Massachusetts v. Andrus

Nos. 78-1036; -1037 (1st Cir. January 30, 1978)

On an emergency appeal from the preliminary injunction issued in Massachusetts v. Andrus, 8 ELR 20187 (D. Mass. Jan. 28, 1978), the First Circuit declines to reverse the district court's ruling and thereby reinstate the outer continental shelf oil and gas lease sales which had been scheduled for the following day. The court is unable to find that the district court was manifestly incorrect in ascribing to the Secretary of the Interior a fiduciary relationship to Georges Bank fishing resources under the Outer Continental Shelf Lands Act. Similarly, the trial court's ruling as to the irreparability of the harm in proceeding with the sale as well as its finding that the environmental impact statement was deficient in failing to address the issue of potential marine sanctuary designation cannot be said to be a reversible error without a full hearing on the merits.

Counsel are listed at 8 ELR 20187.

[8 ELR 20192]

Campbell, C.J.:

Memorandum and Order

A court of appeals may reverse the district court's issuance of a preliminary injunction only if it has been demonstrated that the court abused its discretion or committed a clear error of law. Roselli v. Affleck, 508 F.2d 1277, 1280 (1st Cir. 1974), cert. denied, 421 U.S. 967 (1975). By the same token, a judge of the court of appeals may stay such an injunction on an emergency basis, prior to the court's hearing of the appeal, only if it is most clearly manifest that the lower court acted beyond its authority.

While appellants attempt to paint the district court's action as both "unprecedented" and as an invasion of the power of the executive branch, I am unable to say from my limited exposure to the extensive record below, and from the briefs and arguments presented, that the district court has necessarily acted arbitrarily or erroneously. While I have yet to reach a final view, it is at least not inconceivable to me that 43 U.S.C. §§ 1332(b) and 1334, when read with other statutory provisions and legal doctrines, impose on the Secretary of the Interior the sort of fiduciary role ascribed by the district court. If so, it is possible, in light of his own expressed views on the matter, that the Secretary acted capriciously by proposing to accept bids now without awaiting the outcome of the protective legislation pending in Congress to which he had referred. And the failure of the environmental impact statement even to mention the possible application of the so-called marine sanctuary legislation, 16 U.S.C. § 1432, to the Georges Bank area may have been an oversight serious enough to require rectification before bids can be accepted. At least, I am unwilling at this time to project these questions as being foreclosed, given the long term importance of the underlying issue.

I cannot say, furthermore, that the judge below was without reason in finding that acceptance of the leases as scheduled would cause irreparable harm. While direct harm from exploration seems unlikely to occur within the next several months, it could occur within the year, and permitting the acceptance of bids now could have irreversible consequences in other respects.

In sum, when dealing with a resource, such as the Georges Bank fishery, which, as the district court says, "has taken millions of years to accrue, and which will be with us for better or worse for untold centuries to come," a delay of several months in order to give meaningful judicial consideration to these questions seems not unreasonable. There may be issues more serious than ones involving the future of the oceans of our planet and the life within them, but surely they are few.

Although the stay is denied, the appeal should be heard and decided as rapidly as possible. The parties have indicated their willingness to expedite their appeals.

The parties are granted leave to proceed upon the certified record upon appeal without reproduction in appendix form. Briefs for appellants are to be filed by February 14, 1978. Briefs for appellees are to be filed by February 28, 1978.

These cases are to be heard at the March 1978 session.