Conservation Law Foundation of New England, Inc. v. Andrus

• Decision Date: 17 December 1979
• Docket Number: 79-1586,Nos. 79-1585,s. 79-1585
• Citation: 623 F.2d 712
• Parties: , 10 Envtl. L. Rep. 20,067 CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC. et al., Plaintiffs, Appellants, v. Cecil D. ANDRUS, etc. et al., Defendants, Appellees, Atlantic Richfield Company et al., Intervenors, Appellees. COMMONWEALTH of MASSACHUSETTS, Plaintiff, Appellant, v. Cecil D. ANDRUS, etc. et al., Defendants, Appellees, Atlantic Richfield Company et al., Intervenors, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 712

623 F.2d 712

14 ERC 1049, 10 Envtl. L. Rep. 20,067

CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC. et al., Plaintiffs, Appellants, v. Cecil D. ANDRUS, etc. et al., Defendants, Appellees, Atlantic Richfield Company et al., Intervenors, Appellees.

COMMONWEALTH of MASSACHUSETTS, Plaintiff, Appellant, v. Cecil D. ANDRUS, etc. et al., Defendants, Appellees, Atlantic Richfield Company et al., Intervenors, Appellees.

Nos. 79-1585, 79-1586.

United States Court of Appeals First Circuit.

Argued Dec. 6, 1979.

Decided Dec. 17, 1979.

Douglas I. Foy, Boston, Mass., with whom Sarah M. Bates, Alan Wilson, Boston, Mass., Frederick Small, and Kenneth T. Hoffman, Cambridge, Mass., were on brief, for appellants in 79-1585.

Stephen M. Leonard, Asst. Atty. Gen., Francis X. Bellotti, Atty. Gen. and Jose R. Allen, Asst. Atty. Gen., Boston, Mass., were on brief, for appellant in 79-1586.

Maryann Walsh, Atty., Dept. of Justice, Washington, D. C., with whom James W. Moorman, Asst. Atty. Gen., Peter R. Steenland, Jr., William M. Cohen, Michael W. Reed and Patricia Young, Attys., Dept. of Justice, Lawrence R. Hoese, Dept. of Interior and John A. Milholland, Dept. of Commerce, Washington, D. C., were on brief, for federal appellees.

Allen P. Rubine, Deputy Atty. Gen., Providence, R. I., with whom Dennis J. Roberts, II, Atty. Gen., Providence, R. I., was on brief, for the State of Rhode Island, J. Joseph Garrahy, Governor intervenor appellee.

E. Edward Bruce, Washington, D. C., with whom Mark D. Nozette, Covington & Burling, Washington, D. C., G. M. Moriarty, Ropes & Gray, Boston, Mass., I. Berry St. John, Jr., and Liskow & Lewis, New Orleans, La., were on brief, for intervenor-appellees Atlantic Richfield, et al.

Neil L. Lynch, Boston, Mass., Chief Counsel to the Governor, Edward L. Selgrade, Boston, Mass., and Paul T. Gilrain, Swampscott, Mass., on brief for Edward J. King, Governor of the Commonwealth of Massachusetts amicus curiae.

Harrison A. Fitch, Boston, Mass., on brief for New England Legal Foundation the New England Council, the Greater Boston Chamber of Commerce, The Greater Providence Chamber of Commerce, and the New Bedford Chamber of Commerce in support of appellees, amicus curiae.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and ZOBEL, ^* U. S. District Judge.

COFFIN, Chief Judge.

This opinion is the third in a series of opinions by this court concerning the litigation which has resulted from the attempts of the Secretary of the Interior to lease tracts for oil and gas exploration, development, and production on Georges Bank through proposed Outer Continental Shelf (OCS) Lease Sale 42. The prior history of this litigation and a description of the underlying facts concerning the Secretary's actions are set forth in our previous opinion, Massachusetts, et al. v. Andrus, et al., 594 F.2d 872 (1st Cir. 1979). This particular opinion is addressed to the issues raised by an appeal from the November 6, 1979, order of the district court denying a motion for a preliminary injunction against the holding of the lease sale.

Following the original opinion of this court, the Secretary produced a First Supplemental Environmental Statement (FSES) and eventually rescheduled the sale of leases for November 6, 1979. The Commonwealth of Massachusetts (Massachusetts) and the Conservation Law Foundation of New England, Inc. (CLF), appellants in this case, asked the district court to enjoin this sale, which it refused to do on November 5, 1979. Appellants immediately filed an appeal from that denial and requested this court to issue a stay pending resolution of the appeal. After an expedited, foreshortened hearing we refused to grant the stay pending appeal, but granted a short stay preventing the Secretary from opening bids until 2:00 p. m., on November 6, 1979. Before the sale could be held, however, Circuit Justice Brennan continued our stay. The Supreme Court subsequently vacated the stay on November 9, 1979. Since, as a result of Justice Brennan's stay, the date of the sale had passed without an opening of the bids, the Secretary was required to re-notice and reschedule the sale. The new sale date was set for December 18, 1979.

As we indicated in our previous opinions, in order for appellants to convince us to reverse the district court's denial of the preliminary injunction, they must establish that the district court opinion was clearly erroneous or clearly the result of an error of law. Since the district court ruled that appellants had not demonstrated a probability of success on the merits, a traditional factor required for the issuance of a preliminary injunction, appellants focus their arguments on this appeal on the merits of their case. They put forward three main arguments to support their claim that the district court clearly committed an error of law in judging the likelihood of success on the merits. We shall address each of these arguments in turn.

I. Endangered Species Act

Appellants assert that the lease sale will violate section 7(d) of the Endangered Species Act, 16 U.S.C. § 1536(d). Section 7(d), Limitation on Commitment of Resources, provides that the Secretary cannot

make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would avoid jeopardizing the continued existence of any endangered or threatened species . . . .

Appellants claim that the prohibited "irreversible or irretrievable commitment of resources" will occur when the sale of leases is held. ¹ They support this claim by reasoning that once the Secretary sells the leases, he can cancel them only pursuant to the standards of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. (1978) (OCSLA), specifically, §§ 1340(c)(1) and 1334(a)(2)(A). These standards, appellants argue, are less stringent than those of the ESA. ² Thus, appellants continue, the resource which will forever be lost once the sale is held is the ability of the Secretary to apply the strict standards of the ESA.

The district court rejected this argument by reasoning that if there were any difference between the OCSLA and ESA standards, the lease stipulations included in the notice of sale, which conditions any rights acquired by successful lease applicants, eliminated the difference by securing authority for the Secretary to regulate post-sale activities. In our opinion announcing our denial of the request for a stay pending this appeal, we indicated that we were inclined to agree with the district court's reasoning on this point.

Appellants now contend that with the brief additional time which we have for deciding this appeal, we should see that the lease stipulations do not in fact close the gap between the ESA and OCSLA standards. We now find, however, that we need not address this issue. The Secretary points out that appellant's argument is based on the assumption that the ESA and OCSLA are mutually exclusive. This assumption, the Secretary contends, is incorrect the standards of these two acts are complementary, and the ESA will continue to apply of its own force to major actions taken by the Secretary after the lease sale is held. Thus, the Secretary claims, if he cannot, for example, insure that exploration will not jeopardize the continued existence of the right and humpback whales, he will not approve exploration plans.

We find this argument by the Secretary to be persuasive. The ESA by its terms applies to all action by the Secretary. Therefore, any contract which he enters into ( e. g., a lease) which requires a future action on his part (e. g., approval of plans) will contain as an implied term a condition that the Secretary will behave lawfully (e. g., not violate the ESA). This reasoning is simply an example of the basic rule of contract law that contracts generally will not be interpreted so as to render them illegal. This focus on contract analysis is appropriate since appellants' whole argument rests upon an assumption that when the government sells the leases, the purchasers will acquire as part of the transaction the right to claim that the government is bound by the terms of the lease. This assumption is reasonable, but it begs the precise question what the terms of the lease are. Specifically, do they include an assumption that the Secretary will comply with the ESA when he takes further actions?

The correctness of the Secretary's contention is underscored by the fact that the strictures of the ESA apply to lease applicants as well as the government. Thus, under the ESA both the Secretary and the lease applicants have certain obligations which can be fulfilled without abrogating any explicit terms of the leases.

We recognize, of course, that the notice of sale does not explicitly state that the ESA standards will apply when appropriate. Neither do they explicitly state the contrary. This lack of clarity might possibly have led unhappy lessees to claim at a later date that the Secretary could not apply ESA standards. Our agreement with the Secretary's interpretation of the relationship between the ESA and OCSLA, however, effectively forecloses any such argument. ³

We therefore find that the district court did not abuse its discretion in holding that the plaintiffs had not demonstrated a probability of success on the merits on the ESA issue.

II. NEPA

Appellants' second main argument on the merits is directed at the environmental statements issued by the Secretary. Appellants claim that these statements are deficient in numerous respects and violate the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (1976) (NEPA).

In appraising the criticisms which appellants direct to the sufficiency of the Final Supplement to Environmental Statement (FSES) and the Secretary's responses to their comments, we bear in mind the historical context. This statement...