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16 ELR 20245 | Environmental Law Reporter | copyright © 1986 | All rights reserved Tribal Village of Akutan v. HodelNos. A85-701 CIV; J85-037 CIV; J85-038 CIV (D. Alaska January 13, 1986)The court holds that the Secretary of the Interior applied the incorrect standard in determining whether an Outer Continental Shelf lease sale would significantly effect subsistence uses and needs under § 810 of the Alaska National Interest Lands Conservation Act (ANILCA). The court reviews the statutory requirements. ANILCA § 810 requires the Secretary of the Interior to determine whether a lease sale would significantly restrict subsistence uses. If the Secretary finds the lease sale would significantly restrict such uses, then § 810 requires public notice and hearings. After reviewing other 9th Circuit decisions, the court rules the proper legal standard for determining whether significant restriction has occured is one of possibility rather than the likelihood standard used by the Secretary. The court further notes that the Secretary, in the environmental impact statement, did not adequately address how the potential impacts of the lease sale on wildife could affect the availability of subsistence resources. The court also noties that such determination may not be necessary depending on the correct application of the standard. The court requires the state, rather than the village or environmental plaintiffs, to post bond of $10,000 as security for costs pursuant to Federal Rule of Civil Procedure 65(c) and concludes that since plaintiffs have shown a strong likelihood of success on the merits, an injunction should issue. In an accompanying order issued the same day, the court grants partial stay to its preliminary injunction and permits the Secretary to receive bids on Lease Sale No. 92, but enjoins him from opening the bids pending resolution of the issues. Counsel for Plaintiffs Robert Adler Counsel for Defendants William B. Rozell Von der Heydt, J.: THIS CAUSE comes before the court on the plaintiffs' motions for preliminary injunction. Oral argument has been waived by all parties. An injunction must issue in this case because the Secretary applied the incorrect standard in determining whether the lease sale would significantly effect subsistence uses under ANILCA § 810. Given that the Secretary cannot open lease bids based on a probable violation of ANILCA, the court finds it unnecessary to address the remaining claims at this time. ANILCA requires the Secretary, prior to holding any lease sale, to determine whether the lease "would significantly restrict subsistence uses." ANILCA § 810, 16 U.S.C. § 3120 (1982). If the Secretary finds significant restriction, then the notices and hearings stated § 810(a)(1)-(3) are required. The Secretary found that Lease Sale 92 would cause no significant restriction on subsistence for the reason that the lease sale and connected exploration, development, and production activities were "unlikely to significantly restrict subsistence uses" in any area. FEIS IV-K-9 (emphasis added). In so finding, he applied the incorrect legal standard. The Ninth Circuit has held in both Kunaknana v. Clark, 742 F.2d 1145, 1151 [14 ELR 20827] (9th Cir. 1984), and in People of the Village of Gambell v. Hodel, 774 F.2d 1414, 1421-22 (9th Cir. 1985) (Gambell II), that ANILCA requires notice and hearing if the proposed action "may significantly restrict subsistence uses."1 According to the Ninth Circuit in Gambell II, this standard requires a finding of significance if there is a "possibility" of significant restriction, 774 F.2d at 1416, or a "threat" thereof. Id. at 1422. The Ninth Circuit's standard thus represents a lower threshold (i.e., requires less certainty of environmental harm) than the likelihood standard adopted by the Secretary.2 Plaintiffs also allege that the Secretary violated ANILCA in finding that no restriction on subsistence would occur if substitute subsistence species were available, and in evaluating subsistence effects on a regional basis, rather than on a village-by-village basis. Given that the FEIS does not adequately discuss how potential effects on different species could affect the availability of subsistence resources, it is unclear on what basis the Secretary determined (beyond his oil spill risk analysis) that subsistence effects were unlikely. In any event, a new subsistence determination must be made and such a determination could well moot these issues. For similar reasons, the court also finds it unnecessary to address other ANILCA issues at this time. Defendants have indicated to the court that they wish to attempt to dispose of the issues in this action by way of summary judgment motions. The court invites such motions for the reason they potentially would permit it to address and dispose of all issues only once.3 In the event the parties wish to file additional motions, [16 ELR 20246] they should do so by March 12, 1986. For those issues that have already been briefed, the court finds additional rebriefing to be unnecessary. Similarly, if it becomes necessary to address plaintiffs' remaining claims on a preliminary injunction basis, plaintiffs may file renewed motions for preliminary injunction incorporating their current briefing. Fed. R. Civ. P. 65(c) requires this court to address proper security upon the issuance of an injunction. The court finds the tribal village and environmental plaintiffs are unlikely to be in a position to post meaningful security for damages in this action, given the extent of potential economic harm. The State of Alaska shall post a bond of $10,000 as security for costs in this action. No security is required for damages, it being unlikely that damages will accrue or be awarded. In conclusion, the court finds that plaintiffs have established a strong likelihood of success on their ANILCA claim. Accordingly, the court is without discretion and an injunction must issue, no unusual circumstances being present. Gambell II, 774 F.2d at 1422-1426. (1) THAT plaintiffs' motions for preliminary injunction are granted; (2) THAT the State of Alaska post $10,000 security for costs with the court no later than January 24, 1986; and (3) THAT such additional motions as the parties may find appropriate shall be filed no later than March 12, 1986. For the reasons set forth in the court's memorandum and order of this date, IT IS ORDERED: (1) THAT Secretary of the Interior Donald P. Hodel, Director of the Minerals Management Service William D. Bettenberg, and their agents, servants, employees and attorneys are enjoined from receiving, opening, or accepting bids on, or otherwise conducting Lease Sale 92; (2) THAT this injunction shall be effective immediately and shall remain in force until further order of the court; (3) THAT no later than January 24, 1986, the State of Alaska shall post $10,000 security for costs with the court. Order Granting Partial Stay of Preliminary Injunction This court's order of January 13 granting the motions for preliminary injunction of Sale 92 is partially stayed pending resolution of the appeal by the oil company intervenor-defendants Amoco Production Company, et al., to the Ninth Circuit, as follows: 1. The Secretary may receive sealed bids for OCS Lease Sale 92 tracts as previously scheduled for January 15, 1986, but the Secretary is enjoined from opening any OCS Lease Sale No. 92 bids until further order of this court or of a court exercising appellate jurisdiction. 2. The effectiveness of 30 C.F.R. § 256.47(a) and the notice published at 50 Fed. Reg. 51372 (December 16, 1985) to the extent they require bid opening by 11:59 p.m. January 15 are tolled until further order of this court or of a court exercising appellate jurisdiction. See California v. Clark (No. 83-6436, 9th Cir., Order of November 20, 1983). The Secretary of the Interior shall retain all Sale No. 92 bids unopened and under seal until that time. 3. The provision of paragraph 2 of the notice published at 50 Fed. Reg. 51372, permitting bids to be withdrawn up to 30 minutes prior to scheduled bid opening is tolled to the same extent as the provision of the notice referred to in paragraph 2 above. 1. In adopting this standard, the Ninth Circuit no doubt intended courts to draw on NEPA case law as a guideline for determining significance. See Foundation for North American Wild Sheep v. United States Dept. of Agriculture, 681 F.2d 1172 (9th Cir. 1982). 2. Additionally, the court notes that the appropriateness of this "likelihood" standard was specifically argued to the Ninth Circuit in Gambell II and impliedly rejected by that court. See Pl. ex. 10 & 11, Tribal Village reply brief. 3. Absent such motions, each issue must be addressed twice, once on preliminary injunction and once on the merits. Multiple appeals could result. 16 ELR 20245 | Environmental Law Reporter | copyright © 1986 | All rights reserved |