all these cases on the basis of intervening changes in constitutional interpretation." 401 U. S., at 689.1

Application of these principles to this case is not simple. Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982), were decided before petitioner's conviction became final. Accordingly, under the retroactivity principles adopted in our recent decision in Griffith v. Kentucky, supra, petitioner is entitled to the benefit of those decisions. The Court appears to think that Skipper, supra, merely applied the settled principles of Lockett and Eddings to a new fact situation, and thus that petitioner also is entitled to the benefit of the Court's decision in Skipper.2

I do not agree that petitioner is entitled to the benefit of our decision in Skipper. I continue to think that the result in Skipper was "not required by our decisions in Lockett and Eddings," Skipper, supra, at 9 (POWELL, J., concurring in judgment) (citations omitted). In Lockett and Eddings, the Court held that the Eighth Amendment prohibits States from excluding, at a capital-sentencing proceeding, relevant evidence that tends to lessen the defendant's culpability. Lockett v. Ohio, supra, at 604; Eddings v. Oklahoma, supra, at 114. In Skipper, this rule was extended to require admission of evidence that was unrelated to culpability. Rather, the State was required to admit evidence relevant to the de

'Justice Harlan identified two exceptions to this rule: cases that "place ... certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority," 401 U. S., at 692, and where there are "claims of nonobservance of those procedures that . . . are implicit in the concept of ordered liberty,'" id., at 693 (quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937)). Neither of these exceptions is applicable to this

case.

The Court supports this conclusion by reference to the statement in United States v. Johnson, 457 U. S. 537 (1982), that "when a decision of this Court merely has applied settled precedents to new and different factual situations, no real question has arisen as to whether the later decision should apply retrospectively,... because the later decision has not in fact altered that rule in any material way." Id., at 549.

fendant's probable future conduct as a prisoner. Neither the author of the plurality opinion in Lockett nor the author of the Court's opinion in Eddings agreed with the Court's decision in Skipper. Although I am of course bound by the Court's decision on the merits in Skipper, this is not incompatible with my view that Skipper broke new ground. Therefore, I do not believe this petitioner's conviction was incorrect under the law existing when the conviction became final. The South Carolina court decided this case in accord with the precedents existing at the time of petitioner's conviction.

I acknowledge that we cannot determine with certainty how the Court would have decided this case at the time petitioner was convicted. Because of the inherent subjectivity of this determination, I do not find summary disposition of this case appropriate. Moreover, there are several questions related to this case that have not been decided by this Court's decisions. At least in the context of habeas petitions, we have not addressed the standards by which a court should determine the retroactive effect of cases like Skipper that arguably follow from pre-existing precedents. Nor has the Court decided whether the same retroactivity rules should apply to state postconviction proceedings that apply to

The Court in Skipper explained: "Consideration of a defendant's past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing: 'any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose."" Skipper v. South Carolina, 476 U. S. 1, 5 (1986) (quoting Jurek v. Texas, 428 U. S. 262, 275 (1976) (joint opinion of Stewart, PoWELL, and STEVENS, JJ.)). The "past conduct" to which the Skipper Court referred was Skipper's good behavior after his conviction and death sentence.

'I am not the first to note the difficulty of making these determinations. See Desist v. United States, 394 U. S. 244, 263–269 (1969) (Harlan, J., dissenting); Mackey v. United States, 401 U. S. 667, 695 (1971) (opinion of Harlan, J., concurring in judgment in Mackey and dissenting from judgment in Williams v. United States, 401 U. S. 646 (1971)).

POWELL, J., dissenting

480 U. S.

federal habeas proceedings. A substantial argument could be made that this is a question of state procedural law and that-whatever the federal rule eventually may becomestate courts considering such petitions need not consider developments in constitutional law that occur after the conviction became final. Of course, we should not resolve these questions without full briefing and consideration.

If these questions were properly presented, I would vote to grant the petition for a writ of certiorari. As the more important questions are not directly raised, my vote is to deny the petition. It seems to me that summary reversal is wholly inappropriate, and accordingly I dissent.

Syllabus

AMOCO PRODUCTION CO. ET AL. v. VILLAGE OF GAMBELL ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 85-1239. Argued January 12, 1987-Decided March 24, 1987* Section 810(a) of the Alaska National Interest Lands Conservation Act (ANILCA) provides, inter alia, that, before allowing the use, occupancy, or disposition of public lands that would significantly restrict Alaskan Natives' use of those lands for subsistence, the head of the federal agency having primary jurisdiction over the lands must give notice, conduct a hearing, and determine that the restriction of subsistence uses is necessary and that reasonable steps will be taken to minimize adverse impacts. Petitioner Secretary of the Interior (Secretary) granted oil and gas leases to petitioner oil companies off the Alaska coast under the Outer Continental Shelf Lands Act (OCSLA). Claiming that the Secretary had failed to comply with §810(a), respondents, two Alaska Native villages and a Native organization, sought injunctions to, inter alia, prohibit exploratory drilling under the leases. The District Court held that ANILCA applies to the OCS. It denied respondents' motions for preliminary injunctions, ruling that, although respondents had established a strong likelihood of success on the merits, injunctive relief was inappropriate because the balance of irreparable harm did not favor them, and the public interest favored continued oil exploration, which would not cause the type of harm-a restriction in subsistence uses or resources-that ANILCA was designed to prevent. The Court of Appeals affirmed the holding that ANILCA applies to the OCS but reversed the District Court's denial of a preliminary injunction. The court held, inter alia, that irreparable damage is presumed when an agency fails to evaluate thoroughly the environmental impact of a proposed action, and that injunctive relief is the appropriate remedy for a violation of an environmental statute absent rare or unusual circumstances.

Held:

1. The Court of Appeals' direction of a preliminary injunction conflicted with Weinberger v. Romero-Barcelo, 456 U. S. 305, and was in

*Together with No. 85-1406, Hodel, Secretary of the Interior, et al. v. Village of Gambell et al., also on certiorari to the same court.

Syllabus

480 U.S. error. Section 810(a)'s purpose is to protect subsistence resources from unnecessary destruction, not to prohibit all federal land uses that would adversely affect such resources, and there is no clear indication in ANILCA that Congress intended to limit district courts' traditional equitable discretion by requiring them to issue injunctions in all cases. The Court of Appeals erroneously focused on § 810's procedure rather than on its underlying substantive policy of preservation of subsistence resources. The District Court's decision does not undermine that policy, since it was based on findings that exploration activities would not significantly restrict subsistence uses, and that the Secretary can control the offshore-leasing process even after exploration is completed, which findings the Court of Appeals did not dispute. Instead, that court stated and relied on a presumption of irreparable harm which is contrary to traditional equitable principles, has no basis in ANILCA, and is unnecessary to fully protect the environment. Furthermore, the balance of harms favors the District Court's ruling since the oil company petitioners had committed approximately $70 million to exploration which would have been lost had the preliminary injunction been issued. Moreover, the Court of Appeals' conclusion that the public interest favored injunctive relief because the interests served by ANILCA supersede all others is not supported by the statutory language, which merely declares that preservation of subsistence resources is a public interest that should be reconciled with competing interests where possible. Pp. 541-546.

2. Section 810(a) does not apply to the OCS. Pp. 546-555.

(a) By ANILCA's plain language, § 810(a) applies only to federal lands within the State of Alaska's boundaries, since the Act defines "public lands" to mean federal lands situated “in Alaska," which phrase has a precise geographic/political meaning that can be delineated with exactitude to include coastal waters to a point three miles from the coastline, where the OCS commences. Pp. 546-548.

(b) Nothing in the language or structure of ANILCA compels this Court to deviate from the plain meaning of "Alaska." Title VIII's subsistence-protection provisions constitute just 1 of ANILCA's 15 Titles, none of the rest of which has any express or implied applicability to the OCS, and all but 2 of which utilize the same definition of “public lands" as Title VIII. Moreover, § 1001(a) of the Act contains the lone express reference to the OCS which is intended to establish that section's inapplicability to the OCS. Furthermore, §810(a) itself suggests that it does not apply to the OCS when it refers to "the Federal agency having primary jurisdiction," since no federal agency has "primary jurisdiction" over the OCS. Pp. 548-552.