DONALD P. HODEL, ET AL, PETITIONERS V. TRIBAL VILLAGE OF AKUTAN, ET
AL.
   No. 86-303
   In the Supreme Court of the United States
   October Term, 1986
   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit
   The Solicitor General, on behalf of the Secretary of the Interior
and the other federal parties, petitions for a writ of certiorari to
review the judgment of the United States Court of Appeals for the
Ninth Circuit in this case.
                       PARTIES TO THE PROCEEDING
   The petitioners are Donald P. Hodel, Secretary of the Interior,
subordinate officials of the Department of the Interior, Anthony
Calio, Administrator of the National Oceanic and Atmospheric
Administration (NOAA), and NOAA.
   The respondents are:
   Governor Bill Sheffield, State of Alaska
   Alaska Independent Fishermen's Marketing Association
   Aleutians East Coast Resource Service Area
   Bering Sea Fishermen's Association
   Bristol Bay Borough
   Bristol Bay Coastal Resource Service Area
   Cenaliulriit
   United Fishermen of Alaska
   Tribal Village of Akutan
   Tribal Village of Togiak
   Tribal Village of Nelson Lagoon
   Trustees for Alaska
   Natural Resources Defense Council
   Eskimo Walrus Commission
   Northern Alaska Environmental Center
   City of Quinhagak
   Nunam Kitlutsisti
   Alaska Center for the Environment
   Village of False Pass
   Sierra Club
   Wilderness Society
   Environmental Policy Institute
   National Audubon Society
   Defenders of Wildlife
   Amoco Production Company
   ARCO Alaska, Inc.
   Chevron U.S.A., Inc.
   Elf Aquitaine, Inc.
   Exxon Corporation
   Mobil Exploration & Producing Services, Inc.
   Murphy Oil Company
   Sohio Alaska Petroleum Company
   Shell Western E & P, Inc.
   Union Oil Company of California
   International Association of Geophysical Contractors
            TABLE OF CONTENTS
   Parties to the Proceedings
   Opinions below
   Jurisdiction
   Statute involved
   Questions Presented
   Statement
   Reasons for granting the Petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E
   Appendix F
   Appendix G
   Appendix H
   Appendix I
                            OPINIONS BELOW
   The decision of the court of appeals (App., infra, 1a-7a) is
reported at 792 F.2d 1376.  /1/ The order of the district court as
modified (App., infra, 9a-15a) is unreported.
                             JURISDICTION
   The judgment of the court of appeals (App., infra, 20a) was entered
on April 28, 1986.  By order dated July 17, 1986, Justice Rehniquist
extended the time for filing a petition for a writ of certiorari to
and including August 26, 1986.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).
                           STATUTE INVOLVED
   Section 810 of the Alaska National Interest Lands Conservation Act,
16 U.S.C. 3120, is set forth in the appendix to this petition (at
40a-41a).
                          QUESTIONS PRESENTED
   1. Whether a district court must, except in unusual circumstances,
enter a preliminary injunction whenever it finds a likely violation of
a procedural requirement of an environmental statute.
   2. Whether Section 810 of the Alaska National Interest Lands
Conservation Act (ANILCA), 16 U.S.C. 3120, which requires federal land
managers to determine whether proposed dispositions of public lands in
Alaska "would significantly restrict subsistence uses" and, if so, to
follow certain procedures and make certain findings prior to any such
disposition, applies to the outer continental shelf (OCS), when the
Act defines "public lands" as lands which are "in Alaska" and "the
title to which is in the United States."
   3. Whether, even if Section 810 applies to the OCS, the Secretary
may not proceed with OCS leasing until the Secretary of the Interior
complies with Section 810's procedural requirements for all stages of
the OCS program, including development and production.
   4. Whether, even though the Secretary has found that significant
restrictions on subsistence uses are unlikely, the Secretary still
must follow the procedures mandated by Section 810 for disposition of
public lands that "would significantly restrict subsistence uses"
because of the possibility that such effects could nevertheless occur.
                               STATEMENT
   This case concerns the application of Section 810 of the Alaska
National Interest Land Conservation Act (ANILCA), 16 U.S.C. 3120, to
the Secretary of the Interior's decision to hold Lease Sale 92 in the
North Aleutian Basin area of the outer continental shelf (OCS)
offshore Alaska.  This case also concerns the appropriate judicial
standard for determining whether injunctive relief is appropriate to
redress a violation or a likely violation of Section 810.  Both issues
are currently pending before the Court in Hodel v. Village of Gambell,
cert. granted, No. 85-1406 (June 2, 1986), and Amoco Production Co. v.
Village of Gambell, cert. granted, No. 85-1239 (June 2, 1986).
   1. In November 1974, the Secretary of the Interior first announced
a lease sale in the Lease Sale 92 area (App. infra, 22a).  The
Secretary, however, postponed the lease sale to respond to concerns
expressed by the State of Alaska.  In March 1984, in response to those
concerns, the Secretary reduced the sale area by 83 percent (from 32.5
to 5.6 million acres) and adopted stringent mitigation measures to
provide extra protection for fishery habitats, commercial fishing, and
biological resources (1 Minerals Mgmt. Service, Alaska OCS Region,
U.S. Dep't of Interior, Final Environmental Impact Statement (FEIS)
I-A-3 (1985);  see Secretary of the Interior, Statement of Reasons for
the Decision on Sale 92, 71 (Dec. 1985)).
   Although the Secretary was of the view that Section 810 of the
ANILCA does not apply to the OCS, he prepared a thorough pre-sale
Section 810 evaluation of the impacts on "subsistence uses" /2/ both
of the lease sale and of possible future activities at the exploration
and development and production stages;  the Secretary incorporated the
evaluation into the draft and final environmental impact statements
prepared pursuant to the National Environmental Policy Act of 1969
(NEPA), 42 U.S.C. (& Supp. II) 4321 et seq. (see FEIS, at
IVK-1-IVK-10).  In addition, the Secretary prepared a formal 72-page
Statement of Reasons for the Decision on Sale 92 (Statement of
Reasons).  The Statement of Reasons concluded based on a careful
evaluation of subsistence uses and consideration of the proposed oil
and gas activities, that neither leasing, exploration, nor production
resulting from Lease Sale 92 would significantly restrict subsistence
uses (App. infra, 24a).  Because the Secretary recognized, however,
that findings concerning possible future activities, particularly
those regarding activities at the development and production stage,
necessarily involve substantial speculation, the Secretary added that
he would conduct new Section 810 analyses prior to his approval of any
exploration plan, as well as prior to his approval of any development
and production plan (App., infra, 26a).
   2. In December 1985, respondents, including the State of Alaska,
Trustees for Alaska, and the Tribal Village of Akutan, filed three
lawsuits (later consolidated) in the United States District Court for
the District of Alaska to enjoin the Secretary from conducting Lease
Sale 92, which was scheduled to commence with the opening of sealed
bids on January 15, 1986 (50 Fed. Reg. 51372 (1985)).  Respondents
alleged, inter alia, that the Secretary had violated Section 810 of
ANILCA by construing Section 810 to inquire implementation of its
notice, hearing and findings provisions (see 16 U.S.C. 3120(a)(1)-(3))
only when a proposed disposition of public lands "would" significantly
restrict subsistence uses.  /3/ According to respondents, those
additional procedural requirements are triggered where, as in this
case, the proposed activity "may," but is unlikely to, restrict
subsistence uses.
   On January 13, 1986, the district court granted respondents' motion
for a preliminary injunction and enjoined the Secretary from holding
Lease Sale 92 (App., infra, 10a-15a). The court relied on the Ninth
Circuit's decisions in Kunaknana v. Clark, 742 F.2d 1145 (1984), and
Village of Gambell v. Hodel, 774 F.2d 1414 (1985), cert. granted, No.
85-1239 (June 2, 1986), in concluding both that the Secretary's
second-tier procedural duties under Section 810 were triggered by a
showing of a mere "possibility" or "threat" of significant restriction
of subsistence uses and that a preliminary injunction was required
(App., infra, 11a-13a).  The court ruled that Ninth Circuit precedent
compels the issuance of a preliminary injunction where, as here, the
moving parties had established a strong likelihood of success on their
ANILCA claim (id., at 13a).  Later that day, the district court
granted the Secretary's and the oil companies' applications for a
partial stay of the injunction to allow the Secretary to receive all
bids and to retain them unopened after midnight deadline on January
15, 1986 (id. at 16a-17a).
   3. On April 28, 1986, the court of appeals affirmed.  The court of
appeals framed the legal issue presented as whether "the notice and
hearing requirements under ANILCA section 810(a) apply * * * (only
when) the Secretary find(s) that a proposed action 'would
significantly restrict subsistence used' (16 U.S.C. Section 3120(a)
(emphasis added)) (o)r is a finding that significant restrictions
'may' result sufficient, even though such restrictions are deemed
unlikely" (App., infra, 4a-5a).  The court concluded that a
determination that a significant restriction on subsistence is
unlikely, but may occur, is sufficient to trigger Section 810's
additional requirements.  The court reasoned the dictum to the effect
in its prior decision in Hodel v. Village of Gambell, supra, was
"plainly controlling," notwithstanding that both the plain meaning of
the statutory language and deference to agency construction supported
an interpretation of Section 810 that limited its additional
requirements to instances when the Secretary determined that such
significant restrictions "would" occur (App., infra, 7a).  The court
acknowledged that in the absence of the Gambell dictum, these two
competing considerations "might be compelling" (ibid.).  Finally, the
court of appeals affirmed the district court's issuance of a
preliminary injunction on the ground that "(a)bsent unusual
circumstances, irreparable damage is presumed and an injunction is
required when an agency violates ANILCA Section 810(a)" (id. at 4a
(citing Village of Gambell v. Hodel, 774 F.2d at 1422-1423)).  See
App., infra, 7a.
   Pursuant to a joint motion of the parties, the district court on
May 21, 1986, issued an order continuing its stay of the preliminary
injunction and premitting the Secretary to continue to hold the
unopened bids pending this Court's disposition of Hodel v. Village of
Gambell, No. 85-1406, and Amoco Production Co. v. Village of Gambell,
No. 85-1239.
                   REASONS FOR GRANTING THE PETITION
   1. The Court has granted certiorari in Hodel v. Village of Gambell,
No. 85-1406 (June 2, 1986), and Amoco Production Co. v. Village of
Gambell, No. 85-1239 (June 2, 1986), to consider the application of
Section 810 of ANILCA to an OCS lease sale, including:  (1) whether
Section 810 of ANILCA applies to the OCS;  (2) whether OSC leasing may
proceed before the Secretary complies with Section 810's procedural
requirements for later stages of the OCS process;  and (3) whether a
finding that significant subsistence restrictions "may" occur,
triggers the additional procedural requirements of Section 810.  The
Court will also consider in those cases the standards for granting
injunctive relief to redress violations or likely violations of
Section 810.  Because the same issues are presented here as well, the
Court should hold the petition in this case and dispose of it as
appropriate in light of its decision in Village of Gambell.
   2.a. In addition to repeating the errors of Village of Gambell, the
decision of the court of appeals in this case exacerbates these
errors.  In Village of Gambell, the Secretary had determined that
significant subsistence restrictions would not occur at either the
lease or exploration stage, but were likely to occur in certain areas
at the development and production stage, should that stage be reached,
which the Secretary concluded was unlikely.  The court of appeals in
that case held (erroneously, in our view) that the possibility of such
later restrictions was sufficient to trigger Section 810's additional
procedural requirements, although Section 810 expressly provides that
those procedures must be followed only when a proposed disposition of
public lands "would" significantly restrict subsistence uses.  The
court, in effect, ruled that the statutory term "would" means "may."
Here, the court compounded its error by ruling that the "would"
standard was met even where, as here, the Secretary had found that
significant restrictions on subsistence resources were unlikely to
occur at any stage, including development and production.  Hence, the
court has further diverged from the plain meaning of Section 810,
which by utilizing "would" and not "may", requires some likelihood of
significant subsistence restrictions.  Cf. Immigration &
Naturalization Service v. Stevic, 467 U.S. 407, 422 (1984) (use of
"would" in statute denotes standard of "likelihood").
   b. Although we believe that the court of appeals erred in this
additional respect, we do not seek review at this time on the issue.
The basic issue of statutory construction is already before the Court
in Village of Gambell and its decision in that case may well be
controlling here.
                              CONCLUSION
   The petition for a writ of certiorari should be held and disposed
of as appropriate in light of the Court's decision in Hodel v. Village
of Gambell, No. 85-1406, and Amoco Production Co. v. Village of
Gambell, No. 85-1239.
   Respectfully submitted.
   CHARLES FRIED
      Solicitor General
   RALPH W. TARR
      Solicitor Department of the Interior
   AUGUST 1986
   /1/ The decision was originally issued as a memorandum opinion not
for publication.  On July 1, 1986, the panel issued an order
redesignating the decision as a signed opinion (792 F.2d 1376).  See
App., infra, 8a.
   /2/ The term "subsistence uses" is defined in Section 803 of
ANILCA, 16 U.S.C. 3113, as "the customary and traditional uses by
rural Alaska residents of wild, renewable resources for direct
personal or family consumption as food, shelter, fuel, clothing,
tools, or transportation;  for the making and selling of handicraft
articles out of nonedible byproducts of fish and wildlife resources
taken for personal or family consumption;  for barter, or sharing for
personal or family consumption;  and for customary trade."
   /3/ Respondents also alleged that the Secretary's decision to
conduct the lease sale violated Section 19 of the Outer Continental
Shelf Lands Act (OCSLA), 43 U.S.C. 1345, NEPA, 42 U.S.C. (& Supp. II)
4321 et seq., and Section 7 of the Endangered Species Act of 1973, 16
U.S.C. 1536.
   APPENDIX