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

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In the Supreme Court of the United 5. —

OCTOBER TERM, 1986

| Supreme Court, U.S, ©

DONALD P. HODEL, SECRETARY OF THE INTERIOR;

and THE UNITED STATES DEPARTMENT OF THE

INTERIOR, and AMOCO PRODUCTION COMPANY,

et al.,

Petitioners,

vs.

PEOPLE OF THE VILLAGE OF GAMBELL, et al.,

Respondents.

AMICUS BRIEF OF NATURAL RESOURCES DE-

FENSE COUNCIL, SIERRA CLUB, ENVIRON-

MENTAL DEFENSE FUND, NATIONAL AUDUBON

SOCIETY, WILDERNESS SOCIETY, ENVIRON-

MENTAL POLICY INSTITUTE, TRUSTEES FOR

ALASKA, NORTHWEST COALITION FOR ALTER-

NATIVES TO PESTICIDES, and OREGON NATURAL

RESOURCES COUNCIL

MICHAEL AXLINE* LARRY SILVER

Assistant Professor of Law Sierra Club Legal Defense

Western Natural Resources Fund, Inc.

Law C’ nic 2044 Fillmore Street

University of Oregon San Francisco, CA 94115

School of Law (415) 567-6100

Eugene, OR 97403

(503) 686-3823

SARAH CHASIS

Natural Resources Defense

Council

122 E. 42nd Street

New York, NY 10168

(212) 949-0049

Attorneys for Amici Curiae

»Counsel of Record

E. L. Mann, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030 r \ 0

ISSUE PRESENTED

Did the Court of Appeals err by ordering that the

Department of Interior be enjoined from proceeding with

a lease sale in violation of a nondiscretionary duty imposed

by Congress in section 810(a) of the Alaska National In-

terest Lands Conservation Act (ANILCA), 16 U.S.C.

§ 3120(a)?

TABLE OF CONTENTS

STATEMENT OF INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

I THE COURT OF APPEAL’S OPINION IN

THIS CASE IS CONSISTENT WITH THE

PURPOSES OF SECTION 810(a) OF THE

ALASKA NATIONAL INTEREST LANDS

CONSERVATION ACT (ANMLC A)

A. Section 810(a) Imposes a Nondiscretion-

ary Duty Analogous to That Imposed by

Section 7 of the Endangered Species Act

B. The Procedural Nature of the Harm in

This Case Supports the Imposition of an

Injunction 2

C. Section 810 (a) of ANILCA Is Not Analog-

ous to Section 402 of the Clean Water

Act

II REFUSING TO ENFORCE A NONDISCRE-

TIONARY DUTY IS CONTRARY TO THE

DOCTRINES OF SEPARATION OF POWERS

AND CHECKS AND BALANCE

A. Federal Courts Must Enforce Procedural

Safeguards Imposed by Congress to Main-

tain the Separation of Powers ....................

B. The Constitution’s System of Checks and

Balances Requires the Judiciary to Insure

Executive Compliance With Legislative

.

10

12

13

III

III PETITIONERS HAVE NOT DEMON-

STRATED THAT THE COURT OF APPEALS

ABUSED ITS DISCRETION BY REQUIRING

AN INJUNCTION IN THIS CASE 16

A. Petitioners Have Not Accurately Analyzed

the Language and Purpose of Section

1 16

B. Section 810 (a) Compliance May Not Oc-

cur Subsequent to Leasing ae ae

IV INJUNCTIVE RELIEF DOES NOT PUNISH

THIRD PARTY BENEFICIARIES OF

AGENCY REFUSALS TO PERFORM NON-

DISCRETIONARY DUTIES S 21

1 ————— 24

TABLE OF AUTHORITIES

Cases

Alaska v. Andrus, 580 F.2d 465 (D.C. Cir.) 7 12

Alpine Lakes Protection Society v. Schlapfer, 518 F.2d

e —-—ͤ——e¼ 4-5

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

I ainda cesta tebhiinnandndtaen sieneetictacangtitianeneente a

American Textile Manufacturers Institute, Inc. v. Don-

r ...... H½ 13

Boomer v. Atlantic Cement Co., 257 N. E. 2d 870 (N.Y.

—— 22

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

erer 14. 21

Director v. Perini North River Associates, 459 U.S.

D , A een ae a

IV

Industrial Union Dept., AFL-CIO v. American Petro-

leum Institute, 448 U.S. 607 (1980) ........................ 13, 14

Japan Whaling Assoc. v. Americon Cetacean Society,

54 U.S.L.W. 4929 (June, 1986) 77 Te

Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1963) 9

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) 17

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

— 19, 22

Tennessee Valley Authority v. Hill, 437 U.S. 153

(1978) nn 2, 7, 8, 16, 17

Thomas v. Peterson, 753 F. 2d 754 (9th Cir. 1985) 4

Tribal Village of Akutan v. Hodel, 788 F.2d 1567 (9th

r Ee Se 5

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

SE rr ener 4, 5, 20, 23

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

Western Oil & Gas Ass’n v. Alaska, 439 U.S. 922 (1978) 12

Yakus v. United States, 321 U.S. 414 (1944) 13

Statutes

r AA A ik A id NI 1,7

Zr 19

, eerenialahd sacectaietiatiniainetiadeaaan 2,7

, RR REET fe 17

...... mene ee 10

Te cee. ee 3, 10

Zr 6

e ee 18

ä ES ot eee ape 19

e nee ae 18

FFP

43 U.S.C. § 134 6

43 U.S.C. § 1351 (d)

Miscellaneous

Executive Order No. 11818——7ö— i

S. Rep. 96-413

Breyer and Stewart, —— Lau * —

tory Policy 42 (Little, Brown and Co. 1985)

Farber, Equitable Discretion, Legal Duties, and En-

vironmental Injunctions, 16 Land Use and Environ-

Re

Panagopoulos, Essays on the History and Meaning of

Checks and Balances, 174-75 (Univ. Press of America

P v — ⁵—?̃—— ⅛⁵bNK NÑ“

Z. Plater, Statutory Violations and Equitable Discre-

tion, 70 Cal. L. Rev. 524 (198277?

8-9

15

STATEMENT OF INTEREST OF AMICI CURIAE*

Amici Curiae are non-profit, public interest organiza-

tions whose purpose in part is to monitor the activities of

federal agencies for compliance with environmental laws.

Amici regularly seek redress in federal courts for agency

violations of these laws. Injunctive relief is the principal

remedy sought in such cases, and Amici are therefore

vitally interested in this Court’s rules of decision for grant-

ing or denying injunctive relief in cases involving stat-

utory volations by federal agencies.

SUMMARY OF ARGUMENT

Petitioner Hodel in this case failed to comply with the

nondiscretionary procedural obligations of section 810(a)

of the Alaska National Interest Lands Conservation Act

(ANILCA), 16 U.S.C. § 1320 (a). Under section 810(a)

Hodel must evaluate the impacts of oil exploration and

development on subsistence uses of public lands prior to

leasing those lands. Petitioner Hodel failed to comply

with this nondiscretionary duty. ~

This Court has long recognized Congress “may inter-

vene and guide or control the exercise of the courts’ dis-

cretion,” provided Congress does so “in so many words,

or by a necessary and inescapable inference... .” Wein-

berger v. Romero-Barcelo, 456 U.S. 305, 313 (1982) quoting

Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946).

When Congress imposes nondiscretionary duties on federal

*All parties have consented in writing to the participation

of these amici pursuant to Rule 36, Revised Rules of the Supreme

Court. This brief is filed in support of the position of Respondents

Village of Gambell, et al. This brief addresses only the propriety

of the injunctive relief granted by the Court of Appeals in this

case.

2

agencies Congress “by necessary inference” restricts the

discretion of courts presented with violations of those

duties. An agency’s violation of a nondiscretionary duty

constitutes irreparable injury which must be enjoined

unless to do so would create a result contrary to the stat-

ute imposing the duty.

The Court of Appeals examined the language, purpose,

and structure of section 810(a) of ANILCA to determine

the appropriateness of injunctive relief in this case. Sec-

tion 810(a) of ANILCCA imposes a nondiscretionary duty

upon the Secretary of the Interior to evaluate the impacts

of oil exploration and development on subsistence uses of

public lands prior to leasing. That duty was not fulfilled

in this case. The court therefore properly remanded the

case to the district court because the district court failed

to account for the irreparable injury flowing from the

violation of section 810(a).

The nondiscretionary duty imposed by section 810(a)

of ANILCA is analogous to the duty imposed on federal

agencies by section 7 of the Endangered Species Act (ESA),

16 U.S.C. § 1536. In Tennessee Valley Authority v. Hill,

437 U.S. 153 (1978), this Court concluded that it was com-

pelled to enjoin violations of section 7 because injunctions

were the only way to ensure compliance. In the circum-

stances of this case, injunctive relief is also the only method

of insuring compliance with section 810(a) of ANILCA.

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

upon which petitioners rely, supports the Court of Ap-

peals’ decision in this case. Weinberger recognizec that

courts’ equitable discretion may be controlled by Congress,

and that close scrutiny of the purpose and structure of

applicable statutes is necessary to determine the degree

to which Congress has restricted that discretion. The

3

Court in Weinberger concluded that courts may deny in-

junctive relief for violations of the permit requirements

of the Clean Water Act, 33 U.S.C. § 1342, because (1)

there are alternative ways to enforce the Act, (2) the

permit process is a means o an end and the lack of a

permit is not per se inc usistent with the Act’s substan-

tive goals, and (3) the exercise of equitable discretion was

consistent with the “phased-compliance” scheme of the

Act. None of these features is present in section 810 (a)

of ANILCA.

The constitutional doctrines of separation of powers

and checks and balances also support the Court of Ap-

peals’ conclusion that an injunction is required in this

case. In Weinberger, section 402 of the Clean Water Act

regulated the federal defendant as it would have regu-

lated a private sector polluter. In contrast section 810(a)

of ANILCA is directed exclusively at federal agencies

and is intended to guide and restrict their exercise of dele-

gated power. It is the Court’s role to enforce Congress’

limitations on delegated power so long as those dele-

gations are constitutional.

This Court has upheld delegations of power to agen-

cies against separation of powers challenges in part be-

cause such delegations have been accompanied by provi-

sions that guide the exercise of that power. It would be

anomalous for the Court, having previously found that

Congress is constitutionally compelled to provide guidance

for the exercise of delegated power, to conclude that courts

may refuse to enforce such guidance without themselves

violating separation of powers principles.

If the Court fails to enjoin defendant’s violation of its

nondiscretionary duty under section 810(a), defendant will

accrue power not delegated by Congress, and Congressional

4

power to check the authority of Executive branch agencies

will be diluted. The Court will have neglected its own

constitutional responsibility to enforce the checks placed

by Congress on delegated powers, and will have facilitated

the unauthorized exercise of power by a coordinate branch

of the federal government.

I

THE COURT OF APPEALS’ OPINION IN THIS CASE

IS CONSISTENT WITH THE PURPOSES OF § 810(a)

OF THE ALASKA NATIONAL INTEREST LANDS

CONSERVATION ACT (ANILCA)

The Court of Appeals in this case found that “[a]n

injunction is the appropriate remedy for a substantive

[sic] procedural violation of an environmental statute.”

Village of Gambell v. Hodel, 774 F.2d 1414, 1422 (9th Cir.

1986). The court recognized that injunctive relief might

not be appropriate in the unusual case where such relief

would contravene the purposes of a statute, but concluded

that in this case the defendant’s violation of the nondis-

cretionary duty imposed by section 810(a) of ANILCA,

must be enjoined because it violated “clearly expressed

Congressional intent. 774 F.2d at 1426. The court

1. The word “substantive” should be “substantial,” as it

is in the opinion the court cites as the source of the rule. See

Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985).

2. When injunctive relief would create a result inconsistent

with the purposes of a statute, a court’s refusal to issue an in-

—.— with its constitutional obligation to see that

intent is carried out. See e. g., American Motor-

cycle Association v. Watt, 714 F.2d 962 (9th Cir. 1983) (in-

junction against enforcement of ordinance would allow race to

proceed and cause harm to the environment); Alpine Lakes Pro-

(Continued on following page)

properly avoided speculation about whether compliance

with section 810(a)’s procedures would have produced a

particular result, and instead found that: ‘Irreparable

damage is presumed when an agency fails to [follow pro-

cedures required by law].’” 774 F.2d at 1423 (quoting

Save Our ecoSystems v. Clark, 747 F.2d 1240, 1250 (9th

Cir. 1984)). Since the district court had failed to account

for the fact that an agency’s violation of a nondiscretion-

ary procedural obligation may itself cause irreparable in-

jury to plaintiffs by undermining the decision-making pro-

cess and the Constitution’s distribution of federal power,

the court of appeals remanded for entry of a preliminary

injunction.*

In Weinberger v. Romero-Barcelo, 456 U.S. 305, 313

(1982), this Court found that Congress, through the “pur-

pose and language” of an Act, “may intervene and guide

or control the exercise of the courts’ discretion... .” An

analysis of section 810(a) of ANILCA reveals that Con-

gress did not intend to allow any exceptions to the man-

datory requirements of the section, and therefore neces-

sarily restricted the equitable discretion of courts presented

with a violation of the section.

Footnote continued—

tection Society v. Schlapfer, 518 F.2d 1089, 1090 (9th Cir. 1975)

(injunction against timber harvesting of infected trees would

result in more trees being infected—a result inconsistent with

environmental protection purposes of NEPA).

3. This case involves a preliminary injunction and tech-

nically no final determination on the merits has been reached.

But the Court of Appeals’ decision on the likelihood of success

is unequivocal; the defendant has violated the statute as in-

terpreted by the Court of Appeals. Petitioner Hodel candidly

admits that the Court of Appeals’ decision in this case is final

(brief of Hodel at 25 n.14) and in fact has been given preceden-

tial effect in Tribal Village of Akutan v. Hodel, 788 F.2d 1567

(9th Cir. 1986). For purposes of determining appropriate relief,

ö eee

the merits.

A. Section 810(a) Imposes A Nondiscretionary

Duty Analogous To That Imposed By Section

7 Of The Endangered Species Act

In concluding that an injunction was necessary based

on the facts in the instant case, the court of appeals prop-

erly examined the purposes and structure of section 310(a)

of ANILCA. Section 810(a) imposes a nondiscretionary

duty upon the Secretary of the Interior to evaluate the

impacts of oil exploration and development on subsistence

uses of the public lands prior to leasing. It provides in

relevant part:

In determining whether to . . . lease . . public lands

under any provision of law authorizing such actions,“

the head of the Federal agency having primary juris-

diction over such lands or his designee shall evaluate

the effect of such use, occupancy, 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.

If the relevant agency finds that a proposed lease

may affect subsistence uses, the agency cannot proceed

until the head of the agency:

(1) gives notice to the appropriate State agency

and the appropriate local committee and regional

councils established pursuant to section 3115 of thir

title;

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

vicinity of the area involved; and

4. The Secretary’s authority to conduct the lease sales at

issue in the instant case was delegated by Congress in the Outer

Continental Shelf Lands Act, 43 U.S.C. §§ 1331-1356.

7

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

striction of subsistence uses is necessary, consistent

with sound management principles for the utilization

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

involve the minimal amount of public lands necessary

to accomplish the purposes of such use, occupancy,

or other disposition, and (C) reasonable steps will

be taken to minimize adverse impacts upon subsis-

tence uses and resources resulting from such actions.

16 U.S.C. § 1320(a).

The purpose of section 810(a) is to guide the exercise

of previously delegated power. Congress intended in sec-

tion 810(a) to insure that agencies fully consider subsis-

tence needs prior to leasing decisions. The nondiscre-

tionary duty imposed by section 810(a) is analogous to

the nondiscretionary duty imposed on federal agencies

by section 7 of the Endangered Species Act (ESA), 16

U.S.C. § 1536, and addressed in Tennessee Valley Authority

v. Hill, 437 U.S. 153 (1978). Here, as with section 7 of

the ESA, section 810(a) of ANILCA imposes an absolute

duty: to evaluate impacts on subsistence uses, and to

provide notice, hearings, and findings if significant impacts

may occur. As this Court noted in Weinberger, the ESA

“contains a flat ban on the destruction of critical habitats.”

456 U.S. at 314. Once it was determined that completion

of the Tellico dam would destroy critical habitat, the

Court had no difficulty in concluding that “only an in-

junction would fulfill the objectives of the Act.” Id.

See also Japan Whaling Assoc. v. American Cetacean

Society, 54 U.S.L.W. 4929, 4932 (June, 1986) (“The Secre-

tary, of course, may not act contrary to the will of Con-

gress when exercised within the bounds of the Constitution.

If Congress has directly spoken to the precise issue in

question, if the intent of Congress is clear, that is the

end of the matter.”). The inference of Congressional

intent to guide the exercise of judicial discretion is as

necessary here as it was in TVA v. Hill. The court of ap-

peals found that the appropriate way to vindicate the

Objectives of section 810(a) in this case is to enjoin the

agency from proceeding until it has completed its section

810(a) analysis.

B. The Procedural Nature Of The Harm In This

Case Supports The Imposition Of An In-

junction

Hodel attempts to distinguish TVA v. Hill by arguing

that [bly its very nature, a procedural requirement is

ancillary to the substantive policy objectives of the statutes

and . . injunctive relief should [therefore] normally turn

on the particular circumstances of the case.” Brief of

Hodel at 22. Hodel thus asks that courts be allowed

to predict whether the procedural requirements that Con-

gress imposed absolutely will in fact further the “substan-

tive goals” of a statute in particular cases. Even if such

predictions could be made, however, courts must respect

Congress’ choice of procedures. Procedures carry intrinsic

value, and the constitutional implications of judicial second-

guessing of those values are significant.“ As the First

Circuit stated with regard to another procedural statute:

“When Congress has prohibited certain conduct, law-

citizens presumably refrain from that conduct volun-

The defendant in an injunction proceeding who asks

court to balance the remedies in [its] favor is, in effect,

the court to approve of [its] on not to comply with

duties that law-abiding citizens comply with voluntarily. Thus,

court is being asked to voice its approval of lawless conduct.”

, Equitable Discretion, Legal Duties, and Environmental

, 16 Land Use and Environment L. Rev. 317, 339-40

(Continued on following page)

Eee

rave

)

NEPA is not designed to prevent all possible harm

to the environment; it foresees that decisionmakers

may choose to inflict such harm, for perfectly good

reasons. Rather, NEPA is designed to influence the

decisionmaking process; its aim is to make govern-

mental officials notice environmental considerations

and take them into account. Thus, when a decision

to which NEPA obligations attach is made without the

informed environmental consideration that.NEPA re-

quires, the harm that NEPA intends to prevent has

been suffered. NEPA in this sense differs from sub-

stantive environmental statutes, such as the Federal

Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq.

The Federal Water Pollution Control Act focuses upon

the “integrity of the Nation’s Waters, not the permit

process,” Weinberger v. Romero-Barcelo, 456 U.S. at

314. NEPA does the converse. Moreover, to set aside

the agency’s action at a later date will not necessarily

undo harm. The agency as well as private parties may

well have become committed to the previously chosen

course of action, and new information—a new EIS—

may bring about a new decision, but it is that much

less likely to bring about a different one. It is far

easier to influence an initial choice than to change

a mind already made up.

Massachusetts v. Watt, 716 F.2d 946, 952 (Ist Cir. 1983).

Hodel suggests that because the Senate report on

ANILCA states that a proposed action may proceed after

Footnote continued—

(1985). It is particularly inappropriate to approve of the law-

less conduct when the violator is a federal agency. See e.g.,

—— Order No. 2 (federal agencies are to provide

ee a enhancing the quality of the Na-

tion’s environment

10

a section 810 evaluation, even though its effects are ad-

verse to subsistence uses, Congress could not have intended

that section 810(a)’s procedures always precede decision-

making. Brief of Hodel at 23, n.13. But the fact that

Congress chose not to dictate substantive results does not

suggest that Congress would acquiesce in post hoc, formalis-

tic procedural compliance. Quite the opposite. To the ex-

tent Congress has relinquished control over substantive out-

comes, the need for strict compliance with the procedural

safeguards accompanying the delegation of power is height-

ened. See part II of this brief, infra.

C. Section 810(a) Of ANILCA Is Not Analogous

To Section 402 Of The Clean Water Act

In Weinberger v. Romero-Barcelo, this Court concluded

that federal courts are not compelled to issue injunctions

against federal agencies who violate the permit require-

ments of section 402 of the Clean Water Act, 33 U.S.C.

§ 1342. 456 U.S. at 320. In concluding that Congress had

not intended in section 402 to limit the equitable discretion

of courts, the Court stressed three factors—none of those

three factors is present in the instant case.

First, the Court found that injunctions were not the

only method of enforcing the permit requirements of sec-

tion 402. 456 U.S. at 314. In addition to providing for

injunctive relief, the Act provided for fines and penalties

to be imposed as a means of achieving the goals of the

Act. Id. In contrast, ANILCA provides no system of fines

or penalties to impose upon federal agencies who violate

the nondiscretionary duty imposed by section 810 (a).“

Injunctive relief is the only means of ensuring compliance.

6. The Clean Water Act’s federal facilities provisions, 33

U.S.C. § 1323, subject federal agencies to the same regulatory

(Continued on following page)

11

Second, the Court found that the purpose of the Clean

Water Act was to insure clean water for the nation, and

the permit process was simply a means of achieving that

goal. 456 U.S. at 314. Since the particular discharge at

issue apparently did not pollute the water (456 U.S. at

315), and since the lower court had ordered the federal

defendant to obtain a permit (id.), the Court found that

the lower court's denial of injunctive relief was not con-

trary to the purposes of the Act.

In the instant case the purpose of section 810(a) of

ANILCA is to require the Secretary, in exercising dele-

gaced powers, to evaluate the impacts of oil exploration

and development on subsistence uses of the public lands

and provide notices, hearings, and findings prior to allow-

ing leasing to occur. The Secretary cannot comply with

section 810(a) once a lease has been completed. The leg-

islative history of section 810(a) confirms its plain lan-

guage. Congress intended that “until the requirements

of . . . section [810] have been satisfied the proposed

action may not proceed.” S. Rep. 96-413, at 234 (em-

phasis added). Pre-decision consideration is the raison

d’etre of section 810(a), and allowing post hoc compliance,

or no compliance, is unquestionably contrary to the pur-

poses of section 810.

Finally, this Court in Weinberger found that Congress

did not mvision that all pollution would be halted immedi-

ately, but rather envisioned a period of “phased compli-

ance,” in which the economic and environmental impacts

of reducing pollution could be weighed on a case-by-case

Footnote continued—

requirements as private citizens, essentially treating agencies

as citizens when they pollute water. In contrast, section 810(a)

is directed at agencies qua agencies, and reflects Congress’ de-

termination to control how those agencies exercise delegated

powers.

12

basis. 456 U.S. at 316-17. The exercise of judicial equi-

table discretion was consistent with the phased compliance

scheme of the Clean Water Act. No equivalent phased

compliance scheme exists under ANILCA. Section 810(a)

makes clear that compliance must occur prior to making

any decision to lease.

Amoco argues that a number of lower court opinions

apply Weinberger “broadly,” and urges this Court to follow

suit. Brief of Amoco at 44-45. But a close examination

of the opinions cited by Amoco reveals that, while those

courts cited Weinberger for the proposition that courts

retain broad discretion to excuse statutory violations,

they have applied that discretion to withhold injunctive

relief only in cases where agency compliance was likely

to occur in the absence of an injunction.’

II

REFUSING TO ENFORCE A NONDISCRETIONARY

DUTY IS CONTRARY TO THE DOCTRINES OF

SEPARATION OF POWERS AND CHECKS

AND BALANCES

There are significant constitutional aspects to the

injury created by agency violations of nondiscretionary

procedural obligations. When Congress imposes on Exec-

utive branch agencies a nondiscretionary duty to follow

specified procedures while exercising delegated powers,

7. See eg., Alaska v. Andrus, 580 F.2d 465, 486 (D.C.

Cir.) vacated in part on other grounds sub nom.; Western Oil

& Assen v. Alaska, 439 U.S. 922 (1978) (injunction not

necessary to preserve opportunity to choose among alternatives).

See generally Z. Plater, Statutory Violations und Equitable Dis-

cretion, 70 Cal. L. Rev. 524 (1982) (reviewing cases in which

courts have declined to issue injunctions against statutory vio-

lations because compliance would occur without the injunction).

13

courts have a constitutional obligation to enforce such

duties. Agency violations of nondiscretionary duties in-

volve clear derelictions of the Executive branch’s obliga-

tions to execute the laws of Congress. In enforcing such

duties the Court must be sensitive to its constitutional

role, as well as the constitutional roles of the Executive

and Legislative branches. The Court exceeds the bounds

of its judicial role if it second-guesses the propriety of

applying Congressional controls on delegated agency

powers. This Court has concluded that broad delegations

of power to Executive branch agencies are constitutional

only if they contain appropriate standards or controls for

the exercise of such power.“ For courts to decline to

enforce such controls raises the very constitutional con-

cerns the Court has expressed about the initial delegations.

When a federal agency is the defendant in a case involving

violations of a nondiscretionary duty, a refusal to enjoin

the violation is an abdication of the Court’s role in the

constitutional system of checks and balances and allows

irreparable injury to the Constitution’s allocation of fed-

eral power.

A. Federal Courts Must Enforce Procedural Safe-

guards Imposed By Congress To Maintain

The Separation Of Powers

This Court has recently emphasized the importance

of Congressional control over the exercise of delegated

powers in maintaining the separation of powers envi-

8. See e.g., American Textile Manufacturers Institute, Inc.

v. Donovan, 452 U.S. 490, 543 (Rehnquist, J., dissenting); In-

dustrial Union Dept. AFL-CIO v. American Petroleum Institute,

448 U.S. 607 (1980) (stressing the importance of adequate con-

trols on the exercise of delegated powers); Yakus v. United States,

321 U.S. 414 (1944) (delegated price control authority constitu-

tional because accompanied by sufficiently clear standards estab-

lished by Congress).

14

sioned by the Constitution. See Industrial Union Dept.,

AFL-CIO v. American Petroleum Institute, 448 U.S. 607,

646 (1980) (“sweeping delegation [s] of legislative power”

violate separation of powers principles). When Congress

imposes nondiscretionary procedural duties, judicial en-

forcement of controls on delegated power is particularly

important. Congress in such statutes expresses its deepest

concern for the proper exercise of delegated powers, and

includes the word “shall” rather than “may” because it

means to brook no exceptions. See e.g., Citizens to Pre-

serve Overton Park v. Volpe, 401 U.S. 402 (1970) (agency

did not have discretion to ignore Congressional direction

that agencies “shall” not approve any program affecting

parklands unless specific criteria are present—Court en-

joined action pending compliance with procedures). Non-

discretionary language is important because it plainly

marks the division between legislative and executive

power. If courts erase that line by refusing to enforce

nondiscretionary duties, they contribute to an irreparable

injury with constitutional implications—an erosion of the

basic principle of separation of federal powers.

B. The Constitution’s System Of Checks And Bal-

ances Requires The Judiciary To Insure

Executive Compliance With Legislative Di-

rectives

Judicial decisions not to enforce agency nondiscre-

tionary duties imposed by Congress also violate the con-

stitutional principle of checks and balances. When courts

elect not to enjoin statutory violations of regulatory stat-

utes (which are essentially the same whether the regulated

entity is a federal facility or a private party), that raises

concerns about the separation of powers and whether the

court is fulfilling its lav7-enforcing role. When courts are

presented with agency violations of nondiscretionary

15

duties, that triggers the Court's additional obligation to

check the unauthorized exercise of power by a coordinate

branch of the federal government. The drafters of the

Constitution determined that: The] three branches [of

the federal government] should be rendered interdepen-

dent by giving each other a ‘partial agency, or control,’

over the other branches, securing in that way an equilib-

rium of governmental powers. This achieved a novel

mixture of the doctrine of separation of powers with the

doctrine of checks and balances.” Panagopoulos, Essays

on the History and Meaning of Checks and Balances,

174-75 (Univ. Press of America 1985). An important

aspect of the Court’s role in checking the power of its

sister branches is its review of Executive branch actions

to insure that they comply with constitutionally imposed

legislative commands. “The courts have. traditionally

exercised a reviewing function to ensure executive com-

pliance with applicable public law, policing executive

officers’ obedience to legislative commands and providing

a further set of internal checks on governmental power

used against the citizenry.” Breyer and Stewart, Admin-

istrative Law and Regulatory Policy 42 (Little, Brown,

and Co. 1985). When agencies refuse to comply with

nondiscretionary obligations imposed by Congress, courts

are the only practical forum for remedying such violations.

If the courts do not restrain such abuses, they will go

unchecked.

While the tension between the courts’ traditional bal-

ancing of equities and their role in the constitutional system

of checks and balances may (as in Weinberger, supra) be

resolved in favor of the courts’ equity power when the

exercise of judicial discretion is consistent with a statutory

scheme, the courts’ role as a check on Executive power

must predominate when the courts are faced with a viola-

16

tion by an Executive branch agency of a nondiscretionary

duty imposed by Congress and intended to guide the ex-

ercise of delegated power.

III

PETITIONERS HAVE NOT DEMONSTRATED THAT

THE COURT OF APPEALS ABUSED ITS DISCRE-

TION BY REQUIRING AN INJUNCTION IN

IIS CASE

A. Petitioners Have Not Accurately Analyzed

The Language And Purpose Of Section 810(a)

Petitioners argue that the court of appeals’ opinion in

this case is contrary to this Court’s opinion in Weinberger.

Brief of Hodel at 17; brief of Amoco at 44-46. Petitioner

Amoco, however, misapplies Weinberger by simply iterat-

ing the general rule that Congressional intent to restrict

equitable discretion will not lightly be implied. Amoco

does not, as Weinberger requires, analyze section 810(a)

to determine whether the specific language and purpose

of that provision limits the courts’ equitable discretion.

Petitioner Hodel argues that there is no “clear indica-

tion” that Congress intended through section 810 to limit

the traditional equitable discretion of the courts, because

the language of section 810 “does not address the distinct

issue whether a district court must award certain relief.

. Brief of Hodel at 22. But Congress need not di-

rectly address the issue of judicial discretion in order to

limit the courts’ exercise of equitable powers. As this

Court found in TVA v. Hill, supra, the nondiscretionary

language of an Act may limit the courts’ discretion, even

though the statute does not expressly address the issue

of equitable discretion. The Court drew the “necessary

inference” from the language and purpose of the ESA that

17

Congress intended to limit the courts’ equitable discretion.

437 U.S. at 194. The same inference is compelled by the

nondiscretionary language of section 810; Congress did not

intend to brook exceptions—administrative or judicial.

B. Section 810(a) Compliance May Not Occur

Subsequent To Leasing

Hodel argues that an injunction is not necessary in

this case because, according to Hodel, compliance with the

procedural requirements of section 810 may occur subse-

quent to leasing but prior to development and produc-

tion.“ Brief of Hodel at 24. There are three problems with

Hodel’s argument.

First, it ignores the plain language of § 810, which re-

quires that evaluation of impacts on subsistence uses take

place [iln determining whether to... lease... .” 16

U.S.C. § 3120(a) (emphasis added). This language an-

ticipates by its terms that evaluation will precede leas-

ing. Furthermore, the Secretary must determine the size

9. Petitioners also imply (but do not assert) that there

is a statutory conflict between the procedures required by section

810(a) and the provisions of OCSLA governing oil and gas

leasing. No such conflict exists. OCSLA is not a single purpose

statute; it contains numerous uirements intended to protect

the environment. See, e.g., 43 U.S.C. § 1346. If a potential con-

flict existed, any ambiguities in statutory language would have

to be resolved in favor of a construction that accommodates both

statutes. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018

(1984) (“where two statutes are ‘capable of co-existence, it is

the duty of the courts, absent a clearly expressed congressional

intention to the contrary, to regard each as effective, quoting

Morton v. Mancari, 417 U.S. 535, 551 (1974)). Additionally,

ANILCA was adopted subsequent to OCSLA, and Congress must

be presumed to have beer aware of OCSLA’s provisions and to

have interpreted those provisions as compatible with section

810(a) of ANILCA. See Director v. Perini North River Asso-

ciates, 459 U.S. 297, 319 (1983) (when interpreting statutes,

courts “may presume ‘that our elected representatives, like other

citizens, know the law,“ quoting Cannon v. University of Chicago,

441 U.S. 677, 696-97 (1979)).

18

of an area to be leased prior to leasing. 43 U.S.C. § 1344(a).

Section 810 (a) (3) (B) of ANILCA requires that if leasing

will restrict subsistence uses, the Secretary must insure

that “the proposed [leasing] will involve the minimal

amount of public lands necessary to accomplish the pur-

poses of such [leasing]. . .” It would be impossible for

the Secretary to reduce the size of lease sale areas in order

to minimize impacts on subsistence uses if the evaluation

of impacts occurs only after the lease sale has been held.

Second, post-lease consideration cannot fully account

for subsistence uses unless the Secretary has the authority

to withdraw leased tracts from production if he finds sub-

sistence uses will be affected. The only bases for with-

drawing or canceling a lease under the OCSLA, however,

are: 1) if the lessee fails to comply with the OCS Lands

Act, as amended, or any provisions of the lease or regula-

tions issued under the Act (43 U.S.C. § 1334(c) and (d));

or, 2) if activity on the lease a) would probably cause

serious harm or damage to life, property, any mineral, to

the national security or defense, or to the marine or coastal

environment, b) the harm will not disappear or decrease

to an acceptable extent within a reasonable period of

time and c) the advantages of lease cancellation outweigh

the advantages of continuing such lease (43 U.S.C. § 1334

(a) (2) (A)). Subsistence impacts are not one of the

stated grounds for lease cancellation.“ Even if the Sec-

10. Impacts on subsistence uses may or may not translate

into damage to the environment. It is conceivable that, by

making certain tracts available for production and not others

in an attempt to minimize impacts on subsistence uses, the

Secretary will cause adverse environmental impacts. (For ex-

ample, allowing produciion close to shore or near some non-

subsistence resource or critical habitat.) The Secretary is not

statutorily authorized to minimize these subsistence impacts

— Such impacts may only be minimized prior to

19

retary could cancel a lease to protect subsistence uses, the

Secretary would have to pay millions of dollars for each

withdrawn tract. Lessees are entitled to compensation for

lease cancellation under 43 U.S.C. § 1334(a)(2)(C). To

buy back just one Alaskan OCS tract after it has been

leased and explored could cost the government over $50

million: the bonus bid paid by the oil company (which

for some Alaskan tracts exceeds $30 million), plus the

lessee’s cost of exploring that tract, which could amount

to $15 to $20 million, plus interest. The Secretary’s re-

luctance to protect subsistence uses will increase as the

cost of such protection increases. Lease cancellation was

intended as a last resort for reversing bad leasing de-

cisions if impacts which were unforeseeavle at the time of

the lease sale subsequently became known. Lease can-

cellation was not intended to replace the need for a com-

prehensive assessment prior to making the initial decision

to lease.”

11. This conclusion is fully consistent with this Court’s

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

(1984). That case held that nothing that occurs at the lease

sale stage “directly affects” the coastal zone so as to require a

determination of consistency under the Coastal Zone Manage-

ment Act (CZMA), 16 U.S.C. §§ 1451, et seg. Two points dis-

tinguish C. lifornia from this case. First, as the Court in Cali-

fornia repeatedly emphasized, the CZMA itself provides states

with power to veto leases at the exploration and production

stages of offshore development as well as at the lease sale stage.

(“The State can veto the [development and production] plan

as ‘inconsistent’ [with its coastal management .

43 U.S. C. 5 1351 (0d) (1976 ed., Supp. III).“ 464 U.S. at 340.)

No corresponding post-lease cancellation authority exists under

ANILCA. Second the Court’s opinion in Secretary v. California

and coordinated

rested in on “the , detailed

provisions of 1 307 (e) (3) (B), and OCSLA §§ 1344-1346

and 1351. 464 U.S. at 343. That detailed statutory coordi-

— 1 * F

in to ew to the

stages of OCS activities. is no detailed coordination be-

tween ANILCA and OCSLA that would suggest an intent by

Congress to defer ANILCA review to later stages.

20

Third, contrary to the federal petitioners’ allegations,

significant impacts on subsistence resources can occur dur-

ing exploration, as the Ninth Circuit recognized in this

case. “The by-products of oil and gas exploration such as

potential oil spills, leakage, and noise pose the threat

of disruption to subsistence economy sufficient to destroy

irreparably the isolated and unique culture of the Native

Alaskans.” Gambell II, 774 F.2d at 1426. The dangers

from exploratory activities arise from two sources: noise

and oil spills. Noise attributable to airplanes, ships and

other mechanized traffic could cause reductions in animal

populations which form the basis of the tribe’s subsistence

economy. As the Final Environmental Impact Statement

(FEIS) for Nor.on Sound indicates, such noise may reduce

the popuistions of whales, seals, and walrus. Sale 57

FEIS at 167, 177-80, 184.

There is also a real risk that oil spills from exploratory

drilling will harm subsistence uses. In Norton Sound, the

industry has used conventional jack up rigs to drill ex-

ploratory wells. The Norton Sound FEIS states that faults

and thermogenic gas, two hazards present in Norton

Sound, pose extreme dangers for jack up rigs. FEIS at

TABLE III. A. 1. 1. The threat of significant spills was il-

lustrated when a drilling rig loaded with fuel nearly broke

apart while it was being towed in Norton Sound during

one of the sudden and violent storms that peridically

sweep the Bering Sea. Anchorage Daily News, September

22, 1982, pg. 1.

Oil spills during exploration could prove devastating.

For example, a large oil spill could destroy the walrus

hauling areas near St. Lawrence Island in the Bering Sea

off Alaska. Because the people of St. Lawrence Island de-

pend on walrus for over 80 percent of their food, such a

21

spill could threaten the entire island with starvation. Lit-

tle and Robbins, Technical Report No. 89 at 294, 334,

343-44.

Petitioners’ argument that compliance with section

810(a) can occur subsequent to leasing and therefore no

injunction is necessary is without merit.

IV

INJUNCTIVE RELIEF DOES NOT PUNISH THIRD

PARTY BENEFICIARIES OF AGENCY REFUSALS

TO PERFORM NONDISCRETIONARY DUTIES

Petitioner Amoco argues that injunctive relief in this

case will not “deter” Interior’s violation of section 810(a),

but instead will simply punish or harm petitioner. Brief

of Amoco at 37-38. Amoco’s deterrence argument is based

on the assumption that once the Secretary has made a

decision, the Secretary’s mind cannot be changed by di-

recting that additional facts be considered. But of course

if this assumption is adopted then injunctive relief for

violation of any procedural obligation would be pointless.

Congress assumed the opposite; that forcing agencies to

consider impacts on subsistence uses, an provide notice

and hearings on those impacts, may indeed change sub-

stantive decisions. Courts, including this Court, routinely

order agencies to reconsider decisions and follow proper

procedures in doing so. See e.g., Citizens to Preserve Over-

ton Park v. Volpe, 401 U.S. 402, 420-21 (1970). If the

mere fact that an agency has arrived at a decision is suf-

ficient to conclude that further procedural steps would be

useless, agencies would have an incentive to do that

which Congress is attempting to prevent—rush to judgment

with no concern for proper procedure and involvement

of the public. An injunction against exploration prior to

22

section 810(a) compliance in this case will obviously “de-

ter” the agency’s violation in this case; not to enjoin the

violation will encourage future violations.

Amoco’s argument that an injunction “punishes” Amoco

is simply a restatement of the “balance of the harms”

aspect of injunctive relief. To the extent Amoco is

harmed one could argue that it is also “punished,” but

that does not further the analysis. Amoco’s true com-

plaint is that it suffers a monetary loss” if leasing doesn’t

go forward, while “[p]laintiffs suffered no tangible injury

by virtue of Interior’s decision to issue Sale No. 57 and 83

leases without complying with ANMIL CA. Brief of

Amoco at 47. But Amoco’s point proves too much. The

difficulty in quantifying the harm flowing from an agency’s

refusal to follow mandatory procedures increases the like-

lihood that “balancing of the harms” will become judicial

policymaking. A court can speculate that the harm flowing

from a procedural violation is as great or as small as the

court desires. In more traditional cases courts are able to

balance one quantifiable harm against another. If issuing

an injunction would prevent $10 worth of harm but cause

$25 worth of harm, for example, courts could be expected

uniformly to deny injunctive relief. See e.g., Boomer v.

Atlantic Cement Co., 257 N.E.2d 870 (N.Y. App. 1970). As

the values on either side of the equation become more

12. This Court recently recognized: Under the plain lan-

ation, development, or production . the lessee acquires only

a priority in submitting plans to conduct those activities. If

those plans, when ultimately submitted, are disapproved, no

further exploration or development is permitted.” 464 U.S. 312,

339 (1983). Since Amoco’s lease plainly does not create any

“right,” it would be anomalous to find that Amoco’s investments

based upon the lease are sufficiently important to outweigh the

value of a federal agency complying with an explicit directive

from Congress.

— ©

: *

. 7

23

difficult to quantify, however, the opportunity for courts

to impose their own values, and the likelihood that differ -

ent courts will reach different results in similar cases, in-

creases. Fidelity to statutory directives becomes even

more important in such circumstances.

The importance of procedural compliance should not

turn upon the personal opinions of the court in which re-

lief is sought, or the particular facts of individual cases.

Speculation about relative benefits and costs is a value-

laden legislative act—one that courts must avoid if a stat-

utory command applies. The district court’s opinion in

this case illustrates the danger: the court “balanced” two

competing policies—oil exploration and subsistence uses

of the public lands, and made the policy choice that “the

public interest favors continued oil exploration” (Pet. App.

43a) to the exclusion of procedures required by Congress.

When Congress has determined that specific procedures

should be followed, courts should not second guess the

Congressional calculus. “In our constitutional system the

commitment to the separation of powers is too fundamen-

tal for [courts] to preempt congressional action by judi-

cially decreeing what accords with ‘common sense and

the public weal.’” 437 U.S. at 195.

24

CONCLUSION

The relief ordered by the Court of Appeals in this case

was appropriate and should be affirmed.

Respectfully submitted,

MIcHAEL AXLINE* LarRY SILVER

Assistant Professor of Law Sierra Club Legal Defense

Western Natural Resources Fund, Inc.

Law Clinic 2044 Fillmore Street

University of Oregon Law San Francisco,CA 94115

School (415) 567-6100

Eugene,OR 97403

(503) 686-3823

SaRAH CHASIS

Natural Resources Defense

Council

122 East 42nd Street

New York, NY 10168

(212) 949-0049

Attorneys for Amici Curiae

Natural Resources Defense Council

Sierra Club

Environmental Defense Fund

National Audubon Society

Wilderness Society

Environmental Policy Institute

Tru tees for Alaska

Northwest Coalttion for Alternatives to Pesticides

Oregon Natural Resources Council

DATED this 2nd day of October, 1986.

»Counsel of Record