(dissenting).
This is the second time this court has punted to the trial court. In the first ap*1429peal, Village of Gambell v. Clark, 746 F.2d 572 (9th Cir.1984) (“Gambell I”) it was clear that the Secretary of Interior had violated an environmental statute by not complying with section 810 of the Alaska National Interest Lands Conservation Act (ANILCA). The court, however, did not direct the trial court to enter an injunction. Instead, the only guidance it gave to the trial court was for it to determine “the proper remedy.” Id. at 573. The trial court determined that, at this time, a proper remedy does not include a preliminary injunction.
The majority now tells the trial court, on the same facts available in Gambell I, that the trial court erred and that it must enter a preliminary injunction. Nevertheless, the majority does not tell the trial court whether a permanent injunction must be issued, or whether post-sale compliance with section 810 is acceptable. Thus, this case will probably become a trilogy.
Our review of the trial court’s decision denying the preliminary injunction is limited. Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521 (9th Cir.1984). The trial court’s decision to grant or deny an injunction is discretionary and will be reversed only if based on erroneous legal standards or clearly erroneous findings of fact. Sports Form, Inc. v. United Press International, 686 F.2d 750 (9th Cir.1982). I find that the trial court used the correct legal standard and that its findings of fact are supported by the record. Thus, I would affirm its discretionary decision to deny the preliminary injunction. I would also not apply Gambell I retroactively to Lease No. 83.
I.
The trial court found that while appellants were likely to succeed on the merits the balancing of the irreparable harms favored appellees, not appellants. It accordingly refused to issue a preliminary injunction.
The majority, in reversing the trial court’s decision, advances a new rule: absent unusual circumstances, an injunction must be issued when an environmental statute has been violated.1 The Supreme Court, however, has rejected such a rigid approach to the issuance of an injunction. In Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), the Navy had violated the provisions of an environmental statute — the federal Water Pollution Prevention and Control Act, 33 U.S.C. § 1251 (1982). The district court refused to enter an injunction pending compliance. The Court of Appeals for the First Circuit reversed holding that the district court was required to enter an injunction. Romero-Barcelo v. Brown, 643 F.2d 835 (1st Cir.1981). The First Circuit stated that “regardless of the district court’s finding that the Navy’s dropping of ordinance caused no significant harm to the environment, it erred in failing to consider the judiciary’s ‘responsibility to protect the integrity of the ... process mandated by Congress____’” Id. at 861 (citations omitted). The Supreme Court reversed. The Court noted that the equitable remedy of an injunction requires flexibility and the exercise of discretion and that it should only be entered to protect a party from irreparable harm. Weinberger v. RomeroBarcelo, supra 456 U.S. at 312, 102 S.Ct. at 1803. The majority does not include this case in its analysis of when an injunction should be issued for the violation of an environmental statute. (See Majority Opinion, section C.) In my opinion it is binding precedent.
While there is a presumption that irreparable harm flows from a violation of an environmental statute, Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985), such a *1430presumption is not irrebuttable. A party opposing the issuance of an injunction may present evidence showing that no irreparable harm will occur. Appellees have done exactly that. Appellees presented the trial court with substantial evidence showing that it was highly unlikely that exploratory activities would adversely affect subsistence resources. In addition, appellees presented evidence which showed that they would have suffered irreparable harm if a preliminary injunction had been issued. At the time the district court was deciding whether to enter a preliminary injunction, Exxon, Amoco, and ARCO had committed almost $70 million in support of their plans to explore Lease Tracts Nos. 57 and 83 during the summer of 1985. If the trial court had enjoined their exploration activities their money would have been lost. The permanent loss of $70 million constitutes substantial irreparable harm. In contrast, the appellants advanced two arguments to support the presumption of irreparable harm: (1) the danger of bureaucratic commitment and (2) speculative harm to the environment. The record amply supports the trial court’s conclusion that appellants would not suffer any significant harm.2 Thus, appellees successfully rebutted the presumption which favored appellants. Accordingly, the trial court did not err in refusing to grant the injunction.
II.
The Lease No. 83 sales were conducted six and one-half months before this court filed its decision in Gambell I. Appellants, who were aware of Lease Sale No. 83, did not file a suit advancing the ANILCA claim as they had done in Lease No. 57. Moreover, they did not challenge Exxon’s, ARCO’s or Amoco’s plans of exploration which were approved by the Department of Interior. Relying on these approvals, Exxon, ARCO, and Amoco committed over $60 million preparing for the 1985 drilling season. It was not until April 22, 1985, a full year after the lease sales were conducted and five months after Gambell I was decided that appellants filed a complaint arguing that Lease Sale No. 83 should also be voided.
In Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the Supreme Court set forth three factors to be used for determining whether to apply a court decision retroactively.3 The majority concedes that Gambell I established a new principle of law. This weighs in favor of not applying Gambell I to Lease No. 83. I disagree, however, with the majority’s conclusions as to the other two factors.
The majority concludes, without providing an adequate explanation, that the retroactive application of Gambell I would further the operation of the statute. Contrary to the majority’s assertion, the trial court specifically found that there is no reason to believe that any aspect of Sale No. 83 will restrict subsistence uses. Moreover, retroactive application of Gambell I is unnecessary to achieve the statute’s goals. Instead, those goals can be fully realized by a declaration that ANILCA evaluations must be published for future Alaska OCS sales and that the evaluations must be prepared for the exploration and development/production plans of all prior sales.
Applying the third factor, the majority finds that no substantial inequitable results would follow from retroactive application. The majority views any financial loss which the appellees may have suffered as a calculated risk on their part because an appeal was pending in this court on Lease No. 57. I do not agree. As noted earlier, appellants did not object to Lease Sale No. 83. *1431Nor did they file any objections to the plans of exploration which were approved. When the oil companies made their expenditures they were relying on a valid court judgment and relying on approved plans of exploration. To hold that those oil companies were taking a “risk” is an unfair characterization of the circumstances. To now apply a new legal principle which is unnecessary to advance the goals of a statute defies the concept of fair play.
III.
I believe this court, as in Gambell /, is not giving the trial court adequate guidance. In footnote 2 of its opinion, the majority states that “[i]n the absence of a fully developed trial record, we cannot now decide whether a permanent injunction should issue in this matter.” Such a statement leads me to ask: What additional facts are necessary? Can the appellants produce any additional evidence that will be relevant to the decision whether a permanent injunction should be issued? I think not. The majority holds that a violation of environmental statute, absent exceptional circumstances, requires that an injunction be issued. The majority finds that no exceptional circumstances exist here and that the Secretary of Interior has violated an environmental statute. Therefore, under the majority’s holding, a permanent injunction must be issued.4
This court should also tell the trial court what will constitute acceptable compliance. That is, will a section 810 analysis performed after a lease sale satisfy the statute’s requirements? This issue is critical because the Department of Interior complied with the requirements of section 810 but did so after the lease sale.5 If a post-sale section 810 analysis will not satisfy the statute’s requirements, the sales of Leases Nos. 57 and 83 must be voided. If a post-sale section 810 analysis is satisfactory, then the majority should clearly state this. Then the trial court, on remand, could determine whether the two studies done after the sale are adequate. Such a holding would not require that post-sale compliance would, always be satisfactory. Under the circumstances of this case, however, allowing post-sale compliance may well be appropriate. In future lease sales, post-sale analysis may not be satisfactory since the Department of Interior now has notice that it must comply with section 810 before such sales.
The majority fails to address this issue. Consequently, the trial court will be forced once again, as it was after Gambell I, to decide a question of law. The losing party will appeal which will result in more delay and uncertainty as to the parties’ rights. Because this issue has not been resolved, we will, in all probability, see Gambell III before Rambo III. I therefore dissent, respectfully.
. The majority promulgates this rule as if it were well settled. That is not the case. If it were this court in Gambell I would have directed the trial court to enter an injunction since it was evident at that time that an environmental statute had been violated and that no unusual circumstances existed.
. The majority fails to specify what irreparable harms appellants will suffer and I fail to find any.
. The three factors are: (1) does the decision establish a new principle of law; (2) will retroactive application of the decision further or retard its application; and (3) is it equitable to apply the decision retroactively. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971).
. The majority states that if it were to decide this issue it would be usurping the function of the district court. I cannot agree that providing the trial court with adequate guidance as to the proper application of the law can ever be characterized as usurping its function.
. Less than six months after Gambell I was decided, the Department of Interior performed a section 810 analysis for Lease No. 57 finding that the sale would not significantly restrict subsistence uses. Less than one month after Gambell I, the Department performed an OCS Environmental Assessment which included a section 810 analysis for Exxon’s, ARCO's, and Amoco’s plans of exploration for tracts in Lease No. 83. In that assessment, the Department of Interior found that the exploration proposals of the three oil companies would not significantly restrict subsistence uses.