774 F.2d 1414 (9th Cir. 1985), 85-3877, People of Village of Gambell v. Hodel

Docket Nº:85-3877.
Citation:774 F.2d 1414
Party Name:PEOPLE OF the VILLAGE OF GAMBELL, People of the Village of Stebbins, and Nunam Kitlutsisti, Plaintiffs-Appellants, v. Donald P. HODEL, Secretary of the Interior, and U.S. Department of the Interior, Defendants-Appellees, Arco Alaska, Inc., Amoco Production Company, et al., Defendants-Intervenors-Appellees.
Case Date:October 25, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1414

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

PEOPLE OF the VILLAGE OF GAMBELL, People of the Village of

Stebbins, and Nunam Kitlutsisti, Plaintiffs-Appellants,

v.

Donald P. HODEL, Secretary of the Interior, and U.S.

Department of the Interior, Defendants-Appellees,

Arco Alaska, Inc., Amoco Production Company, et al.,

Defendants-Intervenors-Appellees.

No. 85-3877.

United States Court of Appeals, Ninth Circuit

October 25, 1985

Page 1415

[Copyrighted Material Omitted]

Argued and Submitted Sept. 4, 1985.

Page 1416

Donald S. Cooper, James A. Bamberger, Heather H. Grahame, Alaska Legal Services Corp., Anchorage, Alaska, for plaintiffs-appellants.

Carl J.D. Bauman, Hughes, Thorsness, Powell & Brundin, Anchorage, Alaska, F. Henry Habicht, II, Asst. Atty. Gen., Michael W. Reed, Bruce M. Landon, Jacques B. Gelin, David C. Shilton, Dept. of Justice, Washington, D.C., for defendants-appellees.

Brice M. Clagett, E. Edward Bruce, Bobby R. Burchfield, Covington & Burling, Washington, D.C., for Arco Alaska, Inc., et al.

Appeal from the United States District Court for the District of Alaska.

Before PREGERSON and ALARCON, Circuit Judges, and DIMMICK, District Judge [*].

ALARCON, Circuit Judge:

The People of the Village of Gambell, et al. (hereinafter the Villages), 1 appeal from an order of the district court of Alaska denying consolidated motions for a preliminary injunction. The requested injunction would prohibit exploration for oil and gas on two tracts leased to appellees/intervenors, Arco Alaska, Inc. and Amoco Production Co., et al. (hereinafter the Oil Companies), by the United States Department of the Interior on federally owned lands in the outer continental shelf of Alaska.

We must determine whether the district court abused its discretion in failing to issue a preliminary injunction notwithstanding its determination that the Villages had a "strong likelihood of success on the merits" in light of the presumption of harm flowing from a violation of a statute and the facts in the record showing the possibility of a significant restriction of subsistence use. We conclude that the district court abused its discretion in denying a preliminary injunction because it failed to give proper weight to Congress's expressly stated policy of protecting the subsistence needs and culture of Native Alaskans against the harm which may result from the lease of public lands in the outer continental shelf.

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PERTINENT FACTS

This matter is again before this court following our decision in People of the Village of Gambell v. Clark, 746 F.2d 572 (9th Cir.1984) (hereinafter Gambell I ). In Gambell I, the People of the Village of Gambell and the People of the Village of Stebbins brought an action in the district court to enjoin the sale of leases located in federally owned outer continental shelf land in Lease Sale 57. The Secretary of the Interior (hereinafter the Secretary) had offered to sell the leases for oil and gas exploration pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C. Secs. 1331-1356 (as amended 1980) (hereinafter the Lands Act). Bids were submitted by the oil companies. Lease Sale 57 consists of approximately 2.4 million acres in the Norton Sound Basin twenty-five miles off the western shore of Alaska.

In Gambell I the Villages presented two arguments to the district court in support of their request for an injunction. First, the Villages contended that the sale of leases for oil and gas exploration would interfere with their aboriginal hunting and fishing rights. Second, they asserted that the Secretary failed to evaluate the impact of such laws on the subsistence culture of Native Alaskans as required by section 810 of the Alaska National Interest Lands Conservation Act, 16 U.S.C. Secs. 3101-3233 (1980) (hereinafter the Conservation Act) prior to conducting the sales. The district court denied the Villages' motion for a preliminary injunction and granted the Secretary's motion for summary judgment. The district court held that the Villages' aboriginal hunting and fishing rights and their rights protected under section 810 of the Conservation Act did not extend to the outer continental shelf outside the territorial boundaries of Alaska.

In his briefs before this court in Gambell I, the Secretary argued that if this court " '[s]hould ... find it appropriate to order the Secretary to carry out the procedures of section 810, there is no need to undo what has already been done. The proper role for the court is to simply maintain the status quo while the Secretary does whatever is necessary to comply.' " (Appellants' Reply Brief at 4, quoting Brief for Federal Appellees (Gambell I ), at 49). The oil companies made a similar but more specific recommendation in their brief in Gambell I. " 'If this court should hold that Sec. 810 of ANILCA applies to the OCS [outer continental shelf], the appropriate remedy would be ... to enjoin further activities until the Secretary completes the procedures required by the statute, if irreparable harm is shown, see Weinberger v. Romero-Barcelo, 456 U.S. 305 [102 S.Ct. 1798, 72 L.Ed.2d 91] (1982).' " (Appellants' Reply Brief at 4, quoting Brief of Appellee Arco Alaska, Inc. (Gambell I ), at 49).

We held in Gambell I that the Villages' claims to an aboriginal right to hunt and fish in Norton Sound and in the waters in the outer continental shelf were extinguished by the Alaska Native Claims Settlement Act (hereinafter Claims Settlement Act), 43 U.S.C. Secs. 1601-1628 (1971), but that in section 810 of Title VIII of the Conservation Act, Congress provided protection for subsistence uses of the fish and wildlife in the waters and ice over the outer continental shelf by requiring the Secretary to evaluate the effect of a lease sale on subsistence use. Gambell I, 746 F.2d at 579-82. In reversing the district court's orders in Gambell I, we gave the following direction to the district court:

Appellants ask that the lease sale be voided because the Secretary has not complied with the requirements of section 810. Appellees contend that the Secretary has substantially complied with the requirements of the section, albeit acting under other statutes, and if he has not, the proper remedy is to maintain the status quo unless and until the Secretary complies with section 810, citing California v. Watt, 683 F.2d 1253, 1266 (9th Cir.1982), reversed on other grounds, 464 U.S. 312, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984).

These arguments raise factual and legal issues that have not been but should

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be considered initially by the district court.

Gambell I, 746 F.2d at 582-83.

Gambell I was argued before this court on October 7, 1983. On April 17, 1984, while the matter concerning Lease Sale 57 was still under submission to this court, the Secretary held a sale of leases on Lease Sale 83 in the outer continental shelf lands in the Navarin Basin off the shore of Alaska. This court filed its opinion in Gambell I on November 2, 1984. Due primarily to delays requested by the Secretary, the decision in Gambell I did not become final until mandate issued on March 2, 1985.

On April 3, 1985, the People of the Villages of Gambell and Stebbins brought a motion for preliminary injunction to halt exploratory activities on Lease Sale 57.

On April 25, 1985, the People of the Village of Gambell and the intertribal organization of Nunam Kitlutsisti filed a separate action to enjoin future exploratory activities on Lease Sale 83 and to rescind the authority previously granted to the Oil Companies in that portion of the outer continental shelf. Lease Sale 83 consists of approximately 37 million acres and is located in the water of the Bering Sea in the outer continental shelf due west of St. Mathews Island, approximately 250 miles from the mainland of Alaska.

This separate complaint was based on precisely the same grounds alleged in the prior action (Gambell I ) concerning Lease Sale 57: i.e., that the Secretary failed to comply with section 810 of the Conservation Act prior to authorizing exploratory activities in the waters over the outer continental shelf. The district court consolidated these matters for the hearing on the Villages' motion for a preliminary injunction.

The district court applied the "traditional" test for determining whether injunctive relief is warranted, and denied the request for a preliminary injunction. The district court first explained that the Secretary did not comply with the requirements of section 810 of the Conservation Act because he failed to evaluate the subsistence impacts of the leases with the mandate of that law clearly in mind. After finding that "delay in the exploration of the OCS [outer continental shelf] may cause irreparable harm to this nation's quest for new oil resources and energy independence," the court nonetheless concluded:

(1) Movants have established a strong likelihood of success on the merits.

(2) The balance of irreparable harm does not favor the movants.

(3) The public interest favors continued oil exploration, for the reason that the national interest favors OCS [outer continental shelf] oil exploration and such exploration will not cause the type of harm, a restriction in subsistence uses or resources, that ANILCA was designed to prevent.

On May 30, 1985, the district court issued a minute order sua sponte stating that:

The court has been informed that its denial of plaintiffs' motion for preliminary injunction will be appealed to the Ninth Circuit. In order to expedite the appeal, and for the reasons stated in this court's earlier order, the court indicates that it will not entertain a motion for stay pending appeal.

On June 6, 1985, a motions panel of this court issued an order denying...

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