County of Santa Barbara v. Hickel, 25413

• Citation: 426 F.2d 164
• Decision Date: 21 April 1970
• Docket Number: 25414.,No. 25413,25413
• Parties: COUNTY OF SANTA BARBARA, a political subdivision of the State of California, and The City of Santa Barbara, a municipal corporation of the State of California, Appellants, v. Walter J. HICKEL, Secretary of the Interior, United States of America, et al., Appellees. Alvin WEINGAND et al., Appellants, v. Walter J. HICKEL, Secretary of the Interior, William T. Pecora, Director, United States Geological Survey, D. W. Solanas, Regional Supervisor, Oil and Gas Division, United States Geological Survey, Lee A. Dubridge, Science Advisor to the President of the United States, John S. Steinhart, Office of Science and Technology and Executive Secretary to the Special Panel on the Future of the Union Oil Lease, Gulf Oil Company, Mobil Oil Corporation, Texaco, Inc., Union Oil Co., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

426 F.2d 164 (1970)

COUNTY OF SANTA BARBARA, a political subdivision of the State of California, and The City of Santa Barbara, a municipal corporation of the State of California, Appellants, v. Walter J. HICKEL, Secretary of the Interior, United States of America, et al., Appellees.

Alvin WEINGAND et al., Appellants, v. Walter J. HICKEL, Secretary of the Interior, William T. Pecora, Director, United States Geological Survey, D. W. Solanas, Regional Supervisor, Oil and Gas Division, United States Geological Survey, Lee A. Dubridge, Science Advisor to the President of the United States, John S. Steinhart, Office of Science and Technology and Executive Secretary to the Special Panel on the Future of the Union Oil Lease, Gulf Oil Company, Mobil Oil Corporation, Texaco, Inc., Union Oil Co., Appellees.

Nos. 25413, 25414.

United States Court of Appeals, Ninth Circuit.

April 21, 1970.

A. L. Wirin (argued), Fred Okrand, Los Angeles, Cal., George P. Kading, Stanley T. Tomlinson, Marvin Levine, Santa Barbara, Cal., Bruce A. Bevan, Jr. (argued), Los Angeles, Cal., for appellants.

Edmund Clark (argued), Washington, D.C., Philip K. Verleger (argued), Allyn Kreps (argued), Los Angeles, Cal., O'Melveny & Myers, Theodore Robinson, Lawler, Felix & Hall, McCutchen, Black, Verleger & Shea, Los Angeles, Cal., Ball, Hunt, Hart & Brown, Long Beach, Cal., Musick, Peeler & Garrett, R. W. Curtis, Nossaman, Waters, Scott, Krueger & Riordan; Miles W. Newby, Jr., Los Angeles, Cal., Cahill, Gordon, Sonnett, Reindel & Ohl, New York City, Shiro Kashiwa, Asst. Atty. Gen., Washington, D.C., Wallace E. Sedgwick, of Sedgwick, Detert, Moran & Arnold, San Francisco, Cal., Wm. Mathew Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellees.

Before HAMLEY and BROWNING, Circuit Judges, and SMITH, District Judge.^*

HAMLEY, Circuit Judge:

These cases involve oil drilling and production operations in the Santa Barbara Channel. They are before us on appeals taken by the respective plaintiffs from orders, entered in both cases, denying motions for a preliminary injunction.

We consolidated the cases for briefing and argument with County of Santa Barbara, et al. v. Malley, et al., 426 F.2d 171, (9th Cir. 1970) in which a separate opinion is being filed today. For convenience we will refer to the three as the Santa Barbara, Weingand and Malley cases. The two cases dealt with in this opinion (the Santa Barbara and Weingand cases) will sometimes be referred to collectively as the Hickel cases.

On April 1, 1968, following competitive bidding, the Secretary of the Interior (Secretary) awarded leases to the non-Government appellees authorizing them to explore for oil, and to construct and operate oil production facilities, on the Outer Continental Shelf in the Santa Barbara Channel. This was done pursuant to authority vested in the Secretary under the Outer Continental Shelf Lands Act (Act), 43 U.S.C. § 1331 et seq.

On January 28, 1969, there was an oil well blowout in the Santa Barbara Channel under Platform A, a facility constructed and operated by Union Oil Company under a lease awarded to it in the manner described. On February 7, 1969, the Secretary ordered cessation of all oil drilling and production operations in the Channel. Under direction of the President, the Secretary then appointed a panel of experts, popularly known as the DuBridge Panel, to make recommendations to reduce the then extant oil seepage and to minimize the possibility of future oil spills. On May 27, 1969, the panel issued its recommendations.¹

In the meantime, on April 4, 1969, plaintiffs in the Santa Barbara case filed that action, and on June 4, 1969, they filed an amended complaint. Two claims were asserted. In their first claim plaintiffs alleged that in connection with the awarding of leases, the Secretary had exceeded his statutory authority; and that in the construction and operation of facilities thereunder, some or all of the defendants had been negligent and had engaged in extra-hazardous activities without taking precautions required by such activities. In their second claim plaintiffs asserted that "said Act and the application thereof is sic repugnant to the Constitution of the United States * * *," and they requested that the matter be heard before a three-judge court under 28 U.S.C. § 2282.²

Accordingly, plaintiffs in the Santa Barbara case sought a mandatory injunction which would permanently stop any further offshore drilling operations adjacent to the State of California. They also sought a judicial declaration that the Act is unconstitutional.

Plaintiffs in the Weingand case commenced that action on July 10, 1969, and filed an amended complaint on August 11, 1969. Two claims were asserted. In their first claim, plaintiffs alleged that the Government defendants: (1) had refused to make available to plaintiffs and others the data upon which the recommendations of the DuBridge Panel were based; and (2) had refused to accord plaintiffs a hearing on whether the DuBridge recommendations should be effectuated. In their second claim, plaintiffs challenged the constitutionality of the Act upon essentially the same grounds relied upon by the plaintiffs in Santa Barbara.

Plaintiffs in the Weingand case sought: (1) the convening of a three-judge court under 28 U.S.C. §§ 2282 and 2284 to hear and determine the proceedings; (2) a preliminary, and a permanent, injunction restraining the Secretary from approving the DuBridge report and from effectuating the DuBridge recommendations without first granting plaintiffs and others a public hearing and without giving plaintiffs and others prior access to the DuBridge data; and (3) a preliminary and a permanent injunction restraining the Secretary from the enforcement, operation and execution of the Act on the ground of its repugnance to the Constitution of the United States.

A three-judge court was constituted to hear both the Santa Barbara and Weingand cases. In both cases plaintiffs moved for summary judgment on the claims challenging the constitutionality of the Act. In both, defendants moved to dismiss the action. The Honorable Albert Lee Stephens, Jr., one of the members of the three-judge court, with the concurrence of all three judges of that court, entered an order providing that only those motions which raise a constitutional question would be heard by the three-judge court, and providing that all other motions not raising a constitutional issue would be heard by Judge Stephens.³ In the same order the motions for summary judgment were assigned to the three-judge court for disposition.

The three-judge court heard arguments on the motions for summary judgment on September 23, 1969. On February 10, 1970, the three-judge court, in an unreported order, denied the motions for summary judgment, holding that the Act and regulations "are not repugnant to the Constitution of the United States."

On October 3, 1969, the plaintiffs in the Malley case commenced their action. On the same day plaintiffs in all three cases filed a joint motion for a preliminary injunction. The nature of the preliminary injunction sought in the Malley case is described in our opinion in that appeal. In the Hickel cases, plaintiffs seek to restrain the Government defendants, pending disposition of the litigation, from allowing the drilling of any new wells in the Santa Barbara Channel without first: (1) holding a public hearing and (2) making available to plaintiffs and to the public, a reasonable time in advance of the hearing, the data upon which such defendants have acted or intend to act with regard to the Santa Barbara Channel oil spill.⁴

The district court denied the motion for a preliminary injunction in the Hickel cases on February 10, 1970. In so ruling, that court held that: (1) there is no requirement of a hearing under the Constitution or laws of the United States, or applicable rules or regulations, for persons in plaintiffs' position; (2) there is no requirement under the Constitution, laws, or regulations that information such as that which plaintiffs seek be made available to them; and (3) plaintiffs have not shown sufficient need for the extraordinary relief which would be afforded by a preliminary injunction and have failed to show an irreparable injury.⁵ These appeals followed.

The granting or withholding of a preliminary injunction rests in the sound discretion of the trial court. Jones v. Board of Regents, 397 F.2d 259 (9th Cir.1968). Our function on these appeals is therefore to determine whether, in denying a preliminary injunction, the district court abused its discretion.

A showing that the plaintiffs will otherwise suffer irreparable injury is an essential prerequisite to a preliminary injunction. Kontes Glass Company v. Lab Glass, Inc., 373 F.2d 319, 320 (3rd Cir.1967). Clearly, plaintiffs have not shown that, unless a preliminary injunction is issued granting them a hearing before the Government defendants allow the drilling of new wells in the Santa Barbara Channel, there will be another blowout or other physical damage of an irreparable nature. But they argue that they have a right to an agency hearing before additional oil drilling is allowed, and if they are not granted such a hearing pending disposition of the litigation, the right to such hearing will, as to any well drilled in the meantime, be lost forever. This is the irreparable damage which, plaintiffs assert, should have been, but was not, recognized by the district court.

Thus, while the merits of the litigation are not ordinarily to be decided in passing upon a motion for a preliminary injunction, plaintiffs have here so related their irreparable damage contention to their asserted right to a hearing that a consideration of the merits cannot be avoided.

We turn, then, to plaintiffs' claimed right to an agency hearing before the non-Government defendants are allowed to drill new wells on the Outer Continental Shelf. Plaintiffs do not contend that ...