Nukapigak et al v. United States Army Corps of Engineers et al

Filing 174

ORDER: denying Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction 149 . Signed by Judge Sharon L. Gleason on 03/12/2014. (AEM, CHAMBERS STAFF)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SAM KUNAKNANA, et al.,
Plaintiffs,
v.
UNITED STATES ARMY CORPS
OF ENGINEERS, et al.,
Defendants,
and
CONOCOPHILLIPS ALASKA, INC., et
al.,
Intervenor-Defendants.

Case No. 3:13-cv-00044-SLG

ORDER DENYING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING
ORDER AND PRELIMINARY INJUNCTION
Before the Court at Docket 149 is a Motion for Temporary Restraining Order and
Preliminary Injunction filed by Plaintiffs Sam Kunaknana et al. Oral argument was not
requested by the parties and was not necessary to the Court’s resolution of the motion.
For the reasons discussed herein, the motion will be denied with respect to the current
construction season, but without prejudice to Plaintiffs’ right to request injunctive relief
with respect to future construction seasons if the Court grants all or part of Plaintiffs’
pending motion for summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of this motion, the Court presents only a brief overview of the key
facts of this case:

The Alpine oil field, located on Alaska’s North Slope, was discovered in 1994. 1 In
1998, the U.S. Army Corps of Engineers (“the Corps”) issued a permit to ARCO Alaska
to construct the Alpine Central Processing Facility and two drill sites, CD-1 and CD-2. 2
In 2001, ARCO’s successor, ConocoPhillips Alaska, Inc. (“CPAI”), announced the
discovery of additional oil to the west of Alpine in the National Petroleum Reserve –
Alaska (“NPRA”). 3 Thereafter, the Bureau of Land Management (“BLM”) initiated a
review process pursuant to the National Environmental Policy Act (“NEPA”) to assess
the environmental impact of CPAI’s proposal to develop five drill sites: CD-3 through
CD-7. 4 That review process culminated with the publication of the final Alpine Satellites
Environmental Impact Statement in 2004. 5
In December 2011, following a lengthy administrative process, the Corps issued
a Record of Decision (“2011 ROD”) granting CPAI a permit under Section 404 of the
Clean Water Act (“CWA”) to fill 58.5 acres of wetlands in order to develop CD-5. 6 CD-5
is located on lands conveyed to Kuukpik Corporation within the NPRA. 7

A portion of

the filling would occur on land within the Colville River Delta, 8 an area “recognized
1

Administrative Record [hereinafter A.R.] 306.

2

A.R. 6768.

3

A.R. 306.

4

A.R. 191, 306.

5

A.R. 191.

6

A.R. 6763.

7

A.R. 288; see also N. Alaska Envt’l Ctr. v. Kempthorne, 457 F.3d 969, 973 (9th Cir. 2006)
(discussing the NPRA generally).
8

A.R. 7490.

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internationally for its biological diversity and richness” and “regionally for its importance
to fish, wildlife, and subsistence resources.” 9
On February 27, 2013 Plaintiffs filed this lawsuit, 10 which challenges the Corps’
issuance of the permit as violating the procedural requirements of NEPA, 42 U.S.C. §§
4321–4327, and Section 404 of the CWA, 33 U.S.C. § 1344. 11 Plaintiffs are residents of
Nuiqsut, an Inupiat Eskimo village located on the Nigliq Channel of the Colville River
Delta, approximately 8.7 miles southwest of the CD-5 project area. 12 In the standing
declarations submitted with their motion for summary judgment, Plaintiffs state that they
conduct subsistence activities in the vicinity of the CD-5 project area. 13 They maintain
that full compliance with the CWA and NEPA may result in a project “that will have less
of an impact on the rich and productive subsistence areas [they] rely on near the CD-5
project.” 14
In the months following the filing of the Complaint, the Court permitted CPAI, the
Arctic Slope Regional Corporation (“ASRC”), the State of Alaska, Kuukpik Corporation,

9

A.R. 3297 (11/23/05 letter from U.S. Fish & Wildlife Service to Corps re CD-5).

10

Docket 1 (Compl.).

11

See Docket 117 at 1–2 ¶¶ 1–2 (Am. Compl.). The Complaint named as defendants the Corps
as well as Corps’ officers Thomas P. Bostick and Christopher D. Lestochi. This Order refers to
all three defendants collectively as “the Corps.”
12

A.R. 451; Docket 117 at 2–5 ¶¶ 5–9 (Am. Compl.); Docket 169 at 2 ¶¶ 2–3 (Isaac Nukapigak
Decl. in Supp. of Kuukpik Opp’n).
13

See Docket 110 (Kunaknana Decl.); Docket 111 (Itta Decl.); Docket 112 (Robert Nukapigak
Decl.); Docket 113 (Ahnupkana Decl.); Docket 114 (Nicholls Decl.).

14

Docket 110 at 3 ¶ 12 (Kunaknana Decl.); Docket 111 at 3 ¶ 11 (Itta Decl.); Docket 112 at 3 ¶
11 (Robert Nukapigak Decl.); Docket 113 at 3 ¶ 11 (Ahnupkana Decl.); Docket 114 at 3 ¶ 11
(Nicholls Decl.).
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and the North Slope Borough to join this action as Intervenor-Defendants in support of
the Corps. 15
On August 14, 2013, the Court issued an Order Establishing Joint Case
Management and a Case Schedule for this case and the related case of Center for
Biological Diversity v. U.S. Army Corps of Engineers, Case No. 3:13-cv-00095-SLG.
The order set a deadline of August 30, 2013 for the Corps to file any augmentation of
the administrative record. 16 The order also established a schedule for the parties to file
summary judgment briefs. 17
The Corps moved for an extension of time to augment the record. 18 Plaintiffs
opposed, stating they had “hoped to fully litigate the case before [CPAI] begins
construction in the first quarter of 2014,” but “[n]ow this goal is jeopardized and Plaintiffs
will likely have to request a preliminary injunction.” 19 The Court granted the Corps’
motion and modified the summary judgment briefing schedule. 20

Pursuant to this

modified schedule, the parties filed cross-motions for summary judgment. 21

These

15

Docket 14 (Order Granting CPAI Mot. for Intervention); Docket 25 (Order Granting ASRC Mot.
for Intervention); Docket 38 (Order Granting State of Alaska Mot. for Intervention); Docket 51
(Order Granting Kuukpik Corp. Mot. for Intervention); Docket 86 at 2 (Order Establishing Joint
Case Mgmt.) (granting intervention to North Slope Borough).

16

Docket 86 at 3 (Order Establishing Joint Case Management & Case Schedule).

17

Docket 86 at 3–4 (Order Establishing Joint Case Management & Case Schedule); see also
D.Ak. LR 16.3(c).

18

Docket 90 (Corps Mot. for Extension of Time).

19

Docket 94 at 3 (Opp’n to Corps Mot. for Extension of Time).

20

Docket 96 (Order Granting Defs. Mot. for Extension of Time & Modifying Case Schedule).

21

Docket 107 (Mot. for Summ. J.); Docket 131 (Corps Opp’n to Mot. for Summ. J.); Docket 127
(CPAI Opp’n to Mot. for Summ. J.); Docket 140 (ASRC Opp’n to Mot. for Summ. J.); Docket 141
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motions became ripe on January 3, 2014, and the Court has taken them under
advisement.
On February 5, 2014, Plaintiffs filed the Motion for Temporary Restraining Order
and Preliminary Injunction. 22 In an affidavit filed with the motion, Plaintiffs’ counsel
avers that on January 28, 2014, he received a telephone call from Plaintiff Martha Itta
informing him that she had heard from the BLM that CPAI had begun construction on
CD-5. 23 Plaintiffs’ counsel contacted CPAI’s counsel, who confirmed that CPAI had
begun construction. 24 In their motion, Plaintiffs assert that CPAI’s construction activities
“pose a threat of irreparable harm to the environment,” and they request “a temporary
restraining order and preliminary injunction to halt construction activities until the Court
has issued an order on . . . Plaintiffs’ motion for summary judgment.” 25
Pursuant to the parties’ apparent stipulation and this Court’s Order, 26 the Corps,
CPAI, and the other Intervenor-Defendants responded to Plaintiffs’ motion on February

(Kuukpik Opp’n to Mot. for Summ. J.); Docket 142 (State of Alaska Opp’n to Mot. for Summ. J.);
Docket 143 (North Slope Borough Opp’n to Mot. for Summ. J.); Docket 146 (Reply re Mot. for
Summ. J.); see also D.Ak. LR 16.3(c)(2) (“Defendant’s principal brief in opposition . . . will be
deemed a cross-motion for summary judgment . . . .”).
22

Docket 149 (Mot.). The plaintiff in the related case of Center for Biological Diversity v. U.S.
Army Corps of Engineers, Case No. 3:13-cv-00095-SLG, has not joined in this motion or filed a
separate motion for a preliminary injunction.

23

Docket 151 at 2 ¶ 2 (Litmans Decl. in Supp. of Mot.).

24

Docket 151 at 2 ¶¶ 3–4 (Litmans Decl. in Supp. of Mot.).

25

Docket 150 at 7 (Mot.).

26

See Docket 157 (Order re Mot.).

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21, 2014, 27 and Plaintiffs replied on February 28, 2014. 28
DISCUSSION
I.

Jurisdiction.
The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
1331.

II.

Preliminary Injunction Standard.
A preliminary injunction is “an extraordinary remedy that may only be awarded

upon a clear showing that the plaintiff is entitled to such relief.” 29 “A plaintiff seeking a
preliminary injunction must establish (1) likely success on the merits; (2) likely
irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips
in the plaintiff’s favor; and (4) that an injunction is in the public interest.” 30 “Under the
‘sliding scale’ approach to preliminary injunctions observed in [the Ninth Circuit], ‘the
elements of the preliminary injunction test are balanced, so that a stronger showing of
one element may offset a weaker showing of another.’” 31

For example, “‘serious

questions going to the merits’ and a hardship balance that tips sharply toward the
plaintiff can support issuance of an injunction, assuming the other two elements . . . are

27

Docket 160 (CPAI Opp’n); Docket 164 (ASRC Opp’n); Docket 166 (Corps Opp’n); Docket 167
(Kuukpik Opp’n); Docket 168 (State of Alaska Opp’n); Docket 170 (North Slope Borough Opp’n).

28

Docket 172 (Reply).

29

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).

30

Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) (per curiam) (citing Winter, 555 U.S.
at 20).
31

Id. (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)).

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also met.” 32 However, a plaintiff “must establish that irreparable harm is likely, not just
possible,” regardless of the strength of plaintiff’s showing on the other three elements. 33
When applying the four-part test for a preliminary injunction, a court may
consider inadmissible evidence, such as hearsay, “when to do so serves the purpose of
preventing irreparable harm before trial.” 34 Additionally, the court has broad discretion
to “fashion a remedy depending upon the necessities of the particular case.” 35
III.

Analysis.
A. Likelihood of Success on the Merits.
With respect to the first prong of the preliminary injunction test, and solely for

purposes of this motion, the Court assumes Plaintiffs have demonstrated that they are
likely to succeed on the merits of one or more of their claims under the CWA and/or
NEPA.
B. Likelihood of Irreparable Harm.
With respect to the second prong of the preliminary injunction test, it is
questionable whether Plaintiffs have shown they are likely to suffer irreparable harm in
the absence of the preliminary relief they seek. Plaintiffs rely largely on their standing

32

Alliance for the Wild Rockies, 632 F.3d at 1132.

33

Id. at 1131 (emphasis in original).

34

Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009) (quoting Flynt Distrib. Co. v.
Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984)).

35

See Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1022 (9th Cir. 2009) (quoting United States
v. Odessa Union Warehouse Co-op, 833 F.2d 172, 175 (9th Cir. 1987)).

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declarations filed in October 2013 to demonstrate irreparable harm, 36 but these
declarations do not indicate the extent to which the current construction activities are
harming or will harm Plaintiffs’ subsistence interests. 37

Additionally, the fact that

Plaintiffs waited to file their motion until two months after CPAI began its construction
season militates against a finding of irreparable harm. 38

Nonetheless, solely for

purposes of this motion, the Court will assume Plaintiffs have met their burden of
showing that their subsistence interests are likely to be irreparably harmed as a result of
the construction activities taking place this winter and early spring at CD-5. CPAI is
presently installing bridge and sheet pilings and blasting to open the gravel mine site, 39
activities that could damage the environment in ways that irreparably harm Plaintiffs’
subsistence interests. 40

36

See Docket 150 at 12 (Mot.) (“[T]he impacts to Nuiqsut Plaintiffs include impacts to their
subsistence way of life and enjoyment that are being irreparably harmed from Conoco’s
construction activities, as set forth in the Nuiqsut Plaintiffs’ standing declarations.”).
37

Plaintiffs have not provided the Court with any firsthand information regarding how CPAI’s
current construction activities are impacting them.

38

See Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir. 1985)
(“Plaintiff’s long delay before seeking a preliminary injunction implies a lack of urgency and
irreparable harm.”); Protect Our Cmtys. Found. v. U.S. Dep’t of Agric., 845 F. Supp. 2d 1102,
1113–14 (S.D. Cal. 2012) (holding plaintiffs failed to demonstrate irreparable harm in part
because they waited to file their motion for preliminary injunction until the day construction
began, despite advance knowledge of when project was scheduled to commence).

39

Docket 161 at 4 ¶¶ 8–9 (Brodie Decl. in Supp. of CPAI Opp’n).

40

See Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 545 (1987) (“Environmental
injury, by its nature, can seldom be adequately remedied by money damages and is often . . .
irreparable.”).
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C. Balance of the Equities and Public Interest.
A court cannot “abandon a balance of harms analysis just because a potential
environmental injury is at issue.” 41 Rather, this Court “must weigh the environmental
injuries invoked by [Plaintiffs] against the other injuries identified by the [Corps and
Intervenor-Defendants].” 42 Here, even assuming Plaintiffs have shown likely success
on the merits and likely irreparable harm for purposes of this motion, the balance of the
equities tips so far in favor of CPAI and the other Intervenor-Defendants at this time that
a preliminary injunction halting this season’s construction activities is not warranted, nor
would it be in the public interest. 43
As Plaintiffs appear to recognize in their motion, even prior to the issuance of the
2011 ROD, CPAI had announced its intent to begin construction at CD-5 during the
2013–2014 winter. 44 Moreover, in May 2012 and August 2013, CPAI held community
meetings in Nuiqsut and indicated its intent to begin construction during the 2013–2014
winter. 45

According to Lisa Pekich, Director of Village Outreach for CPAI, Plaintiff

41

Lands Council v. McNair, 537 F.3d 981, 1005 (9th Cir. 2008) (en banc), overruled in part on
other grounds by Am. Trucking Ass’ns, Inc. v. City of L.A., 559 F.3d 1046 (9th Cir. 2009).
42

See id. at 1004; see also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009)
(“[T]he district court has a ‘duty . . . to balance the interests of all parties and weigh the damage
to each.’” (quoting L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1203
(9th Cir. 1980))).

43

Cf. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 23–24 (2008) (declining to address
plaintiffs’ likelihood of success on the merits and holding “even if plaintiffs have shown
irreparable injury,” that injury is outweighed by defendant’s and the public’s interests).
44

See Docket 150 at 8–9 n.14 (Mot.) (citing A.R. 5867, a 10/19/11 letter from CPAI to the
Corps, as “indicating Conoco will construct the gravel satellite pad, gravel road, bridge piers and
substructure, and possibly the vertical support members for the pipeline in the first quarter of
2014”).

45

Docket 163 at 2–3 ¶¶ 4–5 (Pekich Decl. in Supp. of CPAI Opp’n).

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Clarence Ahnupkana attended the May 2012 meeting, and Plaintiffs Sam Kunaknana,
Martha Itta, and John Nicholls attended the August 2013 meeting. 46 In their briefing,
Plaintiffs do not dispute that they attended these meetings.
In September 2013, in opposition to the Corps’ motion for an extension of time to
augment the record, Plaintiffs demonstrated their awareness of CPAI’s intent to begin
construction in the first quarter of 2014. 47 But Plaintiffs did not request a preliminary
injunction at that time. In the months that followed, CPAI continued publicly to take
steps to begin construction during the 2013–2014 winter. 48

Then, when the

construction season was well underway, Plaintiffs filed their motion for a preliminary
injunction.

In doing so, it appears CPAI is correct that Plaintiffs waited “until the

moment it would inflict the maximum possible damage and disruption to [CPAI].”49
Because the 2014 ice road season is expected to last for only 13–15 weeks,
CPAI estimates that stopping work for as little as one week might cause it not to reach
its construction milestones for the 2014 season, which could necessitate an additional
winter season of work costing an estimated $105 million. 50 The Court agrees with CPAI

46

Docket 163 at 2–3 ¶¶ 4–5 (Pekich Decl. in Supp. of CPAI Opp’n).

47

Docket 94 at 3 (Opp’n to Corps Mot. for Extension of Time) (stating on September 3, 2013
that Plaintiffs had “hoped to fully litigate the case before [CPAI] begins construction in the first
quarter of 2014,” but “[n]ow this goal is jeopardized and Plaintiffs will likely have to request a
preliminary injunction”).
48

Docket 163 at 3 ¶¶ 6–9 (Pekich Decl. in Supp. of CPAI Opp’n) (discussing 11/6/13 meeting
with Kuukpik Subsistence Oversight Panel—at which Plaintiff Sam Kunaknana was present—
11/7/13 CD-5 job fair in Nuiqsut, 12/2/13 Facebook announcement, and 1/14/14 kickoff meeting
in Nuiqsut).
49

See Docket 160 at 5 (CPAI Opp’n).

50

Docket 161 at 6–10 ¶¶ 12–13, 20 (Brodie Decl. in Supp. of CPAI Opp’n). Plaintiffs assert that
“[e]ven if an injunction would cause Conoco some financial hardship, economic harm is not
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that “the cost of unplanned demobilization, staging, and remobilization of material that
could be installed in 2014 is wasteful.”51
In addition to the harm to CPAI, it appears the other Intervenor-Defendants would
likely be adversely affected if CPAI were forced to stop work in the middle of this
construction season. 52

For example, residents from various North Slope Borough

communities, including Kuukpik shareholders who live in Nuiqsut, could lose their jobs
and income needed to buy subsistence equipment. 53 Additionally, the Corps’ interest in
“the orderly administration of [its] environmental permitting process” could be harmed. 54
The disruption a mid-season work stoppage would cause could even result in
more environmental damage than if CPAI continued work through the end of this
construction season. 55 Under these circumstances, and given the Plaintiffs’ long delay

irreparable and, as a matter of law, does not override the threat of likely irreparable
environmental harm.” Docket 150 at 15 (Mot.). However, the Ninth Circuit has stated that
“[e]conomic harm may indeed be a factor in considering the balance of equitable interests.”
Earth Island Inst. v. Carlton, 626 F.3d 462, 475 (9th Cir. 2010) (on appeal of denial of
preliminary injunction to halt post-wildfire logging in a national forest, holding district court did
not err in determining “the economic stakes, in combination with the safety concerns and
reforestation efforts, outweighed any harm to environmental interests”).
51

Docket 161 at 9 ¶ 17 (Brodie Decl. in Supp. of CPAI Opp’n).

52

See Docket 165 (Imm Decl. in Supp. of ASRC Opp’n); Docket 168 (State of Alaska Opp’n);
Docket 169 (Isaac Nukapigak Decl. in Supp. of Kuukpik Opp’n); Docket 170-1 (Brower Decl. in
Supp. of North Slope Borough Opp’n)

53

Docket 169 at 7 ¶ 14 (Isaac Nukapigak Decl. in Supp. of Kuukpik Opp’n); Docket 170-1 at 3–4
¶ 13 (Brower Decl. in Supp. of North Slope Borough Opp’n). More broadly, stopping work in the
middle of the current construction season would threaten the jobs of up to 800 individuals
currently working on the CD-5 project. See Docket 161 at 5 ¶ 10 (Brodie Decl. in Supp. of CPAI
Opp’n).
54

See Docket 166 at 13 (Corps Opp’n).

55

See Docket 161 at 6 ¶ 12 (Brodie Decl. in Supp. of CPAI Opp’n) (noting “incomplete bridge
and road installations” could result in “incomplete protection against erosion during breakup”);
Docket 165 at 2 ¶ 4 (Imm Decl. in Supp. of ASRC Opp’n) (explaining how preliminary injunction
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in filing for a preliminary injunction despite their knowledge that construction on CD-5
was set to begin during the 2013–2014 winter, the issuance of a preliminary injunction
at this time would be clearly inequitable and not in the public interest. 56
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Temporary Restraining Order and
Preliminary Injunction, at Docket 149, is DENIED. 57
DATED this 12th day of March, 2014, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

“would result in serious environmental risks related to the ASRC Gravel Site”); Docket 169 at 6
¶ 12 (Isaac Nukapigak Decl. in Supp. of Kuukpik Opp’n) (“[H]alting construction now, in the
middle of the season, would just extend the time it would take to complete the project . . . and
thereby create more and greater disruptions to the environment and to our subsistence way of
life, than if the project is allowed to proceed and the work scheduled for this winter completed.”).
56

In their reply, Plaintiffs assert they filed their motion “almost immediately after learning that
Conoco had begun construction,” and “[i]t would have been improper to bring a motion for
injunctive relief earlier because any alleged harms would have been speculative and any threats
would not have been actual or imminent.” Docket 172 at 10 (Reply). However, Plaintiffs were
not required to wait until construction began to file their motion, particularly where for over two
years CPAI consistently declared its intention to begin construction on CD-5 during the 2013–
2014 winter. See W. Watersheds Project v. Salazar, 692 F.3d 921, 923 (9th Cir. 2012) (holding
in balancing the equities, the district court “properly exercised its discretion in weighing
Appellant’s delay in seeking a preliminary injunction until after construction began . . . and some
$712 million had been expended”); Protect Our Cmtys. Found. v. U.S. Dep’t of Agric., 845 F.
Supp. 2d 1102, 1113 (S.D. Cal. 2012) (where plaintiffs had four months advance notice of date
construction would begin, holding plaintiffs “were not required to wait until construction . . .
began to file the Motion for Preliminary Injunction”); cf. Ohio Forestry Ass’n, Inc. v. Sierra Club,
523 U.S. 726, 737 (1998) (noting that because NEPA is a procedural statute, “a person with
standing who is injured by a failure to comply with the NEPA procedure may complain of that
failure at the time the failure takes place, for the claim can never get riper”).

57

This denial is without prejudice to Plaintiffs’ right to request injunctive relief with respect to
future construction seasons if the Court grants all or part of Plaintiffs’ pending motion for
summary judgment.

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