ELR Citation: ELR 20562
No(s). 85-3877 (9th Cir. Oct 25, 1985)

The court holds that the district court erred when it refused to preliminarily enjoin oil and gas exploration on lease sales in the outer continental shelf (OCS) off Alaska even though plaintiffs demonstrated a strong likelihood of success on the merits for their claim that the Secretary of the Interior failed to comply with the Alaska National Interest Lands Conservation Act (ANILCA). The court first holds that the district court correctly determined that plaintiffs are likely to succeed on the merits with their claim that the Secretary did not comply with ANILCA §810, which requires the Secretary to evaluate the effects of public land disposition on subsistence use, because he did not consider it applicable to the OCS. The court rules that the Secretary's compliance with the National Environmental Policy Act and the OCS Lands Act was not substantial compliance with ANILCA. The court also holds that the Secretary violated the procedure for notice, hearing, and findings required prior to the lease of public lands under ANILCA §810. That the Supreme Court has held that the consistency requirements of the Coastal Zone Management Act do not apply to lease sales is not relevant here where Congress has expressly provided for detailed procedures to evaluate effects on subsistence use.

The court next holds that issuance of a preliminary injunction does not pose a threat of irreparable harm to the environment or to the performance of any long-term contracts and therefore the district court erred when it found that this is the type of rare or unusual case which would make a preliminary injunction inappropriate where a strong likelihood of success on the merits has been shown. Irreparable injury is presumed when an agency violates the substantive provisions of an environmental statute and the court refuses to expand the two existing exceptions. In addition, the court holds that the district court erred in determining that the public interest favors oil exploration over the preservation of subsistence culture. In enacting §810, Congress considered the policy of the OCS Lands Act to encourage the development of the OCS, but made this secondary to the protection of subsistence needs of native Americans.

The court holds that its earlier decision holding ANILCA §810 applicable to the OCS should be applied retroactively to both lease sales. The court holds that plaintiff's claim is not barred by laches since defendant did not show that plaintiff unreasonably delayed in asserting its legal right.

A dissenting judge would hold that the district court did not err as a matter of law in denying plaintiff's motion for a preliminary injunction since an injunction must be a flexible remedy and because the economic loss to the oil companies is the equivalent of irreparable harm. In addition, the judge would hold that the decision should not be applied retroactively since there is no evidence that any aspect of the sales will restrict subsistence uses. Finally, the dissent would have the court give more guidance to the district court on the application of §810.

Counsel for Plaintiffs-Appellants
Donald S. Cooper, James A. Bamberger, Heather H. Grahame
Alaska Legal Services Corp.
550 W. 8th Ave., Suite 300, Anchorage AK 99501
(907) 276-6282

Counsel for Defendants-Appellees
Carl J.D. Bauman
Hughes, Thorsness, Powell & Brundin
509 W. Third Ave., Anchorage AK 99501
(907) 274-7522

F. Henry Habicht II, Ass't Attorney General; Michael W. Reed, Bruce M. Landon, Jacques B. Gelin, David C. Shilton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Before Pregerson and Dimmick,^* JJ.