearing in the vicinity

of the area involved; and

(3) determines that (A) such a significant restric-

tion of subsistence uses is necessary, consistent

with sound management principles for the utiliza-

tion of the public lands, (B) the proposed activity

14

will involve the minimal amount of public lands

necessary to accomplish the purposes of such use,

occupancy, or other disposition, and, (C) reason-

able steps will be taken to minimize adverse im-

pacts upon subsistence uses and resources result-

ing from such actions.’’

ANILCA section 810, 16 U.S.C. § 3120(a). Subsection (a)

of section 810 is entitled ‘‘Factors considered, require-

ments,’’ and states that the Secretary ‘‘shall evaluate,’’

leaving no option for the Secretary to follow another pro-

cedure or fail to act (emphasis added). Similarly, the

statute requires that for any land use that significantly re-

stricts subsistence uses, including leases, the Secretary

shall follow notice and hearing procedures. Subsection

(b) requires that the Secretary shall provide notice and

hearing as part of any environmental impact statement

filed pursuant to 42 U.S.C. § 4332(2)(c) (NEPA), for

proposed actions under section 810. Congress leaves no

doubt that ANILCA, on its face, requires that the Secre-

tary follow section 810 procedures before allowing leasing

of restricted lands for non-subsistence purposes. Cf.

United States v. Rodgers, 461 U.S. at 705-09 (where Con-

gress substituted ‘‘may’’ for ‘‘shall’’ some judicial dis-

eretion can be inferred).

While the language of ANILCA section 810 is clear,

Congress also included in Title VIII of ANILCA a Con-

gressional Declaration of Findings, 16 U.S.C. §3111; a

Congressional Statement of Policy, 16 U.S.C. § 3112; and

a statement of Preference for Subsistence Uses, 16 U.S.C.

§ 3114, all of which further reflect the importance of the

protection of subsistence uses and Congress’ intent strict-

ly to enforce ANILCA: ‘‘It is . .. the policy of Con-

gress that... utilization of the public lands in Alaska

15

is to cause the least adverse impact on rural residents

who depend upon subsistence uses of the resources of

such lands... .’’ 16 U.S.C. § 3112.

‘‘{Tjn order to fulfill the policies and purposes of

the Alaska Native Claims Settlement Act [43 U.S.C. § 1601

et seq.] and as a matter of equity, it is necessary for Con-

gress to invoke its constitutional authority, over Native

affairs and its constitutional authority under the property

clause and the commerce clause to protect and provide

the opportunity for continued subsistence uses on public

lands by Native and non-Native rural residents.’’ 16

U.S.C. § 3111(4). With respect to land use decisions, Con-

gress chose to protect and provide for continued subsist-

ence uses through mandatory notice and hearing pro-

cedures, to be implemented before the use of any public

lands for other than subsistence purposes, including leasing.

In fulfilling its policy that ‘‘utilization of public lands

in Alaska is to cause the least adverse impact possible

on rural residents who depend upon subsistence uses... ,’’

16 U.S.C. § 3112, Congress created the mandatory notice

and hearing requirements of section 810, requiring the

Secretary to analyze and make findings before acting in

a manner adverse to subsistence uses. The policy of pro-

tection and the mandatory statutory procedure for imple-

mentation of the protection form a unit for preservation

of subsistence uses.

Determination of appropriate non-subsistence uses of

public lands depends entirely on the procedures of section

810. Congress created no other mechanism for considera-

tion of reduction or elimination of subsistence uses. The

16

procedural mechanism embodies the substantive right.

Congress manifested its interest in and concern for sub-

sistence uses and implemented one mandatory system to

allow consideration of competing uses. Only through en-

forcement of the statutory requirements as created can

the policy and purpose of ANILCA be properly enforced.

The language of the statute creates a legal duty to act ina

prescribed manner, without alternative. .

B. The Legislative History of ANILCA Further Sup-

ports A Strict Reading of the Statute Limiting

Remedies for Violation

_ Representative Udall was the primary author and

sponsor of the subsistence provisions of ANILCA. The

following statements of Representative Udall make it clear

that Congress had every intention of protecting subsistence

uses through the requirements of ANILCA:

‘‘fWje promised that we would work to try to

achieve legislation which would include a subsistence

management process to insure meaningful participa-

tion by rural people in decisions of both the State and

Federal governments which so effect their culture

and their lives, and which would provide a mechanism

to insure that both State and Federal governments

discharge their responsibilities to protect subsistence

resources and uses-in an adequate and timely fashion.’’

125 Cong. Rec. 9904 (1979). The comments reflect ANIL-

CA’s substantive nature and goals:

‘‘fRjural residents and especially Native people

expressed concern that their use of fish, wildlife and

other wild renewable resources for subsistence must

be protected and permitted to continne.... It was in

response to these concerns [that Title VIII of ANIL-

CA was written].’’

17

Id. Congress recognized high stakes in enacting the sub-

sistence review procedures: ‘‘[{Subsistence] is a way of

life, a unique and endangered way of life that [Title VIIT]

fully protects. ...’’ Id. at 9901. And further:

‘If for any reason... the fish stocks and wildlife

populations which are the subject of Alaska Native

subsistence uses are significantly reduced, either as

the result of the degradations of habitat [or other

activities], then the Alaska Native Culture as we know

it will simply cease to exist.”’

126 Cong. Ree. 29278. (1980). ANILCA section 810 pro-

vides the only mechanisms for subsistence protection in

land use decisions such as oi! leasing:

‘‘fTitle VIII] contain{[s] management provisions

which recognize the responsibility of the Federal gov-

ernment to protect the opportunity from generation

to generation for the continuation of subsistence use

9

Id.

Congress expressed an awareness of a grave threat

to subsistence culture and believed that ANILCA pro-

tected rural Alaskans’ needs. ANILCA is self-contained ;

Congress declared its intent to protect subsistence needs

exactly in the manner prescribed by ANILCA.

V. BECAUSE ANILCA MANDATES SPECIFIC PRO-

CEDURES, THE SEPARATION OF POWERS DOC-

TRINE LIMITS FQUITABLE DISCRETION

Once Congress has legislated specific remedies for

statutory violations, it, in essence, preempts judicial dis-

cretion under the separation of powers doctrine:

‘‘Our system of government is, after all, a ‘:ipartite

one, with each Branch having certain defined func-

18

tions delegated to it by the Constitution. While ‘ [i]t

is emphatically the province and duty of the judicial

department to say what the law is,’ Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803), it is

equally—and emphatically—the exclusive province of

the Congress not only to formulate legislative policies.

mandate programs and projects, but to establish their

relative priority for the Nation. Once Congress, ex-

ercising its delegated powers, has decided the order

of priorities in a given area, it is for the Executive

to administer the laws and for the courts to enforce

them... .’’

TVA v. Hill, 437 U.S. at 194. This is the case even where

the result is ‘‘absurd.’’ 7d. at 196 (Powell dissenting) ;

see Wilderness Society v. Morton, 479 F.2d 842 (D.C. Cir.),

cert, denied, 411 U.S. 917 (1973) (‘‘it is an abiding function

of the courts . . . to require the Executive to abide by the

limitations prescribed by the, Legislature’’); see also Os-

born v. Bank of United States, 22 U.S. (9 Wheat.) at 866.

Congress has spoken with respect to subsistence uses:

The protection of Alaska rural residents’ way-of-life de-

pen’s on federal action. ANILCA requires procedural

integrity. Non-injunctive relief cannot protect the subsis-

tence review process. Section 810 requires that a lease of

land affecting subsistences uses be subject to section 810

procedures. The statute creates no option for non-com-

pliance or partial compliance.

VI. CONGRESSIONAL PURPOSE AND THE INTEGRI-

TY OF THE SUBSISTENCE USE ANALYSIS AND

HEARING PROCESS UNDER ANILCA CAN BE

PROTECTED ONLY BY INJUNCTIVE RELIEF,

EXCEPT IN UNUSUAL CIRCUMSTANCES

ANILCA section 810 is designed to influence and

control the land use decision-making process from a very

oo

19

early stage. It is a procedural device with substantative

purposes. See 16 U.S.C. section 3120(d). As long as the

Secretary complies with the statute, public lands under

his control can be used as the Secretary sees fit. Jd. But

the statute operates properly—according to Congressional

design—if, and only if, the Secretary ‘‘compl[ies] with the

procedural requirements.’’ 16 U.S.C. § 312(d). Failure of

the Secretary to comply with the procedural requirements

skews the decision-making process and defeats Congress’s

policy to evaluate and determine whether a project will

‘‘cause the least adverse impact on rural residents who

depend upon subsistence uses.’’ 16 U.S.C. § 3112(1). Fail-

ure to comply with ANILCA section 810 also defeats Con-

gress’s intent to ‘‘provide a mechanism to insure .. .

protect[ion of] subsistence resources and uses in an

adequate and timely fashion.’’ 125 Cong. Rec. 9904 (1979)

(comments of Rep. Udall). :

Obviously, if the Secretary implements a project af-

fecting subsistence uses without following ANILCA pro-

cedures, part of the harm intended to be prevented is suf-

fered and the integrity of the decision-making process

destroyed. See, e.g., Massachusetts v. Watt, 716 F.2d 946,

952 (1st Cir. 1983) (harm under NEPA occurs when in-

formed environmental consideration is bypassed). Fur-

ther, the specific function of ANILCA section 810—the

protection of subsistence uses—is jeopardized because the

decision-maker cannot make informed findings and, ulti-

mately, an informed decision. The Secretary has not heard

from the people most knowledgable about subsistence uses.

Thus, the statute, the mechanism, the decision-making

process, and potentially subsistence uses themselves have

been compromised.

20

In light of the foregoing, the court must form a remedy

for the Secretary’s failure. The potential harm is cata-

strophic. 126 Cong. Rec. 29278 (1980) (comments of Rep.

Udall) (if subsistence uses are not protected, ‘‘ Alaska Na-

tive Culture as we know it will simply cease to exist’’). In

light of the presumptions in favor of subsistence uses, and

Congress’s expressed concern, it is difficult to imagine a

situation in which any hardship could outweigh the need to

enforce the mechanism protecting subsistence uses. In very

unusual circumstances, the delay caused by evaluation of

the effect on subsistence uses of some federal action could

adversely affect subsistence uses. Cf. Alpine Lakes Protec-

tion Society v. Schlapfer, 518 F.2d 1089 (9th Cir. 1975) (de-

lay for EIS under NEPA could cause insect infestation and

forest loss).

If the court allows a project to continue without the

proper subsistence use evaluation, the decision-making pro-

cess is compromised and the threat to subsistence use be-

comes, potentially, much more immediate. The further

along a project progresses, the greater the stake, both fi-

nancially and institutionally. See Massachusetts v. Watt,

716 F.2d at 953.

x

The injunction is an extension of congressional intent

in the section 810 situation. Nothing else will ensure statu-

tory compliance. Unlike the situation in Romero-Barcelo,

456 U.S. at 314, where the Navy could obtain a permit under

the FWPCA without distorting the decision-making pro-

cess, here failure to follow ANILCA procedures precludes

future compliance with the mechanism of section 810. Con-

21

gress has spoken emphatically in favor of subsistence uses

and, in doing so, has severely limited remedial relief.?

VII. THE NINTH CIRCUIT STANDARD APPLIED

IN THIS CASE REFLECTS CONGRESSIONAL

LIMITS ON EQUITABLE RELIEF WHILE AL-

LOWING A SIGNIFICANT AND STATUTORILY

APPROPRIATE LEVEL OF DISCRETION

In People of the Village of Gambell v. Hodel, 774 ¥.2d

1414 (9th Cir. 1985), the Ninth Circuit first affirmed the

district court’s finding that the Villagers showed a strong

likelihood of success on the merits. Jd. at 1422. The court

then balanced the irreparable harms in determining the

propriety of injunctive relief to maintain the status quo in

light of the probable statutory violation. Jd. at 1422-26. In

doing so, the court applied a presumption to the equation

which placed the burden on the probable statute-violator to

show the inappropriateness of an injunction. Jd. at 1422-23.

The Secretary in Gambell failed to meet his burden and the

Ninth Circuit issued the injunction. Jd. at 1426.

The burden applied in Gambell is a heavy one: the

probable statute-violator must show rare or unusual cir-

cumstances to convince the court that the statutory viola-

2 The Solicitor General agrues that compliance with

ANILCA could occur at the later “development and production”

stage without prejudice because the “lease” stage is not a threat

to subsistence uses. Federal Petitioner's Brief at 14. Congress,

however, determined that a lease of land requires that the

ANILCA section 810 procedure be followed. 16 U.S.C. § 3120.

Only if the Secretary considers subsistence prior to leasing can

he properly consider “the availability of other lands for the

purposes sought to be achieved” with subsistence uses in mind

—as required by section 810. Congress has specified use of the

procedure at the time of the lease. The Secretary has no option

to do the procedure at some other time.

22

tion should be allowed to continue unremedied and that an

injunction should not issue. The burden applied by the

Ninth Circuit appropriately accounts for the emphatic con-

gressional policy of protecting subsistence uses and the

operation of the sole—and exclusive—statutory method for

determining priorities where an action affects subsist-

ence uses. At the same time, the Ninth Circuit rule does

not foreclose discretion in the rare or unusual case in

which congressional purpose and intent would be defeated

by the grant of an injunction.

First, the Ninth Circuit standard applied in Gambell is

not a ‘‘per se rule’’—it does not require that an injunction

automatically issue upon a showing of statutory violation

or probable statutory violation. In three published NEPA

cases, the Ninth Circuit has applied the same injunction

standard applied in Gambell under ANILCA and deter-

mined that, on balance, the unusual circumstances outweigh

the presumption in favor of injunctive relief.

In American Motorcyclist v. Watt, 714 F.2d 926, 966

(9th Cir. 1983), the court determined that ‘‘ public concerns

other than the failure to comply with NEPA must be

weighed in determining whether to grant an injunction.”’

The court in American Motorcyclist, citing Romero-Barcelo,

denied the injunction for fear of resultant permanent dam-

age to fragile desert resources after determining that the

_ district court properly engaged in the ‘‘required weighing”’

and consideration of the public interest. Jd. at 966-67. Sim-

ilarly, in Alpine Lakes Protection Society v. Schlapfer, 518

F.2d 1089, 1090 (9th Cir. 1975), the Ninth Cireuit denied a

NEPA injunction because it would lead to timber damage

and insect infestation, a harm which the court found out-

weighed the possible reduction of the area’s wilderness

characteristics. In Forelaws on Board v. Johnson, 743 F.2d

23

677, 688 (9th Cir. 1984), the court denied an injunction as in-

appropriate in light of disruption of long-term contracts

entered into pursuant to another federal act that mandated

their implementation with ‘‘a certain amount of urgency.’’

See also Steamboaters v. FERC, 777 ¥.2d 1384, 1385-86

(9th Cir. 1985) (presumption of harm from NEPA viola-

toon outweighed ‘‘ public interest in promoting small hydro-

power projects’’); Save Our Ecosystems v. Clark, 747 F.2d

1240, 1250 (9th Cir. 1984) (presumption outweighed defen-

dant’s showing). Obviously, the Ninth Cireuit standard

applied in the Gambell case to a violation of ANILCA sec-

tion 810 is not a ‘‘per se’’ injunction rule.

The Ninth Circuit standard ailows the statute violator

or probable violator to overcome the injunction presump-

tion. Appropriately, the burden on the violator is high. The

burden reflects ANILCA’s protection of subsistence uses

and Congress’s choice of the decision-making process while

allowing the courts to exercise their historical equitable

diseretion to achieve compliance with the purposes of the

Act as well as the letter of the statute. E.g., Romero-

Barcelo, 456 U.S. at 314.

Applying the Ninth Circuit standard to factual situa-

tions in Hecht and Romero-Barcelo would allow the court

to reach the appropriate results. In Hecht, 321 U.S. at 326,

the Court determined that an injunction would not further

compliance. See Plater, Statutory Violations and Equitable

Discretion, 70 Cal.L.Rev. 524, 546-53 (1982). [echt involved

a remedy only for past violations. Such a situation, partic-

ularly one involving a violation of ANILCA or NEPA, see

discussion in section VI supra, would undoubtedly rise to

the level of unusual circumstances. It is difficult to imagine

an ANILCA section 810 violation that had only retrospec-

24

tive effect, but in the face of such a situation, the Ninth Cir-

cuit’s standard certainly would account for it in its bal-

ance.

In Romero-Barcelo, the Court, reviewing the navy’s re-

lease of ordnance from aircraft into navigable waters as the

basis for an injunction under the FWPCA, 33 U.S.C.

§§ 1251-1376 (1982), pointed to the district court’s deter-

mination that (1) the Navy’s control of the release area

probably constituted a positive factor in the area’s ecology,

and (2) because of the Navy’s important training functions,

injunctive relief would cause grievous harms to the welfare

of the Navy and the nation. 456 U.S. at 310 & n. 4. The

Court also determined that the Navy’s action ‘‘neither

ignored the statutory violation nor undercut the purpose

and function of the permit system.’’ 7d. at 315. The Ninth

Circuit’s formulation envisions consideration of exactly

such factors. See Forelaws on Board, 743 F.2d at 966, Al-

pine Lakes Protection Society, 518 F.2d at 1090; see also

Steamboater v. FERC, 777 F.2d at 1385-86. Similar find-

ings under ANILCA are very unlikely, but, again, would

present unusual circumstances for balance under the Ninth

Circuit standard.

‘ Congress severely limited judicial equitable discretion

by enacting the strict requirements of ANILCA section 810

and instituted protection of the subsistence needs and uses

of rural Alaskans through a well-defined mechanism. The

Ninth Cireuit standard applied in Gambell is sensitive both

to the congressional mandate and legislated presumption

and to the possibility of unusual circumstances which re-

quire discretion and nuance in formulating remedies to

achieve compliance in an equitable manner. As such, the

Ninth Cireuit standard applied in Gambell consistently fol-

25

lows the teachings of Romero-Barcelo, TVA v. Hill, and

Hecht.

VIII. CONSIDERATION OF THE APPROPRIATE IN-

JUNCTION STANDARD IN NEPA CASES IS

IRRELEVANT TO THIS LITIGATION

The Solicitor General and the oil companies attack

the Ninth Circuit’s use of its injunction standard in ‘‘en-

vironmental’’ cases. ANILCA section 810, not ‘‘environ-

mental statutes,’’ is the subject of this litigation. Because

Congress through its legislative process determines the

extent of judicial equitable discretion, see e.g., Hecht, 321

U.S. at 331, only ANILCA gives guidance with respect to

the appropriate standard under which injunctive relief

should be granted. The standard applicable for violations

of other environmental statutes cases depends on the word-

ing of those statutes and a full review of the statute’s

legislative history—an inquiry inappropriate in this

ANILCA section 810 case.

The Solicitor General’s brief best illustrates the need

for a statute-specific inquiry. While the Solicitor frames

the question on certiorari as whether an injunction should

issue for a likely violation of ‘‘an environmental statute,”’’

he is forced repeatedly to return to the text of ANILCA to

argue the propriety of the injunction in this case. E.g.

Federal Petitioners Brief at 21-22, 22, 23, 24, 25. The Sol-

icitor’s analysis of ANILCA gives no guidance for injunc-

tive issuance standards under other statutes, other than

to underline the need to review each statute separately.

Only ANILCA is relevant to the specific consideration

of hardship factors in this case. The Ninth Cireuit prop-

erly applied a presumption in favor of injunctive relief

26

for an ANILCA section 810 violation that reflects con-

gressional intent while allowing sufficient discretion to

deal appropriately with unforseeable cases.

Congress requires that Alaskan rural residents re-

ceive the opportunity to enter the decision-making

process from the beginning. Congress determined the

sole process by which Alaska rural residents’ interests

can be heard and considered. When the Secretary fails

to follow the mandated procedures, decision-making is

distorted and the natives’ interests lose protection. The

Secretary can decide appropriate land uses only according

to the legal mechanism. Injunctive relief protects the

intergrity of the process.

4

— ar anc ee -

27

IX. CONCLUSION

For the foregoing reasons, amici submit that the

decision of the Ninth Circuit should be affirmed.

Dated: September 30, 1986

JOHN K. VAN DE KAMP

Attorney General of California

THEODORA BERGER

(Counsel of Record) ,

Assistant Attorney General

KEN ALEX

Deputy Attorney General

350 McAllister

6000 State Building

San Francisco, CA 94102

(415) 557-4111

Attorneys for Amicus State

of California ex rel. John K.

Van de Kamp, Attorney General

of California