County of Santa Barbara v. Malley, 25049.

• Decision Date: 21 April 1970
• Docket Number: No. 25049.,25049.
• Citation: 426 F.2d 171
• Parties: COUNTY OF SANTA BARBARA, a political subdivision of the State of California, et al., Appellants, v. Robert J. MALLEY, Los Angeles District Engineer, Corps of Engineers, et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

426 F.2d 171 (1970)

COUNTY OF SANTA BARBARA, a political subdivision of the State of California, et al., Appellants, v. Robert J. MALLEY, Los Angeles District Engineer, Corps of Engineers, et al., Appellees.

No. 25049.

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:

As in the related Hickel cases, 426 F.2d 164, (9th Cir. 1970) in which an opinion has been filed today, this case is an aftermath of the January, 1969 oil-well blowout under Union Oil Company's Platform A in the Santa Barbara Channel.

In the posture of the case as it reaches this court, the ultimate relief sought by plaintiffs is much more limited than that which they originally asked for in their complaint. They now seek a mandatory injunction pertaining only to the duties of Robert J. Malley, Los Angeles District Engineer, Corps of Engineers (District Engineer), in acting upon applications for permits to construct new facilities on the Outer Continental Shelf. As to these applications plaintiffs now seek a mandatory injunction requiring the District Engineer to grant them a public hearing before acting thereon. Such hearings would be limited, however, to the effect of the facilities upon navigation and national security.¹

On October 3, 1969, when plaintiffs began this action, they moved for a preliminary injunction restraining the District Engineer from granting any such application during the course of this litigation without first according plaintiffs a hearing of the kind described above. Judging by statements made by them in their briefs on appeal, the irreparable damage plaintiffs claim they will sustain if a preliminary injunction is not granted is the loss of their right to hearings on any Outer-Continental-Shelf applications the District Engineer may grant during the pendency of the litigation.

The district court denied the motion for a preliminary injunction. It did so on the following grounds: (1) plaintiffs did not show a strong likelihood that they would ultimately prevail on the merits — i. e., that they were entitled to public hearings under the applicable statutes and regulations, and the Constitution; (2) plaintiffs failed to show any substantial injury to any of their interests due to the denial of such hearings; and (3) the non-Government defendants demonstrated a great likelihood of substantial and immediate injury in the event preliminary injunctive relief was granted. Plaintiffs took this appeal from the order denying a preliminary injunction.

As we said in our opinion filed today in the Hickel cases, the granting or withholding of a preliminary injunction rests in the sound discretion of the district court, reviewable only for abuse of discretion. Plaintiffs agree that one of the criteria to be applied in passing upon an application for a preliminary injunction is whether plaintiffs have shown a strong likelihood that they will ultimately prevail on the merits. But plaintiffs deny that they have failed in this regard. They argue that they have made the requisite showing because, under the established facts and law, they are entitled as of right to an agency hearing before the District Engineer grants new applications for oil facilities on the Outer Continental Shelf in the Santa Barbara Channel.

We agree with the district court that plaintiffs did not show a strong likelihood that they would ultimately prevail on the merits of their right-to-a-hearing claim.

Plaintiffs do not assert that any statute contains express language granting them such a right. They argue, however, that the applicable regulations of the Corps of Engineers, Department of the Army, particularly 33 C.F.R. § 209.120(g), require the District Engineer to grant them a hearing before acting upon applications of the kind in question.

We need not decide whether those regulations, as they existed when the motion for a preliminary injunction was denied in December, 1969, entitled plaintiffs to a hearing. Since at this point plaintiffs seek hearings only as to applications not yet acted upon, the right thereto is now governed by revised regulations which became effective on January 3, 1970.

Section 209.120(g) relates specifically to public hearings. As paragraph (g) of section 209.120 existed in December, 1969, it consisted of subparagraphs (1) and (2), pertaining to public hearings in general. As amended effective January 3, 1970, 35 Fed.Reg. 79, 80 (1970), minor changes were made in subparagraphs (1) and (2), part of subparagraph (2) was renumbered (4) and a new subparagraph (3) was added. New subparagraph (3) deals expressly with hearings concerning navigation and national security in connection with applications for permits...