North Slope Borough et al v. Minerals Management Service et al

Filing 59

Order on Motion for Summary Judgment

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

NORTH SLOPE BOROUGH and
ALASKA ESKIMO WHALING
COMMISSION,
Plaintiffs,

Case No. 3:07-cv-0045-RRB

vs.
MINERALS MANAGEMENT SERVICE;
REJANE ‘JOHNNIE’ BURTON, in
her official capacity as
Director, Minerals Management
Service; UNITED STATES
DEPARTMENT OF THE INTERIOR;
and DIRK KEMPTHORNE, in his
official capacity as
Secretary, United States
Department of the Interior,

ORDER DENYING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT
AND DISMISSING ACTION

Defendants.

I.

INTRODUCTION
Before the Court are Plaintiffs North Slope Borough

(“NSB”)

and

the

Alaska

Eskimo

Whaling

Commission

(“AEWC”)

(collectively “Plaintiffs”) with a Motion for Summary Judgment and
Injunctive Relief at Docket 49.
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Plaintiffs ask the Court to

rescind certain oil and gas leases issued by Defendant Minerals
Management Services (“MMS”) in 2007 which are located in the
Beaufort Sea and referred to more specifically as Lease Sale 202.
Plaintiffs also seek an injunction against issuance of similar
leases until MMS prepares a new or supplemental Environmental
Impact Statement (“EIS”) pursuant to the National Environmental
Policy Act (“NEPA”).1
Defendants MMS, MMS Director Randall B. Luthi in his
official capacity, U.S. Department of Interior (“DOI”), and DOI
Secretary Dirk Kempthorne in his official capacity (collectively
“Defendants”), oppose at Docket 55 and argue that supplementation
of the existing 2003 EIS is unnecessary because no significant new
information or circumstances relevant to Lease Sale 202 have been
identified

since

preparation

of

the

2003

multi-sale

EIS.

Defendants ask that this case be dismissed.
II.

BACKGROUND
In 2003, MMS prepared a four-volume EIS to analyze the

potential environmental impact of three proposed lease sales in the
Beaufort Sea which were scheduled to occur in 2003 (Lease Sale
186), in 2005 (Lease Sale 195), and in 2007 (Lease Sale 202).
Lease Sales 186 and 195 occurred as scheduled with 34 leases sold
in 2003 and 117 leases sold in 2005.

1

42 U.S.C. § 4231 et seq.

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The leases available in 2007

were simply blocks that, for whatever reason, had not been sold in
the two earlier sales.
Because of the time lag between the 2003 EIS and the
later lease sales in 2005 and 2007, MMS planned to prepare an
environmental assessment (“EA”) for Lease Sales 195 and 202 to
determine whether new information or circumstances arising since
the 2003 EIS would require a Supplemental EIS.

On October 28,

2005, MMS published a public notice of intent to prepare an EA for
proposed Lease Sale 202.2

Plaintiff AEWC submitted comments to MMS

during the 30-day public comment period. The Lease Sale 202 EA was
completed in August of 2006.
On September 6, 2006, MMS published a public notice
announcing its decision, based on the Lease Sale 202 EA, to issue
a Finding of No New Significant Impacts (“FONNSI”) for proposed
Lease Sale 202.3

The notice provided a 30-day comment period.

Plaintiffs AEWC and NSB submitted comments highlighting concerns
about increased industry interest in the Beaufort Sea, the singlefield development scenarios for Lease Sale 202, impacts from
seismic testing, and potentially significant cumulative impacts
from seismic testing and climate change on subsistence and polar

2

70 Fed. Reg. 62139 (Oct. 28, 2005).

3

71 Fed. Reg. 52574 (Sept. 6, 2006).

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bears.

Bidding was set to open on March 28, 2007.

Subsequently,

the date was rescheduled for April 18, 2007.
On March 29, 2007, Plaintiffs filed a Complaint seeking
to overturn the MMS’s decision not to supplement the 2003 EIS,
arguing that it was arbitrary and capricious and violated NEPA.4
On April 12, 2007, this Court denied Plaintiffs’ Motion for
Preliminary Injunction.5

Thereafter, Lease Sale 202 was held.

Plaintiffs now seek to have the sales in question rescinded and an
injunction imposed against further sales until Defendants prepare
a Supplemental EIS.
III. LEGAL STANDARDS
A.

Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides

that summary judgment should be granted if there is no genuine
dispute as to material facts and if the moving party is entitled to
judgment as a matter of law.

The moving party has the burden of

showing that there is no genuine dispute as to material fact.6

The

moving party need not present evidence; it need only point out the

4

See Docket 1.

5

See Docket 25.

6

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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lack of any genuine dispute as to material fact.7

Once the moving

party has met this burden, the nonmoving party must set forth
evidence of specific facts showing the existence of a genuine issue
for trial.8

All evidence presented by the non-movant must be

believed for purposes of summary judgment, and all justifiable
inferences must be drawn in favor of the non-movant.9

However, the

nonmoving party may not rest upon mere allegations or denials, but
must show that there is sufficient evidence supporting the claimed
factual dispute to require a fact-finder to resolve the parties’
differing versions of the truth at trial.10
B.

NEPA
NEPA mandates the preparation of an EIS for any major

federal action “significantly affecting the quality of the human
environment.”11 The twin objectives of NEPA are to (1) require the
federal

agency

to

“consider

every

significant

aspect

of

the

environmental impact of a proposed action,” and to (2) ensure that
the agency “inform[s] the public that it has indeed considered

7

Id. at 323-325.

8

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49

(1986).
9

Id. at 255.

10

Id. at 248-49.

11

42 U.S.C. § 4332(C).

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environmental concerns in its decisionmaking process.”12 The agency,
however, is not required to elevate environmental concerns over
other appropriate considerations.13
A threshold question in a NEPA case, therefore, is
whether

a

proposed

project

will

“significantly

affect”

the

environment and trigger the requirement for preparing an EIS.14 An
agency may prepare an environmental assessment (“EA”) to determine
whether

the

environmental

impact

of

a

proposed

action

significant enough to warrant preparation of an EIS.15

is

If the

agency determines that an EIS is not necessary, it will issue a
Finding of No Significant Impact (“FONSI”).16

“Because the very

important decision whether to prepare an EIS is based solely on the
EA, the EA is fundamental to the decision-making process.”17
Where, as here, an agency has previously prepared an EIS,
it may prepare an EA to determine whether new information or
circumstances not originally accounted for in the EIS require

12

Baltimore Gas & Elec. Co. v. Natural Res. Def. Council,
Inc., 462 U.S. 87, 97 (1983)(internal citations omitted).
13

Id.

14

Blue Mountains Biodiversity Project v. Blackwood, 161
F.3d 1208, 1212 (9th Cir. 1998) (citing 42 U.S.C. § 4332(2)(C)).
15

Id. (citing 40 C.F.R. § 1508.9).

16

Metcalf v. Daley, 214 F.3d 1135, 1143 (9th Cir. 2000)
(citing 40 C.F.R. § 1508.9).
17

Id.

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preparation of an updated EIS.

“The new circumstance must present

a seriously different picture of the environmental impact of the
proposed project from what was previously envisioned.”18 Based upon
the

EA,

the

alternatively,

agency
conclude

may

prepare

that

there

a
are

Supplemental
no

EIS

or,

“significant

new

circumstances or information relevant to environmental concerns and
bearing on the proposed action or its impacts.” 19

An agency need

not “release and circulate a formal supplemental EIS, or a formal
document explaining why the agency believes a supplemental EIS is
unnecessary, every time some new information comes to light.
Rather, a reasonableness standard governs.” 20
C.

Judicial Review of Agency Action
Judicial review of administrative actions under NEPA is

governed by the Administrative Procedure Act (“APA”).21 Under the
APA, the Court must determine whether the agency action was
“arbitrary and capricious, an abuse of discretion, or otherwise not
in accordance with law.”22

An agency decision is arbitrary and

18

See Or. Natural Res. Council v. Devlin, 776 F. Supp.
1440, 1449 (D. Or. 1991)(citing Sierra Club v. Froehlke, 816 F.2d
205, 210 (5th Cir. 1987)).
19

40 C.F.R. § 1502.9(c)(1).

20

Friends of River v. Fed. Energy Regulatory Comm’n, 720
F.2d 93, 109 (D.C. Cir. 1983).
21

5 U.S.C. §§ 701-706.

22

5 U.S.C. § 706(2)(A).

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capricious if the agency has “relied on factors which Congress has
not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or is
so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.”23

However, “[t]he

standard is narrow and the reviewing court may not substitute its
judgment for that of the agency.”24
The decision of whether to supplement an EIS is “a
classic example of a factual dispute the resolution of which
implicates substantial agency expertise.”25 NEPA requires that the
agency take a “hard look” at the new information to determine
whether supplementation of the EIS is necessary.26

However, where

“a court reviews an agency action involving primarily issues of
fact, and where analysis of the relevant documents requires a high

23

Pac. Coast Fed'n of Fishermen's Ass'ns, Inc. v. Nat'l
Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001)
(quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)).
24

Envtl. Def. Ctr. v. EPA, 344 F.3d 832, 858 n.36 (9th Cir.
2003) (citing Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378
(1989)).
25

Headwaters, Inc. v. BLM, 914 F.2d 1174, 1177 (9th Cir.
1990) (citing Marsh, 490 U.S. at 394).
26

Id.

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level of technical expertise, [the court] must defer to the
informed discretion of the responsible federal agencies.”27
IV.

DISCUSSION
Plaintiffs argue that new information and circumstances

have arisen since he 2003 multi-sale EIS was released and that
MMS’s decision not to prepare a Supplemental EIS is arbitrary and
capricious.28

Plaintiffs urge the Court to invalidate Lease Sale

202 and require MMS to prepare a Supplemental EIS.

Plaintiffs

contend that if Lease Sale 202 is permitted to stand, Plaintiffs’
subsistence

activities

will

suffer

irreparable

harm

from

the

cumulative impacts of seismic testing, exploratory activities,
current offshore and onshore oil and gas development, and global
climate change.
Defendants assert that MMS was not required to prepare a
Supplemental EIS because the 2003 multi-sale EIS was based on
generous development scenarios and the Lease Sale 202 EA did not
present a seriously different picture of environmental impacts from
what was previously envisioned in the 2003 EIS, i.e., the impacts
identified by Plaintiffs were not new.

27

City of Sausalito v. O’Neill, 386 F.3d 1186, 1206 (9th
cir. 2004) (citing, inter al., Marsh, 490 U.S. at 377-78).
28

Plaintiffs even go so far as to suggest subterfuge and
fabrication on the part of Defendants, which the Court does not
find to be the case.
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It is worth noting that MMS exceeded the documentary
requirements for determining whether to supplement the 2003 EIS.29
MMS could have made this determination using much more informal
documentation.30

The Court will not hold MMS to a higher standard

simply because it prepared an EA to access whether the 2003 EIS
required supplementation.31

Penalizing MMS for conducting a more-

thorough-than-necessary review would discourage the use of an EA to
determine whether to supplement an EIS – a result which Plaintiffs
cannot seriously intend.
After

reviewing

the

administrative

record

and

the

parties’ respective briefs with accompanying exhibits, the Court
cannot conclude that MMS failed to take a “hard look” at the
concerns raised by Plaintiffs prior to concluding that preparation
of a Supplemental EIS was not necessary.

In the Lease Sale 202 EA,

29

The parties are in agreement that MMS was not required to
use the vehicle of an EA to determine whether a Supplemental EIS
was in order. See Docket 55 at 8; Docket 57 at 24.
30

See Marsh, 490 U.S. at 379; Price Road Neighborhood Ass’n
v. U.S. Dept. of Transp., 113 F.3d 1505, 1510 (9th Cir. 1997);
Friends of the Bow v. Thompson, 124 F.3d 1210, 1218-19 (9th Cir.
1997)).
31

Plaintiffs’ argument that MMS’s conclusion is arbitrary
because issuance of a “FONNSI” is not an available option under
NEPA is unavailing. While the acronym “FONNSI” is not a codified
term of art under NEPA, it is indistinguishable from the standard
for determining whether to supplement an EIS: “Agencies: (1) Shall
prepare supplements to either draft or final environmental impact
statements if: . . . (ii) There are significant new circumstances
or information relevant to environmental concerns and bearing on
the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1).
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MMS carefully reviewed the increase in oil prices, the zonal
distribution of the leases, and the cumulative impacts of climate
change on subsistence. MMS concluded that this information did not
present a seriously different picture of the environmental impact
of Lease Sale 202 because the 2003 EIS was already based on
generous development scenarios and because the rate and impact of
climate change are largely independent of whether Lease Sale 202 is
permitted to stand.
Nor can the Court conclude that MMS’s “Finding of No New
Significant Impacts” was arbitrary and capricious.

MMS provided

adequate explanation for its conclusion that any new information
about the impact on polar bears, fish, eiders, or bowhead whales,
or from seismic testing and invasive species, was either not
significant or had already considered in the 2003 EIS.

Deference

must be given to the experience and expertise of this agency in
light of the Supreme Court’s instruction that the Court is not to
substitute its own judgment for that of the agency.32
Congress has authorized the statutory framework and
appropriate safeguards for the subject lease sales.

Given the

safeguards provided by the Outer Continental Shelf Leasing Act
(“OCSLA”),33 and the fact that notice must be provided pursuant to
32

Marsh, 490 U.S. at 378; Envtl. Def. Ctr. v. EPA, 344 F.3d
832, 858 n.36 (9th Cir. 2003).
33

43 U.S.C. § 1340.

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regulations34

OCLSA

obtained

pursuant

and
to

Incidental

the

Marina

Harassment

Mammal

Authorizations

Protection

Act35

and

supporting regulations36 before seismic testing is conducted, it is
unlikely that any significant impact beyond those identified in the
2003 EIS would result from development of the aforesaid leases.
Moreover, the purpose of NEPA is to ensure that environmental
considerations are taken into account, but not necessarily elevated
over other appropriate considerations.37

By asking this Court to

overturn Lease Sale 202, Plaintiffs attempt to accomplish a result
which should be obtained through legislative venues.
As the Court previously found, the balance of hardships
weighs in favor of Defendants who have invested significant time
and expense in preparing for the scheduled sales.38
public

interest

scheduled sales.

in

energy

development

favors

Moreover, the
upholding

the

To conclude otherwise would require the Court to

engage in multiple levels of speculation regarding climate change,
animal migration, and economics, and to conclude that existing

34

30 C.F.R. § 250.208.

35

16 U.S.C. § 1361.

36

50 C.F.R. 216.107(b).

37

Baltimore Gas & Elec. Co. v. Natural Res. Def. Council,
Inc., 462 U.S. 87, 97 (1983).
38

Docket 25 at 12.

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federal regulations would not effectively address Plaintiffs’
environmental concerns.

This the Court cannot do.

V. CONCLUSION
For the foregoing reason, Plaintiffs’ motion for summary
judgment and injunctive relief is DENIED. Defendant’s motion to
dismiss is GRANTED.
IT IS SO ORDERED.
ENTERED this 8th day of January, 2008.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

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