Center for Biological Diversity v. United States Army Corps of Engineers et al
Filing
46
ORDER: re Motions for Summary Judgment. This matter is DISMISSED with prejudice because Plaintiff Center for Biological Diversity lacks Article III standing. Signed by Judge Sharon L. Gleason on 05/27/2014. (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.
CENTER FOR BIOLOGICAL
DIVERSITY,
Plaintiff,
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
Case No. 3:13-cv-00095-SLG
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
Plaintiffs Sam Kunaknana, et al. (“Kunaknana Plaintiffs”) and the Center for
Biological Diversity (“CBD”) filed separate lawsuits challenging Defendant U.S. Army
Corps of Engineers’1 decision to issue a permit to ConocoPhillips Alaska, Inc. to fill
certain wetlands in the National Petroleum Reserve – Alaska (“NPR-A”) in order to
develop a drill site known as Colville Delta 5 (“CD-5”). 2 In their complaints, Plaintiffs
assert that the Corps’ issuance of the permit violated the National Environmental Policy
Act (“NEPA”), 42 U.S.C. §§ 4321–4327, and Section 404 of the Clean Water Act
(“CWA”), 33 U.S.C. § 1344. 3 ConocoPhillips, the Arctic Slope Regional Corporation
(“ASRC”), the State of Alaska, the North Slope Borough, and Kuukpik Corporation have
joined both actions as Intervenor-Defendants in support of the Corps. 4 Kuukpik is the
1
Both actions 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.”
2
Docket 106 at 4, Case No. 3:13-cv-00044 (CBD Mot. for Summ. J.); Docket 107 at 2, Case No.
3:13-cv-00044 (Kunaknana Pls.’ Mot. for Summ. J.).
3
See Docket 117 at 1–2 ¶¶ 1–2, Case No. 3:13-cv-00044 (Kunaknana Pls.’ First Am. Compl.);
Docket 1 at 2 ¶ 1, Case No. 3:13-cv-00095 (CBD Compl.). In its complaint, CBD also asserted
that the Corps’ issuance of the permit violated the Endangered Species Act (“ESA”). Docket 1
at 30–34 ¶¶ 141–60, Case No. 3:13-cv-00095. However, CBD did not raise any ESA claims in
its motion for summary judgment. The Court need not reach the ESA issue because it
concludes that CBD lacks standing. See infra Discussion Part I.B.i. And in any event, CBD has
waived its ESA claims. See Docket 131 at 42–43, Case No. 3:13-cv-00044 (Corps Opp’n to
Mot. for Summ. J.) (citing, e.g., City of Santa Clarita v. U.S. Dep’t of Interior, No. CV 0200697DT, 2006 WL 4743970, at *11 (C.D. Cal. Jan. 30, 2006)).
4
In Kunaknana, et al. v. U.S. Army Corps of Engineers, et al., Case No. 3:13-cv-00044-SLG,
see Docket 14 (Order Granting ConocoPhillips 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 Mot. for Intervention), and Docket 86 at 2 (Order
Establishing Joint Case Mgt.) (granting intervention to North Slope Borough). In Center for
Biological Diversity v. U.S. Army Corps of Engineers, et al., Case No. 3:13-cv-00095-SLG, see
Docket 22 (Order Granting ConocoPhillips Mot. for Intervention), Docket 29 at 2 (Order
Establishing Joint Case Mgt.) (granting intervention to State of Alaska, ASRC, North Slope
Borough, and Kuukpik).
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Alaska Native Claims Settlement Act village corporation for the Inupiat Eskimo Village of
Nuiqsut. 5
Challenges to agency decisions brought in this federal district court are resolved
through summary judgment motions. 6 Pursuant to the Court’s Order Establishing Joint
Case Management and a Case Schedule, the summary judgment motions in the two
lawsuits have been jointly managed. 7 Presently before the Court are CBD’s and the
Kunaknana Plaintiffs’ Motions for Summary Judgment. 8 The Corps and IntervenorDefendants have each filed a single response in opposition to both Plaintiffs’ motions, 9
which also serves as a cross-motion for summary judgment, 10 and Plaintiffs have
5
Docket 47 at 2 ¶ 2 (Chinn Decl. in Supp. of Kuukpik Mot. to Intervene).
6
See D.Ak. LR 16.3(c); see also City & Cnty. of S.F. v. United States, 130 F.3d 873, 877 (9th
Cir. 1997) (“‘[T]he function of the district court is to determine whether or not as a matter of law
the evidence in the administrative record permitted the agency to make the decision it did.’ In
reviewing an administrative agency decision, ‘summary judgment is an appropriate mechanism
for deciding the legal question of whether the agency could reasonably have found the facts as
it did.’” (citation omitted) (quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir.
1985))).
7
Docket 86, Case No. 3:13-cv-00044-SLG (Order Establishing Joint Case Mgt.). The order
directed the parties in both cases to filed their summary judgment briefs and replies in
Kunaknana, et al. v. U.S. Army Corps of Engineers, et al., Case No. 3:13-cv-00044-SLG.
Accordingly, unless otherwise indicated, all subsequent docket references in this Order are to
Case No. 3:13-cv-00044-SLG.
8
Docket 106 (CBD Mot. for Summ. J.); Docket 107 (Kunaknana Pls.’ Mot. for Summ. J.).
9
Docket 131 (Corps Opp’n); Docket 129 (ConocoPhillips Opp’n); Docket 140 (ASRC Opp’n);
Docket 141 (Kuukpik Opp’n); Docket 142 (State of Alaska Opp’n); Docket 143 (North Slope
Borough Opp’n). ConocoPhillips also filed a copy of its opposition at Docket 127. However, in
this Order the Court references only Docket 129 when discussing ConocoPhillips’s opposition.
Additionally, the Corps and ConocoPhillips later filed Notices of Errata at Dockets 135 and 144,
respectively, that corrected certain citations in their briefs.
10
See D.Ak. LR 16.3(c)(2) (“Defendant’s principal brief in opposition . . . will be deemed a crossmotion for summary judgment . . . .”).
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replied. 11 No party requested oral argument, and oral argument was not necessary to
the Court’s decision.
For the reasons discussed herein, CBD’s action will be dismissed because CBD
lacks standing.
The Kunaknana Plaintiffs’ Motion for Summary Judgment will be
granted on their NEPA claim to the extent they assert that the Corps failed to provide a
reasoned explanation in the record for its decision not to conduct a supplemental NEPA
analysis. This Order does not determine whether a supplemental NEPA analysis is
required, nor does it determine the appropriate remedy for the Corps’ NEPA violation.
This Order also does not resolve the Kunaknana Plaintiffs’ CWA claim. Instead, the
Court requests further briefing from the parties as to how this case should proceed at
this juncture.
STATUTORY FRAMEWORK, FACTUAL BACKGROUND,
AND PROCEDURAL HISTORY
I.
Statutory and Regulatory Framework.
A. Section 404 of the Clean Water Act.
Congress enacted the CWA “to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 12 To achieve this goal, the CWA prohibits the
11
Docket 146 (Kunaknana Pls.’ Reply); Docket 147 (CBD Reply). Also before the Court is a
Consolidated Motion to Strike Plaintiffs’ Extra-Record Summary Judgment Exhibits filed by
ConocoPhillips. Docket 126 (ConocoPhillips Mot. to Strike). That motion is discussed in
Discussion Part IV.B.ii.a, infra.
12
33 U.S.C. § 1251(a).
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discharge of any pollutant into navigable waters unless authorized by a permit. 13
“Navigable waters” includes certain wetlands, 14 such as the area in dispute here.
Section 404 of the CWA governs permitting for the discharge of dredged or fill
material into navigable waters. 15 The Corps is responsible for issuing Section 404
permits, and it does so according to EPA’s Section 404(b)(1) Guidelines. 16
Those
guidelines state in relevant part: “[N]o discharge of dredged or fill material shall be
permitted if there is a practicable alternative to the proposed discharge which would
have less adverse impact on the aquatic ecosystem, so long as the alternative does not
have other significant adverse environmental consequences.” 17 This provision requires
the Corps to select what the parties in this controversy refer to as the Least
Environmentally Damaging Practicable Alternative, or “LEDPA.”
13
See 33 U.S.C. § 1311(a).
14
The CWA defines “navigable waters” as “the waters of the United States.” 33 U.S.C. §
1362(7). Corps and EPA regulations define “waters of the United States” to include wetlands.
See 33 C.F.R. § 328.3(a) (Corps regulation); 33 C.F.R. § 230.3(s) (EPA regulation). The Ninth
Circuit has clarified that the CWA only covers wetlands adjacent to or having a “significant
nexus” to navigable waters. See N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 1000
(9th Cir. 2007) (citing Rapanos v. United States, 547 U.S. 715 (2006) (Kennedy, J.,
concurring)).
15
See Clean Water Act § 404, 33 U.S.C. § 1344.
16
See 33 C.F.R. § 320.4(a)(1) (“For activities involving 404 discharges, a permit will be denied if
the discharge that would be authorized by such permit would not comply with the [EPA’s]
404(b)(1) guidelines.”).
17
40 C.F.R. § 230.10(a). “An alternative is practicable if it is available and capable of being
done after taking into consideration cost, existing technology, and logistics in light of overall
project purposes.” Id. § 230.10(a)(2).
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B. National Environmental Policy Act.
NEPA declares “a national policy . . . to promote efforts which will prevent or
eliminate damage to the environment.” 18 It is a procedural statute, designed to achieve
its stated policy “by focusing Government and public attention on the environmental
effects of proposed agency action,” thereby ensuring “that the agency will not act on
incomplete information, only to regret its decision after it is too late to correct,” and that
“the public and other government agencies [can] react to the effects of a proposed
action at a meaningful time.” 19
Regulations promulgated by the Council on
Environmental Quality (“CEQ”) provide guidance on the application of NEPA.
NEPA requires federal agencies to prepare an environmental impact statement
(“EIS”) for all “major Federal actions significantly affecting the quality of the human
environment.” 20
In an EIS, an agency must take “a ‘hard look’ at the potential
environmental consequences of [its] proposed action.” 21 It must also “study, develop,
and describe appropriate alternatives to recommended courses of action in any
proposal which involves unresolved conflicts concerning alternative uses of available
18
42 U.S.C. § 4321.
19
Marsh v. Or. Natural Res. Def. Council, 490 U.S. 360, 371 (1989); see also Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 351 (1989) (“Other statutes may impose
substantive environmental obligations on federal agencies, but NEPA merely prohibits
uninformed—rather than unwise—agency action.”); Native Vill. of Chickaloon v. Nat’l Marine
Fisheries Serv., 947 F. Supp. 2d 1031, 1069 (D. Alaska 2013).
20
42 U.S.C. § 4332(C).
21
See League of Wilderness Defenders-Blue Mountain Biodiversity Project v. U.S. Forest Serv.,
689 F.3d 1060, 1075 (9th Cir. 2012) (quoting League of Wilderness Defenders Blue Mountain
Biodiversity Project v. Allen, 615 F.3d 1122, 1135 (9th Cir. 2010)).
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resources.”22
Under CEQ regulations, “[a] cooperating agency may adopt without
recirculating the [EIS] of a lead agency when, after an independent review of the
statement, the cooperating agency concludes that its comments and suggestions have
been satisfied.”23
In view of NEPA’s purpose to ensure fully informed decision-making, “an agency
that has prepared [or adopted] an EIS cannot simply rest on the original document. The
agency must be alert to new information that may alter the results of its original
environmental analysis, and continue to take a ‘hard look at the environmental effects of
[its] planned action . . . .’” 24
CEQ regulations require the agency to prepare a
supplemental EIS (“SEIS”) if (1) “[t]he agency makes substantial changes in the
proposed action that are relevant to environmental concerns”; or (2) “[t]here are
significant new circumstances or information relevant to environmental concerns and
bearing on the proposed action or its impacts.” 25 CEQ guidelines provide that “[a]s a
rule of thumb, . . . EISs that are more than 5 years old should be carefully reexamined
to determine if the[se] criteria . . . compel preparation of an EIS supplement.”26 The
22
42 U.S.C. § 4332(E).
23
40 C.F.R. § 1506.3(c).
24
Friends of the Clearwater v. Dombeck, 222 F.3d 552, 557 (9th Cir. 2000) (quoting Marsh, 490
U.S. at 374).
25
40 C.F.R. § 1502.9(c)(1).
26
Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act
Regulations, 46 Fed. Reg. 18,026, 18,036 (Mar. 23, 1981).
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agency “must make a reasoned decision whether an SEIS is required,” and if it decides
an SEIS is not required, it must document that decision in the record. 27
II.
Factual Background.
A. The NPR-A, the Colville River Delta, and the City of Nuiqsut.
Established in 1923, the NPR-A on Alaska’s North Slope is “the largest single
unit of public land in the United States and covers 23.6 million acres. It is also an
important habitat for vegetation, fish, and wildlife.”28
In a 1980 appropriations bill,
Congress directed the Secretary of the Interior to conduct “an expeditious program of
competitive leasing of oil and gas in the [NPR-A].” 29 Presently, the Bureau of Land
Management (“BLM”) administers the NPR-A.
In the eastern half of the NPR-A, the Colville River flows east along the southern
boundary and then north along the eastern boundary, eventually making its way through
a large delta before emptying into the Beaufort Sea. 30 That delta, aptly termed the
Colville River Delta, covers approximately 250 square miles31 and “is relatively flat,
27
Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 855 (9th Cir. 2013); cf. Friends of
the Clearwater, 222 F.3d at 558–59 (finding NEPA violation where there was “no evidence in
the record that . . . the Forest Service ever considered whether [certain pieces of new
information] were sufficiently significant to require preparation of an SEIS”).
28
N. Alaska Envt’l Ctr. v. Kempthorne, 457 F.3d 969, 973 (9th Cir. 2006); see also N. Alaska
Envt’l Ctr. v. Norton, 361 F. Supp. 2d 1069, 1072 (D. Alaska 2005) (providing background on
the NPR-A).
29
Act of Dec. 12, 1980, Pub. L. No. 96-514, 94 Stat. 2957; see also 42 U.S.C. § 6506a(a) (“The
Secretary shall conduct an expeditious program of competitive leasing of oil and gas in the
Reserve . . . .”).
30
See Administrative Record [hereinafter A.R.] 2516 (Special Areas NPR-A Map).
31
A.R. 7490 (8/12/10 ConocoPhillips’s Response to Review Officer’s Questions).
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tundra-covered terrain, with local relief produced by a complex network of lakes
interspersed with low-lying ridges and channels.” 32 It is the largest delta in northern
Alaska, draining 29% of the North Slope. 33 It is an area “recognized internationally for
its biological diversity and richness” and “regionally for its importance to fish, wildlife,
and subsistence resources.” 34
The City of Nuiqsut is one of only two permanent population centers within the
Colville River Delta. 35 Approximately 500 people live in Nuiqsut, which is located on the
west bank of the Nigliq Channel of the Colville River, roughly 15–20 miles from the
Beaufort Sea. 36 The eastern boundary of the NPR-A is located just west of the Nigliq
Channel, and Nuiqsut is just inside that boundary. 37 “To this day, the Inupiat people of
Nuiqsut have a subsistence-based economy, with caribou, moose, birds, fish, seals and
bowhead whales as primary food sources.” 38
32
A.R. 451 (2004 Alpine Satellites EIS).
33
A.R. 4079 (6/9/09 Letter from EPA to Corps).
34
A.R. 3297 (11/23/05 Letter from USFWS to Corps).
35
A.R. 451 (2004 Alpine Satellites EIS); A.R. 2514 (Plan Area Vicinity and Location Map).
Technically, the City of Nuiqsut is distinct from the Native Village of Nuiqsut, which refers to the
Native community that is represented by Kuukpik. Practically, however, the two are the same,
as over 95% of Nuiqsut’s residents “are Kuukpik shareholders, married to shareholders or
children of shareholders.” See Docket 47 at 2 ¶ 2 (Chinn Decl. in Supp. of Kuukpik Mot. to
Intervene). The other permanent population center within the Colville River Delta is Colville
Village, located very near the Beaufort Sea. A.R. 451 (2004 Alpine Satellites EIS); A.R. 2514
(Plan Area Vicinity and Location Map).
36
A.R. 451 (2004 Alpine Satellites EIS); Docket 47 at 2 ¶ 2 (Chinn Decl. in Supp. of Kuukpik
Mot. to Intervene); see also A.R. 2514 (Plan Area Vicinity and Location Map).
37
See A.R. 2514 (Plan Area Vicinity and Location Map).
38
Docket 47 at 2 ¶ 3 (Chinn Decl. in Supp. of Kuukpik Mot. to Intervene).
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B. The Alpine Oil Field and the 2004 Alpine Satellites EIS.
In the winter of 1994–1995, ARCO Alaska and its partners discovered the Alpine
oil field in the Colville River Delta. 39 In 1998, the Corps issued a permit to ARCO to fill
98.4 acres in order to construct two drill pads, CD-1 and CD-2, as well as the Alpine
Central Processing Facility (“ACPF”), located at CD-1. 40 CD-1 and CD-2 are east of the
Nigliq Channel but west of the Colville River mainstem and outside of the NPR-A. 41 A
pipeline and road connects CD-2 to CD-1, and CD-1 is connected via pipeline to the
Trans-Alaska Pipeline that is further to the east. 42
CD-1 and CD-2 are both
approximately eight miles north of Nuiqsut. 43
In 2001, ARCO’s successor, ConocoPhillips, announced the discovery of
additional oil in the area to the west of Alpine, including areas within the NPR-A. 44
Thereafter, BLM initiated a review process pursuant to NEPA to assess the
environmental impact of ConocoPhillips’s proposal to develop five drill sites: CD-3
through CD-7. 45 ConocoPhillips proposed placing 20 to 30 wells on each of the five
pads, transporting unprocessed three-phase fluid (i.e., oil, water, gas) to ACPF for
39
A.R. 306 (2004 Alpine Satellites EIS).
40
A.R. 306 (2004 Alpine Satellites EIS); A.R. 6768 (2011 ROD).
41
A.R. 2514 (Plan Area Vicinity and Location Map).
42
See A.R. 306 (2004 Alpine Satellites EIS); A.R. 2514 (Plan Area Vicinity and Location Map);
A.R. 2515 (Plan Area Map).
43
See A.R. 451 (2004 Alpine Satellites EIS); A.R. 2514 (Plan Area Vicinity and Location Map).
44
A.R. 306 (2004 Alpine Satellites EIS).
45
A.R. 191, 288 (2004 Alpine Satellites EIS); see also A.R. 2387 (4/9/04 Public Notice of
Application for Permit).
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processing, and then transporting processed oil to the Trans-Alaska Pipeline System. 46
The proposed CD-3 and CD-4 drill sites are located east of the Nigliq Channel and
outside the NPR-A on land owned by the State of Alaska and Kuukpik, respectively. 47
CD-3 is to the north of CD-1 and CD-2, and CD-4 is to the south. 48 The proposed CD-5
drill site is to the west of CD-1 and CD-2, across the Nigliq Channel and within the
northeastern boundary of the NPR-A. 49 The proposed CD-6 and CD-7 drill sites, which
have not yet been developed, are even further to the west and within the NPR-A. 50
The NEPA review process culminated in 2004 with the publication of the 2,500page Alpine Satellite Development Plan Final EIS (“Alpine Satellites EIS”). 51 The EIS
was prepared by BLM together with four cooperating entities: the Corps, EPA, U.S.
Coast Guard, and State of Alaska. 52
The EIS analyzes six alternatives:
ConocoPhillips’s proposed action (Alternative A), conformance with existing NPR-A
lease stipulations without exception (Alternative B), alternative access routes
(Alternative C), roadless development (Alternative D), no action (Alternative E), and
BLM’s preferred alternative (Alternative F). 53
46
A.R. 191, 288 (2004 Alpine Satellites EIS).
47
A.R. 191, 288 (2004 Alpine Satellites EIS); see also A.R. 2515 (Plan Area Map).
48
A.R. 2515 (Plan Area Map).
49
A.R. 191, 288 (2004 Alpine Satellites EIS); see also A.R. 2515 (Plan Area Map).
50
A.R. 2515 (Plan Area Map).
51
A.R. 183–2730 (2004 Alpine Satellites EIS).
52
A.R. 191 (2004 Alpine Satellites EIS).
53
A.R. 318 (2004 Alpine Satellites EIS).
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Three of the EIS alternatives are relevant to this appeal. Alternative A includes
construction of gravel roads and bridges “connect[ing] CD-4 through CD-7 to the
existing Alpine Field road.” 54 A proposed road would run from CD-2 west to CD-5 and
would include a 1,200-foot bridge over the Nigliq Channel and an 80-foot bridge across
a lake to access CD-5. 55 Alternative F is similar to Alternative A with respect to CD-5,
except that it would require that the bridge across the Nigliq Channel extend further and
that the approach to the bridge provide for natural water flow. 56 In Alternative C-1, the
proposed road to CD-5 would be shifted to the south, with a bridge crossing the Nigliq
Channel at a location southwest of CD-4. 57
In December 2004, the Corps issued a Section 404 permit to ConocoPhillips for
CD-3 and CD-4 based on the Alpine Satellites EIS. 58
C. The CD-5 Permitting Process.
i.
2005 Permit Application.
In September 2005, ConocoPhillips submitted an application to the Corps for a
Section 404 permit to develop CD-5. 59 ConocoPhillips’s proposal in this application was
similar to Alternatives A and F in the Alpine Satellites EIS. ConocoPhillips proposed a
9.8-acre drill pad with up to 22 wells, a 4.2 mile gravel access road from CD-2 to CD-5,
54
A.R. 319 (2004 Alpine Satellites EIS).
55
A.R. 319, 843 (2004 Alpine Satellites EIS); A.R. 2515 (Plan Area Map).
56
A.R. 321 (2004 Alpine Satellites EIS); A.R. 2574 (Alternative F Site Map).
57
A.R. 320 (2004 Alpine Satellites EIS); A.R. 2569 (Alternative C-1 Site Map).
58
See A.R. 5548–5618 (CD-3 & CD-4 ROD).
59
A.R. 2995 (2005 Permit Application).
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a 1,250-foot bridge over the Nigliq Channel, and a shorter 80-foot bridge over a lake,
with a total fill of 45.1 acres. 60
According to Lanston Chinn, CEO of Kuukpik, the
Nuiqsut community “vehemently opposed” the proposed location of the Nigliq Channel
bridge in the 2005 proposal “because of concerns about long term erosion, potential
impacts on fish habitat, sedimentation and navigability of the Channel, and other
potential impacts of the proposed bridge on the community.” 61 Ultimately, in February
2008, ConocoPhillips asked the Corps to “suspend processing of the application for the
CD 5 project while ConocoPhillips worked with the Native community to resolve project
related issues.”62 The Corps closed the application file in May 2008. 63
ii.
Memorandum of Agreement Between Kuukpik and ConocoPhillips and 2009
Permit Application.
In December 2008, Kuukpik and ConocoPhillips entered into a Memorandum of
Agreement (“MOA”) in which ConocoPhillips agreed to certain terms designed to
ameliorate the impacts of the CD-5 project on the people of Nuiqsut. 64 Specifically,
60
A.R. 8808–10 (Public Notice re 2005 Permit Application). Certain other documents indicate
that the road length was 4.4 miles and the bridge 1375 feet. See A.R. 4009 (3/13/09 Letter from
ConocoPhillips to Corps); A.R. 6782 (2011 ROD).
61
Docket 47 at 3 ¶ 6 (Chinn Decl. in Supp. of Kuukpik Mot. to Intervene). “Under authority
granted Kuukpik by a three-way resolution among the City of Nuiqsut, the Native Village of
Nuiqsut and Kuukpik in 1995 (and since reaffirmed), Kuukpik has taken the lead in representing
the Nuiqsut community on issues relating to oil and gas development on lands within the
traditional subsistence range of the Kuukpikmiut (i.e., the Native people of Nuiqsut).” Docket 47
at 2 ¶ 4.
62
A.R. 3913 (4/15/08 Letter from Corps to ConocoPhillips).
63
A.R. 3916 (5/15/08 Letter from Corps to ConocoPhillips).
64
A.R. 4118 (7/21/09 Letter from Kuukpik to Corps); see also Docket 47 at 4 ¶ 8 (Chinn Decl. in
Supp. of Kuukpik Mot. to Intervene) (“ConocoPhillips also entered into a [MOA] with Kuukpik
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ConocoPhillips agreed to, among other things, help fund construction of a road
connecting Nuiqsut to CD-5, make annual payments to a mitigation fund, seek to
improve its local and Native hire programs, and provide for enhanced consultation with
the local community regarding future projects. 65 At the same time, in December 2008,
ConocoPhillips resubmitted its permit application to the Corps. 66
In May 2009, the Corps issued a public notice regarding ConocoPhillips’s
resubmitted permit application for CD-5. 67
This 2009 application included several
notable changes from ConocoPhillips’s 2005 application. The new application proposed
relocating the drill pad 1.3 miles to the west and increasing the road length from 4.2 to
6.3 miles, increasing the size of the drill pad from 9.8 to 11.7 acres in order to
accommodate up to 33 wells, and moving the Nigliq Channel bridge three miles south to
a location near CD-4. 68
The length of the Nigliq Channel bridge would be slightly
that includes terms designed to avoid and to minimize, as well as mitigate many of the adverse
sociocultural and socioeconomic impacts on the Kuukpikmiut from development.”).
65
A.R. 4133–41 (7/21/09 Letter from Kuukpik to Corps); see also Docket 47 at 4–5 ¶ 8 (Chinn
Decl. in Supp. of Kuukpik Mot. to Intervene).
66
A.R. 3970 (12/1/08 Letter from ConocoPhillips to Corps).
67
A.R. 6769 (2011 ROD). As noted above, December 2008 is the date the application was
initially submitted. A.R. 3970 (12/1/08 Letter from ConocoPhillips to Corps). Thereafter, the
Corps requested, and ConocoPhillips provided, additional information in order to complete the
permit application. A.R. 3977 (12/23/08 Letter from Corps to ConocoPhillips); A.R. 4001
(3/13/09 Letter from ConocoPhillips to Corps). A public notice of the application was issued in
May 2009. A.R. 6769 (2011 ROD). The parties refer to the year of this application differently,
as either 2008 or 2009. See, e.g., Docket 108 at 21 (Kunaknana Pls.’ Mot. for Summ. J.)
(discussing 2008 permit application); Docket 129 (ConocoPhillips Opp’n) (discussing 2009
permit application). The Court will use 2009 as the date of the application in order to be
consistent with the 2011 ROD.
68
A.R. 4009 (3/13/09 Letter from ConocoPhillips to Corps); A.R. 6769 (2011 ROD). In a letter
to the Corps, ConocoPhillips asserted that this bridge location “incorporates local knowledge
provided by Kuukpik shareholders for the purposes of reducing ice jamming, providing for high
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longer—1,405 feet. 69 Additionally, ConocoPhillips’s 2009 application did not include the
80-foot bridge originally proposed; instead, it included a 317-foot bridge over a different
lake and a 277-foot bridge across a creek. 70 The total amount of fill increased from the
45.1 acres proposed in 2005 to 62.1 acres. 71
iii.
2010 Record of Decision and Administrative Appeal.
In February 2010, the Corps issued a Record of Decision (“2010 ROD”) denying
ConocoPhillips’s 2009 CD-5 permit application based on the Corps’ determination that
ConocoPhillips had failed to demonstrate that its revised proposal was the LEDPA. 72
The Corps identified two alternatives that it determined would have less environmental
impact than ConocoPhillips’s proposal because they “minimize impacts to aquatic
resources within the floodplain of the [Colville River Delta].” 73 The “key features” of both
these alternatives was the use of a horizontal directional drilling (“HDD”) pipeline
crossing under the Nigliq Channel and the resultant elimination of the road and bridge
across the Colville River Delta to join CD-5 to ConocoPhillips’s existing Alpine
and stable banks, avoiding popular subsistence fishing areas, and avoiding historic landmarks.”
A.R. 4009 (3/13/09 Letter from ConocoPhillips to Corps).
69
A.R. 4009 (3/13/09 Letter from ConocoPhillips to Corps).
70
A.R. 3926 (12/1/08 CD-5 Project Description).
71
A.R. 4009 (3/13/09 Letter from ConocoPhillips to Corps). The 2011 ROD lists the amount of
fill in the 2009 proposal as 62.2 acres. See A.R. 6782 (2011 ROD).
72
A.R. 4792–93 (2010 ROD); A.R. 6770 (2011 ROD).
73
A.R. 4793 (2010 ROD).
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infrastructure. 74
One alternative included a gravel air strip at CD-5, and the other
included an eight-mile road to CD-5 from Nuiqsut. 75
ConocoPhillips administratively appealed the 2010 ROD on numerous grounds. 76
In Appeal Reason 3, ConocoPhillips asserted the Corps’ LEDPA determination was
“arbitrary, capricious, . . . [and] not supported by substantial evidence in the
administrative record.” 77 ConocoPhillips maintained that the record “does not support a
finding that a three-phase HDD project design is a practicable alternative to
[ConocoPhillips’s] CD-5 proposal.”78
In a decision dated December 2, 2010, a Corps Review Officer determined that
“[m]any of the stated reasons in ConocoPhillips’s [request for appeal] are without merit,
however . . . several aspects of the [request for appeal] have merit,” including certain of
ConocoPhillips’s arguments concerning the practicability of the HDD design. 79 The
Review Officer remanded the permit decision to the Corps District Engineer for “further
clarification and evaluation.” 80
74
A.R. 7571 (Administrative Appeal Decision).
75
A.R. 4801–03 (2010 ROD); A.R. 7571 (Administrative Appeal Decision).
76
See A.R. 7366–7403 (4/2/10 Request for Appeal).
77
A.R. 7379 (4/2/10 Request for Appeal) (quoting 33 C.F.R. § 331.9(b)).
78
A.R. 7379 (4/2/10 Request for Appeal).
79
See A.R. 7570, 7578–79 (Administrative Appeal Decision).
80
A.R. 7590–91 (Administrative Appeal Decision).
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iv.
2011 Record of Decision.
Following the administrative remand, ConocoPhillips and other interested parties
provided the Corps with considerable amounts of additional information on both the
bridge and HDD alternatives. 81 ConocoPhillips also agreed to certain modifications to
its 2009 proposal “to further minimize project impacts in the [Colville River Delta]” in
order to address concerns raised by EPA and U.S. Fish & Wildlife Service (“USFWS”). 82
These modifications included narrowing the road and bridge widths and adding a fourth
bridge that would allow for the flow of flood waters. 83 The modifications reduced the
total amount of fill from 62.1 acres to 58.5 acres. 84
In December 2011, the Corps issued a Record of Decision (“2011 ROD”)
granting ConocoPhillips’s 2009 permit application as modified. The Corps found, based
on the additional information submitted following the administrative remand, that
ConocoPhillips’s bridge proposal as modified was the LEDPA, instead of the HDD
approach. 85 With respect to NEPA, the Corps adopted the 2004 Alpine Satellites EIS. 86
The Corps concluded that an SEIS was not needed to evaluate ConocoPhillips’s
revised permit application because “there have not been substantial changes in the
81
See A.R. 6773–76 (2011 ROD). Following the remand, over 2,000 pages were added to the
administrative record. See A.R. 4883–6762, 10058–10374.
82
A.R. 6782 (2011 ROD).
83
A.R. 6781–82 (2011 ROD).
84
See A.R. 6782 (2011 ROD).
85
A.R. 6773–76, 6902 (2011 ROD).
86
A.R. 6773 (2011 ROD).
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proposed action that are relevant to environmental concerns; and . . . there are not
significant new circumstances or information relevant to environmental concerns and
bearing on the proposal or impacts.”87 The 2011 ROD that issued the Section 404
permit is the final agency action. 88
III.
Procedural History.
On February 27, 2013, the Kunaknana Plaintiffs filed their lawsuit challenging the
Corps’ decision to issue ConocoPhillips the Section 404 permit for CD-5. 89
months later, on June 5, 2013, CBD filed its lawsuit. 90
A few
The Court permitted
ConocoPhillips, Kuukpik, ASRC, the North Slope Borough, and the State of Alaska to
join both actions as Intervenor-Defendants in support of the Corps. 91 Each IntervenorDefendant has a stake in the CD-5 project:
•
•
87
Kuukpik owns the surface estate at the proposed CD-5 location and is the village
corporation for Nuiqsut; 92
“ASRC holds the subsurface estate in the area of the proposed ‘CD-5’ production
pad, and anticipates receiving production royalties once oil production from that
project begins;” 93
A.R. 6899 (2011 ROD).
88
See 33 C.F.R. § 331.10(b) (“If [the Corps] determines that [an administrative] appeal has
merit, the final Corps decision is the district engineer’s decision made pursuant to the . . .
remand of the appealed action.”).
89
Docket 1 (Kunaknana Pls.’ Compl.).
90
Docket 1, Case No. 3:13-cv-00095 (CBD Compl.).
91
See supra note 4.
92
Docket 141 at 3–4 (Kuukpik Opp’n) (citing Docket 47 at 1–3 ¶¶ 1–2, 5 (Chinn Decl. in Supp.
of Kuukpik Mot. to Intervene)); cf. supra notes 5, 61 and accompanying text (discussing
Kuukpik).
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•
The North Slope Borough “is the recognized unit of local government spanning
the North Slope of Alaska;” 94 and
•
The State of Alaska receives taxes and royalties on oil and gas production and
actively participated in the CD-5 permitting process. 95
On August 14, 2013, the Court issued an Order Establishing Joint Case
Management and a Case Schedule, which provided for the joint management of the
Kunaknana Plaintiffs’ and CBD’s actions and set a briefing schedule. 96 On September
4, 2013, the Court issued an order modifying the briefing schedule. 97 Pursuant to this
modified schedule, the parties have filed cross-motions for summary judgment. 98
Additionally, ConocoPhillips filed a motion to strike certain extra-record exhibits
attached to the Plaintiffs’ summary judgment motions. 99
93
Docket 140 at 3 (ASRC Opp’n) (citing Docket 21 at 2 ¶ 4 (Imm. Decl. in Supp. of ASRC Mot.
to Intervene)).
94
Docket 141 at 3 (North Slope Borough Opp’n); see also Docket 64 at 3–6 (Mem. in Supp. of
North Slope Borough Mot. to Intervene).
95
Docket 27 at 4–5 (Mem. in Supp. of State of Alaska Mot. to Intervene); Docket 142 at 7–10
(State of Alaska Opp’n).
96
Docket 86 at 1–4 (Order Establishing Joint Case Mgt.).
97
Docket 96 at 2 (Order Granting Defs. Mot. for Extension of Time & Modifying Case Schedule).
98
See supra notes 8–11 and accompanying text.
99
Docket 126 at 5 (ConocoPhillips Mot. to Strike). The motion has been fully briefed. See
Docket 137 (Kunaknana Pls.’ Opp’n to Mot. to Strike); Docket 139 (CBD Opp’n to Mot. to
Strike); Docket 145 (ConocoPhillips Reply re Mot. to Strike). Additionally, IntervenorDefendants ASRC, State of Alaska, and Kuukpik joined in ConocoPhillips’s motion to strike at
Dockets 132, 133, and 134, respectively.
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On February 5, 2014, after the motions had been fully briefed, the Kunaknana
Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary Injunction. 100
On March 12, 2014, this Court issued an Order denying the motion with respect to the
construction activities already underway at CD-5, based on the Court’s determination
that the balance of the equities was then tipped sharply in favor of ConocoPhillips and
the other Intervenor-Defendants and that a preliminary injunction would not be in the
public interest. 101 The March 2014 Order did not address the Kunaknana Plaintiffs’
likelihood of success on the merits. 102
DISCUSSION
I.
Jurisdiction.
A. Subject Matter Jurisdiction.
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
1331.
B. Article III Standing.
Under Article III of the Constitution, “[t]he jurisdiction of the federal courts is
limited to ‘cases’ and ‘controversies.’” 103
100
Federal courts enforce this jurisdictional
Docket 149 (Mot. for TRO & Prelim. Inj.).
101
Docket 174 at 9 (Order Denying Pls.’ Mot. for TRO & Prelim. Inj.) (“[E]ven 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 ConocoPhillips 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.”).
102
Docket 174 at 7 (Order Denying Pls.’ Mot. for TRO & Prelim. Inj.).
103
Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1138 (9th Cir. 2013) (quoting U.S. Const. art.
III, § 2).
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limitation through the doctrine of “Article III standing.” 104
The Supreme Court
enumerated the requirements for Article III standing in Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc.:
[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it
has suffered an “injury in fact” that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision. 105
The Court explained that in environmental cases, “[t]he relevant showing for purposes
of Article III standing . . . is not injury to the environment but injury to the plaintiff.”106
Thus, “environmental plaintiffs adequately allege injury in fact when they aver that they
use the affected area and are persons ‘for whom the aesthetic and recreational values
of the area will be lessened’ by the challenged activity.” 107
104
See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340–42 (2006).
105
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). In addition to Article III
standing, the Supreme Court has recognized the concept of “prudential standing, which
embodies ‘judicially self-imposed limits on the exercise of federal jurisdiction.’” Elk Grove
Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11–12 (quoting Allen v. Wright, 468 U.S. 737, 751
(1984)). The Plaintiffs’ prudential standing is not an issue in this litigation.
106
Friends of the Earth, Inc., 528 U.S. at 181.
107
Id. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)); see also Ecological
Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1149 (9th Cir. 2000) (“[A]n individual can
establish ‘injury in fact’ by showing a connection to the area of concern sufficient to make
credible the contention that the person’s future life will be less enjoyable—that he or she really
has or will suffer in his or her degree of aesthetic or recreational satisfaction—if the area in
question remains or becomes environmentally degraded.”).
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Plaintiffs bear the burden of establishing their standing to bring suit, 108 and they
“must demonstrate standing for each claim [they] seek[] to press.” 109 At the summary
judgment stage, plaintiffs “must ‘set forth’ by affidavit or other evidence ‘specific facts,’
which for purposes of the summary judgment motion will be taken to be true,” that
demonstrate plaintiffs satisfy the three requirements for Article III standing. 110
i.
Center for Biological Diversity.
CBD filed its lawsuit on behalf of its members. 111 The Supreme Court explained
the requirements for organizational standing in Friends of the Earth:
An association has standing to bring suit on behalf its members when [1]
its members would otherwise have standing to sue in their own right, [2]
the interests at stake are germane to the organization's purpose, and [3]
neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit. 112
In CBD’s case, only the first prong of this test is at issue. To demonstrate that at
least one of its members would have standing to sue in his or her own right, CBD
included as exhibits to its summary judgment motion the declarations of three of its
members—Marybeth Holleman, Rick Steiner, and Jack Lentfer. 113 In its briefing, CBD
108
See Lujan, 504 U.S. at 561.
109
DaimlerChrysler, 547 U.S. at 352.
110
Lujan, 504 U.S. at 561 (citation omitted) (citing Fed. R. Civ. P. 56(e)).
111
See Docket 1 at 3–9 ¶¶ 6–23, Case No. 3:13-cv-00095 (CBD Compl.).
112
Friends of the Earth, 528 U.S. at 181 (citing Hunt v. Wash. State Apple Advert. Comm’n, 432
U.S. 333, 343 (1977)).
113
See Docket 106-1 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.); Docket 106-2 (Ex. 2 to
CBD Mot. for Summ. J.: Lentfer Decl.); Docket 106-3 (Ex. 3 to CBD Mot. for Summ. J.: Steiner
Decl.); see also Docket 106 at 21 (CBD Mot. for Summ. J.) (“Jack Lentfer, Marybeth Holleman
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asserts that these members “have all dedicated extensive time and energy studying,
recreating, and traveling in Arctic Alaska, and each plans to return to enjoy the scenery
and wildlife of the Colville River Delta in the near future.” 114 It further asserts that “[t]he
CD-5 project poses an imminent threat of injury to each member’s interest in enjoying
the recreational and aesthetic value of the area.” 115 But to determine whether CBD has
standing, the Court looks to the members’ declarations, not to counsel’s assertions.
In her declaration, Marybeth Holleman states that she lives in Anchorage,
Alaska. 116 She states that in the past, she has “traveled to and written about Alaska’s
Arctic and its wildlife.” 117 She traveled to Prudhoe Bay in 1988, Unalakleet in 1990, St.
Lawrence Island in 1995, and Barrow and Kaktovik in 2009. 118 On her trip to Barrow
and Kaktovik, Ms. Holleman “flew over the Colville Delta.” 119 She states: “Since the
Kaktovik trip, I have been wanting to return. Primarily, I plan to do some river trips in
the Arctic. . . . The Colville River is one [my spouse and I] are seriously considering in
the next couple of years.” 120 She also states:
and Rick Steiner each have individual standing because the construction of CD-5 will cause
them to suffer a concrete and particularized injury.”).
114
Docket 106 at 21 (CBD Mot. for Summ. J.).
115
Docket 106 at 22 (CBD Mot. for Summ. J.).
116
Docket 106-1 at 2 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.).
117
Docket 106-1 at 2 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.).
118
Docket 106-1 at 2–3 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.).
119
Docket 106-1 at 3 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.).
120
Docket 106-1 at 4 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.).
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I am worried that the currently proposed CD-5 project poses the risk of an
oil spill into the Colville River, which could flow into the Arctic Ocean. If
there were to be an oil spill, my interests in floating the Colville River, and,
more broadly, in viewing and appreciating the wildlife of the Colville Delta
and the Arctic Ocean, would be harmed. 121
In his declaration, Richard Steiner states that he lives in Anchorage, Alaska. 122
He states that he has traveled extensively throughout Arctic Alaska. He describes his
travels as including flying “over the upper reaches of the Colville River.” 123 He states: “I
have been both west and east of the Colville Delta, and have flown over the entire Delta
from Barrow to Prudhoe Bay.” 124 Additionally, he states: “I have always hoped to float
the Colville River, and am hoping to arrange a float in the next couple of years.” 125 He
concludes: “If there were to be an oil spill into the Colville River, it would harm my
interests in seeing and enjoying the Colville Delta and the species that inhabit it.” 126
In his declaration, Jack Lentfer states that he lives in Homer, Alaska and is
“retired from working as a wildlife biologist in Alaska for over 46 years.” 127 In 1964 and
1965, he worked in the Colville River Delta as an employee for the Alaska Department
of Fish & Game. 128 In October 1964, he stayed with a family that lived “approximately
121
Docket 106-1 at 5 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.).
122
Docket 106-3 at 2 (Ex. 3 to CBD Mot. for Summ. J.: Steiner Decl.).
123
Docket 106-3 at 3 (Ex. 3 to CBD Mot. for Summ. J.: Steiner Decl.).
124
Docket 106-3 at 3–4 (Ex. 3 to CBD Mot. for Summ. J.: Steiner Decl.).
125
Docket 106-3 at 5 (Ex. 3 to CBD Mot. for Summ. J.: Steiner Decl.).
126
Docket 106-3 at 6 (Ex. 3 to CBD Mot. for Summ. J.: Steiner Decl.).
127
Docket 106-2 at 1 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
128
Docket 106-2 at 2 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
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13 miles down-river from the CD-5 pad and Nigliq crossing.” From 1969 to 1977, Mr.
Lentfer “made numerous trips as a state and federal employee throughout the North
Slope, including the Colville River delta and surrounding area within the NPR-A.”129 He
also made visits to Nuiqsut during that time, and his daughter did a week-long exchange
with a Nuiqsut family in 1976. 130 He states: “After retiring, I have continued to visit the
Arctic and specifically the vicinity of CD-5 on recreational trips. I flew into the upper
Colville River area with my wife in the spring of 1995 and camped for about ten days in
an outstanding location for observing wildlife in an undisturbed setting.” 131 He also
describes trips to other places in the Arctic in 1999, 2003, and 2007. 132 He states: “I still
have a strong interest in the Arctic coast of northeast Alaska, including the lower Colville
River . . . . I plan to maintain these interests and to continue to travel to Arctic coastal
areas.” 133 He adds that “the presence of oil drilling facilities . . . in the Colville delta
would greatly diminish my enjoyment and appreciation of the area and thus would
probably cause me not to return there.”134
ConocoPhillips asserts that none of these declarations demonstrates past use of
the CD-5 project area “accompanied by credible evidence of planned future use,” and,
therefore, “CBD has failed to demonstrate an injury [in] fact and its case must be
129
Docket 106-2 at 2 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
130
Docket 106-2 at 2, 4 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
131
Docket 106-2 at 3 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
132
Docket 106-2 at 3–4 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
133
Docket 106-2 at 4 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
134
Docket 106-2 at 4–5 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
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dismissed” for lack of standing. 135 In support of this argument, ConocoPhillips cites
Lujan v. Defenders of Wildlife and Wilderness Society, Inc. v. Rey. 136
The other
Intervenor-Defendants join in ConocoPhillips’s argument concerning CBD’s lack of
standing. 137
In Lujan, plaintiffs Defenders of Wildlife and other environmental organizations
(“Defenders”) filed suit against the Secretary of the Interior to challenge a regulation
interpreting Section 7(a)(2) of the Endangered Species Act (“ESA”). The challenged
regulation limited the requirement that federal agencies consult with the Secretary of the
Interior to ensure their actions do not jeopardize endangered species to apply only to
“actions taken in the United States or on the high seas” and not to actions taken in
foreign nations. 138
To support its assertion that it had standing to object to this
limitation, Defenders submitted the affidavits of two of its members.
One member
averred that she had visited Egypt in 1986 to observe the habitat of the endangered Nile
crocodile; that she “intend[s] to do so again, and hope[s] to observe the crocodile
directly”; and that she will suffer harm if ESA Section 7(a)(2) is not applied to the
American role in overseeing the rehabilitation of the Aswan Dam. 139
The second
member averred that she had visited Sri Lanka in 1981 to observe the habitat of certain
135
Docket 129 at 25–26 (ConocoPhillips Opp’n).
136
Docket 129 at 20–21 (ConocoPhillips Opp’n).
137
See Docket 140 at 10 (ASRC Opp’n); Docket 141 at 11 (Kuukpik Opp’n); Docket 142 at 26
(State of Alaska Opp’n); Docket 143 at 5 (North Slope Borough Opp’n).
138
Lujan v. Defenders of Wildlife, 504 U.S. 555, 557–59 (1992).
139
See id. at 563.
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endangered species; that she “intend[s] to return to Sri Lanka in the future and hope[s]
to be more fortunate in spotting at least the endangered elephant and leopard”; and that
she will suffer harm if ESA Section 7(a)(2) is not applied to the Mahaweli project funded
by the U.S. Agency for International Development. 140
The Supreme Court held Defenders lacked standing because the affidavits
contained no facts demonstrating that its members were likely to suffer actual or
imminent injury. 141 The Court explained:
That the women “had visited” the areas of the projects before the projects
commenced proves nothing. . . . And the affiants' profession of an
“inten[t]” to return to the places they had visited before—where they will
presumably, this time, be deprived of the opportunity to observe animals
of the endangered species—is simply not enough. Such “some day”
intentions—without any description of concrete plans, or indeed even any
specification of when the some day will be—do not support a finding of the
“actual or imminent” injury that our cases require. 142
The Court also rejected Defenders’ argument that “any person who uses any part
of a ‘contiguous ecosystem’ adversely affected by a funded activity has standing even if
the activity is located a great distance away.” 143 The Court explained that “a plaintiff
claiming injury from environmental damage must use the area affected by the
challenged activity and not an area roughly ‘in the vicinity’ of it.” 144 The Court also
rejected Defenders’ argument that a person with a personal or professional interest in
140
See id.
141
Id. at 564, 578.
142
Id. at 564 (alteration in original).
143
Id. at 565 (emphasis in original).
144
Id. at 565–66 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 887–89 (1990)).
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an animal species can suffer an injury in fact sufficient to form the basis for standing as
a result of a “single project affecting some portion of that species with which [the
person] has no more specific connection.”145
The Ninth Circuit reached a similar conclusion in Wilderness Society, Inc. v.
Rey. 146 In that case, The Wilderness Society and other environmental organizations
(“TWS”) challenged Forest Service regulations “limit[ing] the scope and availability of
notice, comment, and appeals procedures.” 147 TWS asserted that it had associational
standing by virtue of one of its members’ “recreational and aesthetic injuries.” 148 The
member submitted a declaration stating that he had used Oregon’s Umpqua National
Forest in the past, that the “Ash Creek Fire Salvage Project” threatened the ecological
integrity of that forest, and that the project would have been subject to appeal under
prior regulations. 149
The member also expressed a general intent to return to the
Umpqua National Forest and to other national forests in Washington and Oregon. 150
The Ninth Circuit held that the member’s declaration was “insufficient to support
standing.” 151 The court explained that the member’s “‘some day’ general intention to
return to the national forests of two geographically large states is too vague to confer
145
Id. at 567.
146
622 F.3d 1251 (9th Cir. 2010).
147
Id. at 1253.
148
Id. at 1255–56.
149
Id. at 1256.
150
Id.
151
Id. at 1257.
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standing because [he] has not shown that he is likely to encounter an affected area of
the Umpqua National Forest in his future visits.” 152
Here, the Court agrees with ConocoPhillips that under Lujan and Wilderness
Society, CBD’s members have not demonstrated the requisite injury in fact necessary to
confer standing on CBD. As ConocoPhillips points out, neither Ms. Holleman nor Mr.
Steiner claims to have ever visited the CD-5 project area. 153 The closest either has
come is flying over the Colville River and/or the Colville River Delta. 154 Moreover,
neither has testified about a concrete plan to visit the project area in the future. Rather,
Ms. Holleman states only that she is “seriously considering” floating the Colville River in
the next couple of years, 155 and Mr. Steiner states that he is “hoping” to arrange a float
of the Colville River in the next couple of years. 156 As in Lujan, these “some day”
intentions are insufficient to confer standing, particularly when it is unclear whether
these hypothetical float trips would bring Ms. Holleman or Mr. Steiner to the CD-5
project area.
Mr. Lentfer’s declaration establishes that he has traveled extensively in the
Colville River Delta in the past. However, it appears the closest he ever came to the
152
Id. at 1256.
153
Docket 129 at 22–24 (ConocoPhillips Opp’n).
154
See Docket 106-1 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.); Docket 106-3 (Ex. 3. to
CBD Mot. for Summ. J.: Steiner Decl.); cf. Docket 130 (DeGeorge Decl. in Supp. of
ConocoPhillips Opp’n) (listing distances of various places visited by CBD’s members from the
CD-5 project area).
155
Docket 106-1 at 4 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.).
156
Docket 106-3 at 5 (Ex. 3 to CBD Mot. for Summ. J.: Steiner Decl.).
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CD-5 project area was in 1964, when he stayed with a family that lived 13 miles
downstream from the CD-5 pad and Nigliq crossing. 157 Additionally, Mr. Lentfer has not
demonstrated an intent to return to any part of the Colville River Delta, much less the
CD-5 project area. The most he says is that he has unspecified plans “to continue to
travel to Arctic coastal areas.”158 This is insufficient to establish standing to challenge
the CD-5 project.
In its reply brief, CBD responds to the lack-of-standing argument by asserting:
The area in which CD-5 will be built is only a small part of the area
affected by the Corps’ decision. One of the Center’s primary concerns is
that the Corps’ decision to permit an above-ground pipeline and bridge
increases the risk of a catastrophic oil spill into the Colville River, which
would be carried downstream into the Arctic Ocean. Thus, the Center’s
declarants recreational and aesthetic use and enjoyment of the greater
Colville River Delta and Arctic Ocean go directly to the heart of the injury;
when the zone of impact is widespread, so too are the injuries. 159
Thus, CBD attempts to characterize the CD-5 project as affecting a very large
geographic area, such that its members’ connections to Arctic Alaska are sufficient to
confer standing.
However, CBD has cited no authority for the proposition that an
environmental plaintiff’s standing can be based on connections to the area that could
potentially be affected by an agency decision, i.e., in the event of some catastrophe
157
See Docket 106-2 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.); cf. Docket 130
(DeGeorge Decl. in Supp. of ConocoPhillips Opp’n) (listing distances of various places visited
by CBD’s members from the CD-5 project area).
158
Docket 106-2 at 4 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
159
Docket 147 at 6 (CBD Reply) (citation omitted); see also Docket 147 at 4 (“Each of the
Center’s declarants has visited the zone of impact of the CD-5 project—the Colville River Delta
and adjacent Arctic Ocean . . . .”).
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such as an oil spill, as opposed to the area that will with certainty be affected. 160
Rather, both Lujan and Wilderness Society make clear that an environmental plaintiff
cannot base standing on a connection to the broader ecosystem within which a project
takes place. 161
CBD also asserts that “the Center’s declarants’ interests in affected species . . .
bear directly on the question of injury in fact, regardless of whether the declarants have
viewed those species in the construction area or whether they have viewed those same
animals in other areas affected by the project.” 162
However, the Supreme Court
unequivocally held in Lujan that a plaintiff’s interest in an animal species is insufficient to
confer standing to challenge a “single project affecting some portion of that species with
which [the plaintiff] has no more specific connection.”163
160
To support its assertion that the “zone of impact” of the CD-5 project is widespread, CBD
cites Defenders of Wildlife v. EPA, 420 F.3d 946 (9th Cir. 2005), which was reversed for
reasons unrelated to standing in National Association of Home Builders v. Defenders of Wildlife,
551 U.S. 644 (2007). Defenders of Wildlife v. EPA involved a challenge under ESA to EPA’s
decision to transfer responsibility for CWA permitting to the State of Arizona. Defenders, 420
F.3d at 949–50. To establish standing, plaintiff Defenders of Wildlife submitted affidavits of
Defenders’ members who resided in Arizona and photographed and observed endangered
species in various habitats throughout the state. Id. at 956–58. One intervenor-defendant
argued that these allegations of harm throughout the state did not establish standing “because
the state encompasses too large an area to permit a sufficiently specific injury-in-fact
allegation.” Id. at 957. The court rejected this argument, explaining: “[I]n light of the statewide
impact of EPA’s transfer decision, alleging an injury-in-fact covering large areas within the state
simply reflects the relatively broad nature of the potential harm.” Id. In contrast to Defenders,
this litigation involves a challenge to an agency decision to permit a single development project,
not an agency action affecting an entire state. Accordingly, Defenders does not support CBD’s
position.
161
See supra text accompanying notes 143–44, 152.
162
Docket 147 at 6 (CBD Reply).
163
Lujan v. Defenders of Wildlife, 504 U.S. 555, 567 (1992). CBD cites several cases to support
its assertion that its members’ standing can be based on an interest in Arctic species. See
Docket 147 at 4 (CBD Reply). However, these cases all involved challenges to agency
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This litigation involves a challenge to an agency decision permitting a single
project with a 58.5-acre footprint. 164 58.5 acres is a small fraction of the size of the
Colville River Delta and an even smaller fraction of Arctic Alaska. 165 Based upon the
nature of this project and the controlling precedent of the Supreme Court and the Ninth
Circuit with respect to standing, the CBD declarants’ connections to Arctic Alaska and to
Arctic species are insufficient “to make credible the contention that [their] future life will
be less enjoyable—that [they] really ha[ve] or will suffer in [their] degree of aesthetic or
recreational satisfaction” if CD-5 is developed. 166
CBD therefore lacks Article III
standing, and its action will be dismissed.
regulations or programs covering very large geographic areas. See Ctr. for Biological Diversity
v. Kempthorne, 588 F.3d 701, 705, 707–08 (9th Cir. 2009) (holding plaintiffs who viewed polar
bears and walruses in Beaufort Sea region and had plans to do so in future had standing to
challenge USFWS regulation authorizing non-lethal “take” of polar bears and walruses by oil
and gas activities in that region); Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d
466, 471, 479 (D.C. Cir. 2009) (holding plaintiffs with interest in animals living in Outer
Continental Shelf area of Beaufort, Bering, and Chukchi Seas who detailed “definitive dates” for
traveling to view such animals in future had standing to challenge Department of Interior’s
expansion of oil and gas leasing program in that area); Didrickson v. U.S. Dep’t of Interior, 982
F.2d 1332, 1337–41 (9th Cir. 1992) (holding Alaska plaintiffs who observed and enjoyed Alaska
sea otters had standing on appeal to challenge trial court judgment striking down regulation
prohibiting Alaska Natives from taking sea otters in order to make handicrafts and clothing).
164
See A.R. 6782 (2011 ROD).
165
58.5 acres is approximately 0.0016 square miles. The Colville River Delta is approximately
250 square miles in size. A.R. 7490 (8/12/10 ConocoPhillips’s Response to Review Officer’s
Questions). Arctic Alaska is approximately 216,000 square miles in size. Docket 130 at 3 ¶ 12
(DeGeorge Decl. in Supp. of ConocoPhillips Opp’n).
166
See Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1149 (9th Cir. 2000).
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ii.
Kunaknana Plaintiffs.
The Kunaknana Plaintiffs are individuals who live in Nuiqsut, 167 which is
approximately eight miles south of the Alpine Central Processing Facility at CD-1. 168 In
declarations submitted with their motion for summary judgment, the Kunaknana
Plaintiffs state that they conduct subsistence activities in the vicinity of the CD-5
project. 169
They assert that “[t]he CD-5 project will directly harm [their] aesthetic,
spiritual, cultural, religious, and recreational enjoyment of the CD-5 area,” and 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.” 170
The Kunaknana Plaintiffs’ declarations demonstrate an injury in fact
traceable to the Corps’ actions and redressable by a favorable court decision, such that
the Kunaknana Plaintiffs have Article III standing. 171
167
See Docket 110 at 1 ¶ 2 (Kunaknana Decl.); Docket 111 at 1 ¶ 2 (Itta Decl.); Docket 112 at 1
¶ 2 (Nukapigak Decl.); Docket 113 at 1 ¶ 2 (Ahnupkana Decl.); Docket 114 at 1 ¶ 2 (Nicholls
Decl.).
168
A.R. 451 (2004 Alpine Satellites EIS); Docket 47 at 2 ¶¶ 2–3 (Chinn Decl. in Supp. of
Kuukpik Mot. to Intervene); cf. supra notes 35–38 and accompanying text (discussing Nuiqsut).
169
See Docket 110 (Kunaknana Decl.); Docket 111 (Itta Decl.); Docket 112 (Nukapigak Decl.);
Docket 113 (Ahnupkana Decl.); Docket 114 (Nicholls Decl.); see also Docket 129 at 28
(ConocoPhillips Opp’n) (stating Kunaknana Plaintiffs’ declarations show “actual and repeated
use of the area affected by the project for recreational, aesthetic, subsistence and religious
purposes”).
170
Docket 110 at 3 ¶¶ 10, 12 (Kunaknana Decl.); Docket 111 at 3 ¶¶ 10–11 (Itta Decl.); Docket
112 at 3 ¶¶ 10–11 (Nukapigak Decl.); Docket 113 at 2–3 ¶¶ 10–11 (Ahnupkana Decl.); Docket
114 at 3 ¶¶ 10–11 (Nicholls Decl.).
171
ConocoPhillips asserts that “[t]he decision in Wildearth Guardians v. Salazar demonstrates
that the [Kunaknana] [P]laintiffs lack standing with respect to their NEPA arguments based on
climate change impacts.” Docket 129 at 29 (ConocoPhillips Opp’n). However, as the
Kunaknana Plaintiffs correctly point out in their reply, the decision in Wildearth is inapposite.
See Docket 146 at 28–29 (Kunaknana Pls.’ Reply). In that case, plaintiff environmental
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II.
Standard of Review of Agency Action.
The Kunaknana Plaintiffs assert that the Corps’ issuance of the wetlands permit
for the CD-5 project violated NEPA and Section 404 of the CWA. They seek judicial
review of the Corps’ decision under the Administrative Procedure Act (“APA”), 172 which
provides that “[a] person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant statute, is
entitled to judicial review thereof.”173 The APA directs courts to “hold unlawful and set
organizations argued that BLM failed to prepare an adequate EIS before leasing certain public
lands for coal mining operations. Wildearth Guardians v. Salazar, 880 F. Supp. 2d 77, 80, 82
(D.D.C. 2012). They asserted, among other things, that their interest in the lands would be
harmed by climate change impacts that would result from greenhouse gas emissions caused by
the coal mining. Id. at 83. The court held plaintiffs lacked standing to pursue this climate
change claim because the “causal chain . . . is ultimately too attenuated.” Id. at 86. In this
case, by contrast, the Kunaknana Plaintiffs do not allege that they will be harmed by climate
change impacts caused by the CD-5 project. See Docket 146 at 28 (Kunaknana Pls.’ Reply)
(“Causation pertaining to climate change impacts from projects that emit greenhouse gases is
not at issue in this case”). Rather, they assert that the Corps failed to consider and evaluate
post-2004 information concerning climate change that could affect the environmental impact of
the CD-5 project. See Docket 108 at 43–46 (Kunaknana Pls.’ Mot. for Summ. J.); Docket 146 at
27–32 (Kunaknana Pls.’ Reply). The Kunaknana Plaintiffs have Article III standing to bring this
claim.
172
See Docket 107 at 2 (Kunaknana Pls.’ Mot. for Summ. J.).
173
5 U.S.C. § 702; see also Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059
(9th Cir. 2003) (en banc) (“The Administrative Procedure Act (‘APA’) governs judicial review of
agency action.”). A plaintiff bringing suit under the APA must meet the APA’s standing
requirements in addition to the Article III standing requirements. “[T]he APA’s standing
requirements [are] that there be (1) a final agency action; and (2) that the plaintiff suffers an
injury that falls within the ‘zone of interests’ of the violated statutory provision.” Laub v. U.S.
Dep’t of Interior, 342 F.3d 1080, 1087 (9th Cir. 2003) (citing Lujan v. Nat’l Wildlife Fed’n, 497
U.S. 871, 882–83 (1990)). In this case, it appears undisputed that the 2011 ROD is a final
agency action and that the Kunaknana Plaintiffs’ alleged injuries fall within the “zone of
interests” sought to be protected by the CWA and NEPA.
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aside” an agency decision that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 174
The Supreme Court has held that “[t]he scope of review under the ‘arbitrary and
capricious' standard is narrow and a court is not to substitute its judgment for that of the
agency.” 175 And the Ninth Circuit has “emphasized that deference to the agency’s
decisions is especially warranted when reviewing the agency’s technical analysis and
judgments, based on an evaluation of complex scientific data within the agency’s
technical expertise.” 176 “Nevertheless, the agency must examine the relevant data and
articulate a satisfactory explanation for its action including a rational connection
between the facts found and the choice made.” 177
“In conducting [its] review, [a court] may look only to the administrative record to
determine whether the agency has articulated a rational basis for its decision.”178 The
court must consider, based on the record, whether the agency’s decision “was based on
a consideration of the relevant factors and whether there has been a clear error of
judgment.” 179 The court may “uphold a decision of less than ideal clarity if the agency’s
174
5 U.S.C. § 706(2)(A).
175
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983).
176
Native Village of Point Hope v. Salazar, 680 F.3d 1123, 1130 (9th Cir. 2012) (internal
quotation marks omitted).
177
Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43.
178
Arrington v. Daniels, 516 F.3d 1106, 1113 (9th Cir. 2008).
179
Nw. Coal. for Alternatives to Pesticides (NCAP) v. EPA, 544 F.3d 1043, 1048 (9th Cir. 2008)
(quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).
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path may be reasonably discerned.”180
But “when an agency fails to provide an
explanation for its actions [the court is] left with no means of reviewing the
reasonableness of that action.” 181 Therefore, an “agency’s lack of explanation for its
choice renders its decision arbitrary and capricious.” 182
III.
Kunaknana Plaintiffs’ Failure to Participate in the CD-5 Permitting Process.
ConocoPhillips asserts that the Kunaknana Plaintiffs’ claims should be dismissed
because they did not participate in the CD-5 permitting process before the agency. 183
The other Intervenor-Defendants join in ConocoPhillips’s argument. 184 The Kunaknana
Plaintiffs do not dispute that they did not participate in the permitting process, 185 but
they maintain that the Court can hear their claims because they were not required to
submit comments to the agency and because the Corps “was aware of and had the
opportunity to address all of the issues identified in this lawsuit.” 186
180
Id. (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).
181
Arrington, 516 F.3d at 1114.
182
Id.
183
Docket 129 at 29–30 (ConocoPhillips Opp’n).
184
See Docket 140 at 10 (ASRC Opp’n); Docket 141 at 12 & n.46 (Kuukpik Opp’n); Docket 142
at 23 (State of Alaska Opp’n); Docket 143 at 5 (North Slope Borough Opp’n).
185
In his declaration, one of the Kunaknana Plaintiffs, Sam Kunaknana, states that he
“participated in a meeting regarding CD-5 held by the Corps prior to the Corps issuing its 2010
Record of Decision.” Docket 110 at 3 (Kunaknana Decl.). However, he does not elaborate
further, and the Kunaknana Plaintiffs do not discuss Mr. Kunaknana’s participation in the
administrative process in their briefing.
186
Docket 146 at 10 (Kunaknana Pls.’ Reply).
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The Ninth Circuit “has declined to adopt ‘a broad rule which would require
participation in agency proceedings as a condition precedent to seeking judicial review
of an agency decision.’” 187 However, the Ninth Circuit has also stated that absent
exceptional circumstances, it will decline to consider specific issues that were not raised
at all before the agency during the administrative process, 188 a requirement the
Kunaknana Plaintiffs refer to as “issue exhaustion.”189
The purpose of the issue
exhaustion requirement is “to permit [the] administrative agenc[y] to utilize [its]
expertise, correct any mistakes, and avoid unnecessary judicial intervention in the
process.” 190 Thus, an issue can form the basis of a legal challenge to an agency action
187
‘Ilio‘ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083, 1092 (9th Cir. 2006) (quoting Kunaknana v.
Clark, 742 F.2d 1145, 1148 (9th Cir. 1984)). Before a party may seek judicial review of an
agency action under the APA, the party must exhaust all administrative remedies prescribed by
statute or agency rule. See Darby v. Cisneros, 509 U.S. 137, 146–47 (1993) (interpreting 5
U.S.C. § 704). But here, the Kunaknana Plaintiffs correctly point out that exhaustion of
administrative remedies is not an issue. “There is no . . . provision in the CWA, NEPA, or their
regulations at issue in this case requiring that [the Kunaknana] Plaintiffs submit comments or
exhaust any specified administrative remedies” as a prerequisite to bringing suit in federal court.
See Docket 146 at 15 (Kunaknana Pls.’ Reply).
188
See, e.g., Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 1058, 1065
(9th Cir. 2009); Portland Gen. Elec. Co. v. Bonneville Power Admin., 501 F.3d 1009, 1024 (9th
Cir. 2007); Marathon Oil Co. v. United States, 807 F.2d 759, 767–68 (9th Cir. 1986). The Ninth
Circuit has suggested that an example of “exceptional circumstances” would be evidence of
administrative bias. See Geo-Energy Partners-1983 Ltd. v. Salazar, 613 F.3d 946, 959 (9th Cir.
2010).
189
See Docket 146 at 10 (Kunaknana Pls.’ Reply). The Kunaknana Plaintiffs correctly point out
that courts sometimes blur the distinction between exhaustion of administrative remedies and
“issue exhaustion.” See Docket 146 at 10 n.1. In Portland General Electric Co. v. Bonneville
Power Administration, the Ninth Circuit stated that although the general requirement that issues
first be raised before the administrative agency “has sometimes been phrased in terms of
standing or exhaustion, . . . it is best characterized as waiver.” 501 F.3d at 1023. However,
some subsequent Ninth Circuit decisions have continued to use the term “exhaustion.” See,
e.g., Nat’l Parks & Conservation Ass’n, 606 F.3d at 1065. To maintain consistency with the
briefing in this case, this Court will use the term “issue exhaustion.”
190
Lands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir. 2010).
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in federal court only if that issue was first brought to the attention of the agency with
clarity sufficient to allow the agency the opportunity to consider the issue and to rectify
the violations alleged. 191 However, there is no requirement that the plaintiff be the one
who raised the issue before the agency. 192
The Supreme Court discussed issue exhaustion in the context of a NEPA claim
in Department of Transportation v. Public Citizen. 193 In that case, the Federal Motor
Carrier Safety Administration issued an environmental assessment (“EA”) for its
proposed rules to regulate the safety of Mexican motor carriers. The EA concluded that
the rules would have no significant impact on the environment. 194 The plaintiffs filed
suit, arguing the EA’s analysis was flawed in part because it should have considered
alternatives to the issuance of the rules. 195 However, because the plaintiffs did not raise
this particular challenge to the EA during the administrative process, the Court held the
plaintiffs had forfeited this objection. 196
The Court stated: “Persons challenging an
agency’s compliance with NEPA must ‘structure their participation so that it . . . alerts
191
See Nat’l Parks & Conservation Ass’n, 606 F.3d at 1065.
192
See Portland Gen. Elec. Co., 501 F.3d at 1024 (“In general, we will not invoke the waiver rule
in our review of a notice-and-comment proceeding if an agency has had an opportunity to
consider the issue. This is true even if the issue was considered sua sponte by the agency or
was raised by someone other than the petitioning party.” (citation omitted)); see also Great
Basin Mine Watch v. Hankins, 456 F.3d 955, 971 (9th Cir. 2006) (taking into account comments
submitted by parties other than plaintiffs in determining whether issue of adequacy of EIS’s
cumulative impact analysis was brought to attention of BLM during administrative process).
193
541 U.S. 752 (2004).
194
Id. at 760–62.
195
Id. at 762–64.
196
Id. at 764–65.
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the agency to the [parties’] positions and contentions,’ in order to allow the agency to
give the issue meaningful consideration.” 197
And yet, after articulating this holding, the Court added that “[a]dmittedly, the
agency bears the primary responsibility to ensure that it complies with NEPA.” 198
Although not the situation in Department of Transportation, the Court suggested that “an
EA’s or an EIS’s flaws might be so obvious that there is no need for a commentator to
point them out specifically in order to preserve its ability to challenge a proposed
action.”199 “[The Ninth Circuit] has interpreted the ‘so obvious’ standard as requiring
that the agency have independent knowledge of the issues that concern petitioners.” 200
For the foregoing reasons, the fact that the Kunaknana Plaintiffs did not
participate in the administrative process for CD-5 does not preclude them from
maintaining this lawsuit. However, for each issue they seek to raise here, it must be
clear from the record that the Corps was aware of the issue. Whether that is the case
will be discussed in the next section with respect to each of the issues underlying the
Kunaknana Plaintiffs’ NEPA claim.
197
Id. at 764 (quoting Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc.,
435 U.S. 519, 553 (1978)). Courts sometimes refer to this principle as the “Vermont Yankee
doctrine.” See, e.g., Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1534 (9th
Cir. 1997).
198
Dep’t of Transp., 541 U.S. at 765.
199
Id.
200
Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011) (citing ‘Ilio‘ulaokalani
Coal. v. Rumsfeld, 464 F.3d 1083, 1092 (9th Cir. 2006)); cf. supra note 192 (explaining that
even if plaintiff didn’t raise issue before agency, plaintiff can raise issue in court so long as it
appears agency was aware of issue).
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IV.
Claim 1: Violation of NEPA.
The Kunaknana Plaintiffs’ first claim is that the Corps’ issuance of the Section
404 permit to ConocoPhillips violated NEPA. As discussed above, in the 2011 ROD
granting ConocoPhillips a Section 404 permit for CD-5, the Corps adopted the 2004
Alpine Satellites EIS. 201 The Kunaknana Plaintiffs’ primary argument is that the Corps
was required to conduct a supplemental NEPA analysis for two reasons: (1) the CD-5
project has been reconfigured since the 2004 Alpine Satellites EIS, and (2) “there is
new information bearing on the environmental analysis conducted by the BLM in
2004.” 202 The Kunaknana Plaintiffs also assert that even if the Court declines to find an
SEIS is required, the Corps failed to provide a reasoned explanation for its decision not
to prepare an SEIS. 203
An agency is not required to prepare an SEIS every time there are changes to a
project or new information comes to light. 204 Rather, an agency must prepare an SEIS
only if there are substantial changes to the proposed project or if there is significant new
information relevant to environmental concerns. 205
201
A.R. 6773 (2011 ROD).
202
Docket 108 at 31 (Kunaknana Pls.’ Mot. for Summ. J.).
203
See Docket 108 at 32 (Kunaknana Pls.’ Mot. for Summ. J.) (“[T]he Corps not only failed to
prepare the requisite supplemental EIS or EA, it failed to even make the initial determination
that there is no significant new information or that the project has not changed in such a manner
to warrant additional NEPA analysis, which violates NEPA.”).
204
See Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 854 (9th Cir. 2013); N. Idaho
Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1157 (9th Cir. 2008) (per
curiam).
205
See supra note 25 (quoting 40 C.F.R. § 1502.9(c)(1)); see also N. Idaho Cmty. Action
Network, 545 F.3d at 1157 (“[A] SEIS is required only if changes, new information, or
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Whether an SEIS is required “is a classic example of a factual dispute the
resolution of which implicates substantial agency expertise.” 206 Such disputes “must be
resolved in favor of the expert agency so long as the agency’s decision is based on a
reasoned evaluation of the relevant factors.” 207
Thus, if an agency has decided
preparation of an SEIS is not required, a reviewing court must carefully review the
record and satisfy itself that the agency’s decision was based on a reasoned evaluation
of the significance of project changes and/or new information. 208 But if the record does
not contain a reasoned explanation for the agency’s decision not to prepare an SEIS,
the court should set aside the agency’s decision as “arbitrary or capricious.” 209
circumstances may result in significant environmental impacts ‘in a manner not previously
evaluated and considered.’” (quoting Westlands Water Dist. v. Dep’t of Interior, 376 F.3d 853,
873 (9th Cir. 2004))).
206
Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376 (1989).
207
Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 954 (9th Cir. 2003) (emphasis
added).
208
See Marsh, 490 F.3d at 378. The Kunaknana Plaintiffs appear to assert that the Corps
should have prepared an “environmental reevaluation” or a “supplemental information report”
documenting its determination that an SEIS was unnecessary. See Docket 108 at 37
(Kunaknana Pls.’ Mot. for Summ. J.) (“[T]he Corps never prepared an ‘environmental
reevaluation’ or other similar document (e.g., a supplemental information report) to determine if
a supplemental NEPA review was required.”). However, the Corps correctly points out that “an
agency must only ‘make a reasoned decision documented in the record’ . . . . No specific form
of documentation is required.” Docket 131 at 32 (Corps Opp’n) (quoting Great Old Broads for
Wilderness, 709 F.3d at 855); see also Price Road Neighborhood Ass’n, Inc. v. U.S. Dep’t of
Transp., 113 F.3d 1505, 1510 (9th Cir. 1997) (noting neither NEPA nor CEQ regulations discuss
how agencies should make determination whether SEIS is required); Natural Res. Def. Council,
Inc. v. Evans, 232 F. Supp. 2d 1003, 1043–44 (N.D. Cal. 2002) (affirming agency’s decision not
to prepare SEIS based on agency’s satisfactory explanation for that decision in a ROD).
209
See Marsh, 490 F.3d at 376–78, 385; supra Discussion Part II (explaining APA standard of
review).
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These concepts were applied by the Ninth Circuit in Friends of the Clearwater v.
Dombeck. 210 There, Friends of the Clearwater and other environmental groups (“FOC”)
challenged the Forest Service’s denial of their demand that it prepare an SEIS to
address, among other things, seven new sensitive species designations that had
occurred in the nine years since the Forest Service completed the original EIS. 211 The
district court held that data in the original EIS supported Forest Service’s decision not to
prepare an SEIS and granted summary judgment to the Forest Service. 212 On appeal,
FOC argued that the Forest Service failed “sufficiently to consider and evaluate the
need for[] an SEIS in light of the seven new sensitive species designations.” 213
The Ninth Circuit agreed with FOC, explaining:
There is no evidence in the record that, before the inception of this action,
the Forest Service ever considered whether the seven new sensitive
species designations . . . were sufficiently significant to require preparation
of an SEIS. When confronted with this important new information, it was
incumbent on the Forest Service to evaluate the existing EIS to determine
whether it required supplementation. 214
The Ninth Circuit held “that the Forest Service’s failure to evaluate in a timely manner
the need to supplement the original EIS in light of that new information violated
NEPA.” 215
210
222 F.3d 552 (9th Cir. 2000).
211
Id. at 555–56.
212
Id. at 556.
213
Id. at 558.
214
Id. at 559.
215
Id.; cf. also Cal. Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 1072, 1082–83, 1097–
98, 1105–06 (9th Cir. 2011) (holding Department of Energy violated NEPA because its
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A. Changes to the CD-5 Project.
The Kunaknana Plaintiffs first assert that the Corps was required to conduct a
supplemental NEPA analysis, or at least to make a reasoned determination whether
supplementation was required, because changes have been made to the CD-5 project
from what was analyzed in the 2004 Alpine Satellites EIS. 216 The Kunaknana Plaintiffs
correctly assert that in 2009 both EPA and USFWS recommended to the Corps that it
prepare an SEIS to address changes made to the CD-5 project from what was analyzed
in the 2004 Alpine Satellites EIS, 217 and it is clear from the 2011 ROD that the Corps
was aware of this issue during the administrative process. 218 Accordingly, the Court
finds that issue exhaustion does not preclude the Kunaknana Plaintiffs from raising this
issue as part of their NEPA claim.
As examples of project changes that have occurred since 2004, the Kunaknana
Plaintiffs point to the relocation of the CD-5 pad 1.3 miles west, the increase in the
number of wells, the changed location of the Nigliq Channel bridge, the changed road
“conclusory statement” that its designation of national interest electric transmission corridors
would have no environmental impact was inadequate explanation for its decision not to prepare
EIS).
216
Docket 108 at 34 (Kunaknana Pls.’ Mot. for Summ. J.).
217
See Docket 146 at 11–12 & n.11 (Kunaknana Pls.’ Reply) (citing A.R. 4077 (6/05/09 Letter
from USFWS to Corps) (“In light of the proposed changes to the CD-5 development project, the
lack of alternatives analysis, and advances in relevant technology, the Service recommends the
development of a Supplemental EIS to update the Alpine Satellites Development EIS.”); A.R.
4082 (6/09/09 Letter from EPA to Corps) (“EPA strongly recommends the USACE carefully
consider preparing a Supplemental EIS to analyze this current, specific proposal in light of the
significant changes made by the applicant . . . .”)).
218
See A.R. 6811, 6814 (2011 ROD) (responding to EPA’s and USFWS’s recommendations
that the Corps prepare SEIS in light of changes to CD-5 project).
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alignment and increased road length, the increase in the number of bridges, the
increased amount of fill, the increased pad size, and certain mitigation measures.219
They contend that the Corps failed to adequately evaluate the significance of these
modifications, instead providing “only unsupported conclusions in [the 2011 ROD] that
the CD-5 project[] has not been ‘substantial[ly] changed’ since the Alpine Satellites
EIS.” 220
In the 2011 ROD, the Corps stated that it had determined that the project
changes were not substantial enough to warrant preparation of an SEIS, 221 but it offered
only minimal explanation for this determination. In response to the comments from EPA
and USFWS recommending that the Corps prepare an SEIS, the Corps stated:
The Corps . . . disagrees that ConocoPhillips’s latest proposal is
substantially different than that identified in the FEIS. ConocoPhillips’s
current proposal is very similar to the Alternative F theme that was
analyzed in the FEIS. Alternative F in the FEIS was identified as the lead
agency’s (BLM) preferred alternative. 222
Then, in response to comments from environmental groups, the Corps offered a
somewhat different explanation for its decision not to prepare an SEIS to address
project changes:
ConocoPhillips’s proposal is not substantially different than the
alternatives analyzed in the FEIS. The determination has been made that
the FEIS is still adequate and relevant for the evaluation of the CD-5
219
Docket 108 at 33–34 (Kunaknana Pls.’ Mot. for Summ. J.).
220
Docket 108 at 34 (Kunaknana Pls.’ Mot. for Summ. J.) (third alteration in original) (citing A.R.
6811 (2011 ROD)).
221
See A.R. 6899 (2011 ROD).
222
A.R. 6811 (2011 ROD) (response to EPA); A.R. 6814 (2011 ROD) (response to USFWS).
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project at this time. Numerous alternatives and road alignments were
analyzed in the FEIS including a road route along the southerly route that
is currently proposed by ConocoPhillips. Although there have been some
changes to the locations and sizes of the drill pad the impacts that will
result from the project are similar. 223
The referenced alternative with a southerly road route appears to be Alternative C-1 in
the Alpine Satellites EIS. 224
The problem with the assertion that the approved CD-5 project is similar to
Alternative F in the Alpine Satellites EIS is that it contains several changes, including
the relocation of the CD-5 drill pad 1.3 miles to the west of the location analyzed in the
EIS and an increase in the number of wells from 22 to 33. 225 Thus, as the Corps
recognized elsewhere in the 2011 ROD, the approved CD-5 project is only “similar in
concept to Alternatives A and F in the FEIS,” since the “locations of the road, bridge,
pipeline route and pad . . . have changed.” 226 And while a more southerly road route
may have been analyzed as part of Alternative C-1, the location of the CD-5 pad as
finally approved was not analyzed as part of any of the EIS alternatives. 227 The Corps
223
A.R. 6837 (2011 ROD).
224
See A.R. 2569 (Alternative C-1 Site Map); see also Docket 129 at 46–47 & n.181
(ConocoPhillips Opp’n) (asserting location of Nigliq Channel bridge in Alternative C-1 is
“indistinguishable” from location approved in 2011 ROD).
225
See A.R. 6781–82 (2011 ROD) (“The CD-5 drill pad was relocated 1.3 miles to the west of
the site originally identified in the FEIS . . . . Additionally, the size of the CD-5 drill pad has
increased to accommodate an increase in the proposed number of wells and additional surface
infrastructure.”).
226
A.R. 6787 (2011 ROD) (emphasis added).
227
The location of the CD-5 pad was the same in each of the EIS alternatives. See A.R. 2567–
74 (Maps of Alternatives); see also Docket 146 at 18 (Kunaknana Pls.’ Reply) (“[N]one of the
alternatives reviewed in the 2004 EIS include an option with the drill pad located 1.3 miles to the
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stated in the 2011 ROD that the changed location and size of the drill pad will result in
“similar” impacts, but it provides no explanation for this assertion anywhere in the
record. 228 Rather, the Corps undercuts this assertion elsewhere in the record by stating
that the proposed location for CD-5 in the 2004 Alpine Satellites EIS “was selected to
avoid the most valuable wetlands and minimize other adverse impacts,” but “it was later
moved by ConocoPhillips to optimize well production from the reservoir when better
geophysical information became available.”229
In its brief, ConocoPhillips offers a seven-page explanation for how the project
changes “were all minor and of no meaningful environmental consequence, fall within
the range of impacts previously considered or were included as mitigation measures
undertaken to reduce impacts below levels identified in the EIS.”230 However, as the
Kunaknana Plaintiffs correctly point out in their reply, this Court “may not accept . . .
west.”); cf. A.R. 6868 (2011 ROD) (“Impacts to the Nigliagvik Channel were not addressed in
the FEIS . . . .”).
228
See Docket 146 at 17 n.39 (Kunaknana Pls.’ Reply) (“While the Corps notes that there ‘have
been some changes to the locations and sizes of the drill pad [and] the impacts that will result
from the project are similar,’ it offers no actual analysis to show that the impacts will be
similar.”).
229
See A.R. 5766–67 (9/23/11 Corps Memorandum for Record); see also A.R. 6781 (2011
ROD) (“The CD-5 drill pad was relocated 1.3 miles to the west of the site originally identified in
the FEIS for several reasons. According to ConocoPhillips, the new location will enable better
access to the CD-5 reservoir to the west and south. Wells in the new location will have lower
angles thus less risk of having problems during well service and maintenance operations.
Additionally, the size of the CD-5 drill pad has increased to accommodate an increase in the
proposed number of wells and additional surface infrastructure.”).
230
See Docket 129 at 45–52 (ConocoPhillips Opp’n). Similarly, ASRC and Kuukpik point out
that the location of the Nigliq Channel bridge was changed to ameliorate the Nuiqsut
community’s environmental and subsistence concerns. See Docket 140 at 15 (ASRC Opp’n);
Docket 141 at 18 (Kuukpik Opp’n).
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post hoc rationalizations for agency action.” 231 Rather, “an agency’s action must be
upheld, if at all, on the basis articulated by the agency itself.” 232 And after carefully
reviewing the record in this case, the Court finds that the Corps failed to articulate a
satisfactory explanation, founded on a reasoned evaluation of the relevant factors, for
its decision to forego preparation of an SEIS to address changes to the CD-5 project.
The Court concludes, therefore, that the Corps’ decision was arbitrary. 233
B. New Information.
The Kunaknana Plaintiffs next assert that the Corps was required to conduct a
supplemental NEPA analysis, or at least to make a reasoned decision whether
supplementation was required, because new information has been generated since the
2004 Alpine Satellites EIS. 234 The Kunaknana Plaintiffs point to two categories of “new
information.” First, they point to documents cited in the 2011 ROD that post-date the
2004 Alpine Satellites EIS. 235 Second, they point to “new information about the impacts
of climate change on the project.”236 The Court will analyze these two categories of
new information in turn.
231
See Docket 146 at 18 n.46 (Kunaknana Pls.’ Reply) (quoting Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983)).
232
Motor Vehicle Mfrs. Ass’n, 463 U.S. at 50.
233
The Court expresses no opinion at this time about whether an SEIS is necessary.
234
Docket 108 at 41 (Kunaknana Pls.’ Mot. for Summ. J.).
235
Docket 108 at 42–43 (Kunaknana Pls.’ Mot. for Summ. J.).
236
Docket 108 at 43–46 (Kunaknana Pls.’ Mot. for Summ. J.).
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i.
Documents Cited in the 2011 ROD that Post-Date the 2004 Alpine Satellites
EIS.
The Kunaknana Plaintiffs assert that the 2011 ROD “relies upon several post-
Alpine Satellites EIS documents, reports, and studies that are all new information,” and
that “there is no indication in the record that the Corps ever analyzed the significance of
th[is] new information . . . despite the Corps’ reliance on the documents in the decisionmaking process.”237 The Corps certainly had knowledge of the post-2004 documents it
cited in the 2011 ROD, and under NEPA it had a “continuing duty to . . . evaluate new
information relevant to the environmental impact of its actions.”238 Accordingly, the
Court finds that issue exhaustion does not preclude the Kunaknana Plaintiffs from
arguing in this appeal that those documents that are cited in the 2011 ROD constitute
new information that the Corps failed to adequately evaluate under NEPA.
In their briefing, the Kunaknana Plaintiffs list eleven post-2004 documents cited
in the 2011 ROD, including certain information provided by ConocoPhillips and other
entities after the administrative remand of the 2010 permit decision. 239 And yet the
2011 ROD contains only the conclusory statement that “there are not significant new
circumstances or information relevant to environmental concerns and bearing on the
proposal or impacts.” 240
237
Docket 108 at 42–43 (Kunaknana Pls.’ Mot. for Summ. J.).
238
See Friends of the Clearwater v. Dombeck, 222 F.3d 552, 559 (9th Cir. 2000) (quoting Warm
Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1023 (9th Cir. 1980)).
239
See Docket 108 at 42–43 (Kunaknana Pls.’ Mot. for Summ. J.).
240
A.R. 6899 (2011 ROD); see also A.R. 6814, 6816, 6837–38 (2011 ROD).
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In their briefing, the Corps and ConocoPhillips assert that the Kunaknana
Plaintiffs have failed to demonstrate that any of the post-2004 documents cited in the
2011 ROD contain significant new information necessitating an SEIS. 241 However, it is
not the Plaintiffs’ duty to assess the significance of the post-2004 information. Rather,
when provided with this new information, it was the Corps’ duty to “consider it, evaluate
it, and make a reasoned determination whether it [wa]s of such significance as to
require [an SEIS].” 242
The Kunaknana Plaintiffs maintain that the Corps’ conclusory statement that
there is no significant new information is at odds with the Corps’ express reliance on
post-2004 information in making its LEDPA determination. 243 In the 2011 ROD, the
Corps explained that the new information provided by ConocoPhillips and others postremand caused the Corps to modify its LEDPA determination from the HDD alternative
to the bridges, 244 a fact the Corps and ConocoPhillips recognize in their briefing on that
241
Docket 131 at 38 n.6 (Corps Opp’n); Docket 129 at 55 (ConocoPhillips Opp’n).
242
See Friends of the Clearwater, 222 F.3d at 558 (second alteration in original) (quoting Warm
Springs Dam Task Force, 621 F.2d at 1024).
243
See Docket 146 at 25 (Kunaknana Pls.’ Reply) (“[A]bsent from the Corps’ review is a
discussion of why th[e] information that played a decisive role in the [LEDPA determination] is
not significant and warrants a supplemental NEPA analysis. The Corps and [ConocoPhillips]
simply cannot have it both ways. They cannot assert on the one hand that there was significant
new information that supports the Corps’ finding that HDD is not the LEDPA, and then argue
that the information was minor, not significant and did not trigger any NEPA obligations.”
(internal quotation marks omitted)).
244
See, e.g., A.R. 6787 (2011 ROD) (“A complete design analysis of the logistics for the HDD
alternative was submitted by [ConocoPhillips] on June 24, 2011.”); A.R. 6773 (2011 ROD)
(“During the remand information presented by ConocoPhillips, the [State Pipeline Coordinator’s
Office Chief Pipeline Engineer], and the Federal Joint Pipeline Coordinator’s Office . . . led me
to reconsider the environmental consequences associated with the roadless scenario that had
been previously determined to be a potential LEDPA.”).
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topic. 245 Accordingly, the Court agrees with the Kunaknana Plaintiffs that absent a
reasoned explanation in the record, the Corps’ decision to rely on certain post-2004
studies and information in evaluating the LEDPA for ConocoPhillips’s CD-5 proposal
under the CWA, while at the same time summarily disclaiming the significance of that
information for NEPA purposes, was arbitrary. 246
ii.
New Information About the Impacts of Climate Change on CD-5.
The 2004 Alpine Satellites EIS contains a short, general discussion of climate
change. 247 With respect to potential impacts from climate change on the development
of CD-3 through CD-7, it notes that an increase in mean surface temperature could
shorten the ice road season. 248 Additionally, it states:
Future climate changes could potentially affect a number of meteorological
conditions in coastal regions such as the North Slope. These conditions
include frequency and intensity of storms, storm surges, and flooding.
Changes in weather patterns could potentially result in a greater frequency
of stronger storms. Melting ice reserves, and subsequent changes in
245
Docket 131 at 20 (Corps Opp’n) (“The Corps concluded that this new information played a
decisive role in its [LEDPA] determination . . . .”); Docket 129 at 32 (ConocoPhillips Opp’n)
(stating critical factor that led the Corps to reconsider whether ConocoPhillips’s proposal was
the LEDPA was “substantial new information . . . presented by federal, state and local agencies,
Native Alaskan interests, and [ConocoPhillips]”). In its brief, the State of Alaska provides a
detailed overview of the “additional expert opinions and analyses” it submitted to the Corps
following the administrative remand. See Docket 142 at 10–25 (State of Alaska Opp’n). But the
State then maintains that nothing it submitted “would constitute significant new information for
purposes of [NEPA].” See Docket 142 at 10 n.19.
246
ConocoPhillips offers some explanation in its brief for why it believes the post-2004
documents cited in the 2011 ROD did not warrant preparation of an SEIS. See Docket 129 at
55–56 (ConocoPhillips Opp’n). However, as explained in the preceding section, the Court
cannot rely on post-hoc rationalizations to affirm the Corps’ decision. See supra notes 231–32
and accompanying text.
247
See A.R. 490–93 (2004 Alpine Satellites EIS).
248
A.R. 493 (2004 Alpine Satellites EIS).
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mean sea level, could potentially increase the frequency of storm surges
of a given height. Rising river and sea levels from climate change could
also result in increased frequency and intensity of flooding. Although
there has been no evidence to correlate an increase in storm activity with
climate change, studies continue to investigate the potential role that
climate change may have on future meteorological conditions. 249
The Kunaknana Plaintiffs assert that “[b]etween 2004 and 2011, a considerable
body of science developed regarding the impacts of climate change on the Arctic,” but
the Corps failed to make a reasoned determination of the significance of this information
to CD-5, instead providing only “a handful of cursory statements about the risks from
climate change.” 250
a. ConocoPhillips’s Motion to Strike Kunaknana Plaintiffs’ Extra-Record
Summary Judgment Exhibits.
The bulk of the new information about the impacts of climate change that the
Kunaknana Plaintiffs assert the Corps failed to consider is not in the agency record;
instead, it is presented to the Court in the form of five publicly available reports
concerning climate change attached as exhibits to the Kunaknana Plaintiffs’ summary
judgment brief. 251 ConocoPhillips has moved to strike these extra-record reports. 252
249
A.R. 493 (2004 Alpine Satellites EIS).
250
Docket 108 at 43–44 (Kunaknana Pls.’ Mot. for Summ. J.).
251
See Docket 109 at 2–3 (Bostrom Decl. in Supp. of Kunaknana Pls.’ Mot for Summ. J.);
Dockets 109-2 – 109-7 (Exs. 1–5 to Kunaknana Pls.’ Mot. for Summ. J.). In their summary
judgment motion, the Kunaknana Plaintiffs assert the Court should consider the reports because
they are demonstrative of the “substantial body” of post-2004 information concerning climate
change that the Corps should have considered in a supplemental NEPA analysis. Docket 108
at 45 n.254 (Kunaknana Pls.’ Mot. for Summ. J.).
252
See Docket 126 at 5 (ConocoPhillips Mot. to Strike). Intervenor-Defendants ASRC, State of
Alaska, and Kuukpik joined in this motion at Dockets 132, 133, and 134, respectively.
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“Generally, judicial review of an agency decision [under the APA] is limited to the
administrative record on which the agency based the challenged decision.”253 In their
opposition to ConocoPhillips’s motion to strike, the Kunaknana Plaintiffs assert that the
climate change reports fit under an exception to this rule “that allows the court to
consider extra-record documents where it needs to determine whether the agency has
considered all relevant factors and has explained its decision.”254 However, the extrarecord climate change reports are not necessary to determine whether the Corps
provided an adequate explanation in the record for its decision not to prepare an
SEIS, 255 which is the only issue the Court is deciding at this time.
Therefore,
ConocoPhillips’s motion to strike Exhibits 1–5 to the Kunaknana Plaintiffs’ summary
judgment brief will be granted. 256
b. Issue Exhaustion.
With respect to new information concerning climate change, the Corps makes an
issue exhaustion argument. The Corps asserts that the Kunaknana Plaintiffs “fail to
show that anyone ever contended that new climate change information required
253
Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010).
254
Docket 137 at 5 (Kunaknana Pls.’ Opp’n to Mot. to Strike) (citing Sw. Ctr. for Biological
Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996)).
255
Cf. supra Discussion Part II (explaining how reviewing court must look to agency record to
determine whether agency articulated rational explanation for its action).
256
In the same motion, filed in Kunaknana, et al. v. U.S. Army Corps of Engineers, et al., Case
No. 3:13-cv-00044, ConocoPhillips also moved to strike Exhibit 5 to CBD’s motion for summary
judgment. Docket 126 at 4–5 (ConocoPhillips Mot. to Strike). Because the Court is dismissing
the action filed by CBD for lack of standing, this request will also be granted.
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supplementation of the Alpine EIS.” 257 It maintains that absent such a showing, “the
Court should not consider the contention that this new information required
supplementation of the Alpine EIS.”258
The Kunaknana Plaintiffs assert that “EPA alerted the Corps to post-2004
information pertaining to climate change and impacts to the Arctic and recommended
that the Corps analyze the project in light of that new information.” 259 They cite to a
portion of a five-page letter dated June 9, 2009 from EPA to the Corps 260:
We remain particularly concerned about the potential adverse impacts to
the regional surface hydrology within the Nigliq Channel and [Colville
River Delta] that may be caused by the bridge and road especially during
flood events. The Scenarios Network for Alaska Planning has predicted
changes in temperature, precipitation, and season length (thaw to freeze
up) using General Circulation models utilized by the Intergovernmental
Panel on Climate Change for future climate scenarios. It is prudent to
analyze this project in light of these predicted changes with respect to the
potential for increased frequency of extreme events. 261
The Kunaknana Plaintiffs also cite to a letter dated September 9, 2009 from EPA to the
Corps. 262 Like the EPA’s June 2009 letter, that letter states that a certain surface water
257
Docket 131 at 40 (Corps Opp’n) (citation omitted).
258
Docket 131 at 40 (Corps Opp’n).
259
Docket 146 at 30 (Kunaknana Pls.’ Reply).
260
Docket 146 at 30 & n.110 (Kunaknana Pls.’ Reply) (citing A.R. 4081 (6/09/09 Letter from
EPA to Corps)).
261
A.R. 4081 (6/09/09 Letter from EPA to Corps). In the Kunaknana Plaintiffs’ response to
ConocoPhillips’s motion to strike, they indicate that the Scenarios Network for Alaska Planning
document referenced by EPA is Exhibit 2 to their summary judgment brief. See Docket 137 at
8–9 n.31 (Kunaknana Pls.’ Opp’n to Mot. to Strike). The document is not included in the record.
262
Docket 108 at 44 (Kunaknana Pls.’ Mot. for Summ. J.) (citing A.R. 4591 (9/09/09 Letter from
EPA to Corps)).
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model “does not predict changes in hydrology patterns that are likely to result from
future climate change scenarios.”263
Additionally, the Kunaknana Plaintiffs assert the Corps “acknowledged in [the
2011 ROD] that there was new information on climate change that arose after issuance
of the 2004 EIS, indicating it was cognizant of the issue and thereby waiving any [issue]
exhaustion argument.”264 They cite to a portion of the 2011 ROD that states: “Changes
that have occurred [since the 2004 Alpine Satellites EIS] include the listing of critical
habitat for polar bear, climate change, and future development.” 265 However, it is not
clear whether this sentence means that new climate change information has been
generated since 2004 regarding the CD-5 project or that the climate has changed since
2004.
In the 2011 ROD, the Corps discussed the ways that climate change may impact
the CD-5 project:
263
A.R. 4591. After independently reviewing the record, this Court has found one other
document potentially alerting the Corps to new information concerning climate change: a letter
dated June 12, 2009 from environmental groups and individuals to the Corps. See A.R. 9521
(6/12/09 Letter from Environmental Groups to Corps). The letter states that “[t]here is
substantial new information about current global climate change impacts that are already
stressing fish, wildlife, subsistence and which would be a major factor in the integrity of the
project facilities and their impacts over the life of the proposed project.” A.R. 9523 (6/12/09
Letter from Environmental Groups to Corps). As examples of climate change impacts that could
affect the project, the letter points to the loss of Beaufort Sea ice and ocean acidification, and it
cites two 2009 articles concerning those impacts. A.R. 9523, 9530 (6/12/09 Letter from
Environmental Groups to Corps). The cited articles are not among the exhibits to the
Kunaknana Plaintiffs’ motion for summary judgment, and the articles themselves are not
included in the record.
264
Docket 146 at 30 n.110 (Kunaknana Pls.’ Reply) (citing A.R. 6899 (2011 ROD)); cf. supra
notes 199–200 and accompanying text (explaining “so obvious” exception to issue exhaustion
rule).
265
A.R. 6899 (2011 ROD).
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All of the CD-5 alternatives could be affected by climate change in the
form of increased global ambient temperature, increased snowfall, sea
level rise, effects of hydrologic changes due to more rapid snowmelt and
increased water levels during spring break up. Melting permafrost and
thermokarsting could cause additional gravel fill requirements for all of the
project alternatives. 266
The Corps also provided a brief analysis of how climate change might affect each of the
analyzed alternatives in the 2011 ROD. 267 However, whether the Corps was aware of
and considered post-2004 information in this analysis is unclear.
“[T]here is no bright-line standard” for determining when an issue has been
raised before an agency with clarity sufficient to allow a plaintiff to overcome the issue
exhaustion bar. 268
The portions of EPA’s letters cited by the Kunaknana Plaintiffs
appear to be more of a critique of the hydrology analysis in the record than an effort to
apprise the Corps of new information concerning climate change that might necessitate
a supplemental NEPA analysis. 269 And the Kunaknana Plaintiffs have not pointed to
any place in the 2011 ROD clearly demonstrating that the Corps had independent
knowledge of certain new climate change information that might necessitate a
supplemental NEPA analysis for CD-5. At the same time, however, it is clear from the
266
A.R. 6887 (2011 ROD).
267
See A.R. 6887–89 (2011 ROD).
268
See Great Basin Mine Watch v. Hankins, 456 F.3d 955, 968 (9th Cir. 2006) (quoting Idaho
Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 965 (9th Cir. 2002)).
269
Cf. A.R. 6808 (2011 ROD) (responding to EPA’s letters). With respect to NEPA
supplementation, it appears the Corps interpreted the letters from EPA and the environmental
groups to argue only that changes to the project required a supplemental NEPA analysis. See
A.R. 6811, 6837–38 (2011 ROD) (responding to EPA’s and environmental groups’ letters).
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2011 ROD that the Corps was aware that climate change might alter the environmental
impact of CD-5.
Rather than resolve the issue exhaustion question at this time, the Court has
decided that whether, and to what extent, the Corps should evaluate post-2004 climate
change information is better determined after further briefing from the parties on the
appropriate remedy for the Corps’ failure to adequately explain its decision not to
prepare an SEIS for CD-5 to address changes to the project as well as new information
relied upon in the 2011 ROD.
V.
Claim 2: Violation of CWA.
To decide the Kunaknana Plaintiffs’ CWA claim at this time would be premature.
NEPA procedures are designed to ensure the agency and the public have an
opportunity to consider all of the relevant environmental information “before decisions
are made and before actions are taken.”270 Thus, the Court will not determine whether
the Corps’ decision to issue the Section 404 permit to ConocoPhillips violated the CWA
until after the Kunaknana Plaintiffs’ NEPA claim has been resolved.
VI.
Remedy.
In its brief, ConocoPhillips requests that if the Court rules in favor of Plaintiffs on
any of their claims, the Court allow the parties to provide additional briefing on what
would be an appropriate remedy. 271 The Court agrees with ConocoPhillips that further
briefing from the parties at this juncture could be of assistance to the Court.
270
See 40 C.F.R. § 1500.1(b); see also supra Facts Part I.B (discussing NEPA’s purpose).
271
Docket 129 at 56–57 (ConocoPhillips Opp’n).
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CONCLUSION
For the foregoing reasons, the Court hereby ORDERS as follows:
1. Center for Biological Diversity v. U.S. Army Corps of Engineers, et al., Case
No. 3:13-cv-00095-SLG, is DISMISSED with prejudice because Plaintiff
Center for Biological Diversity lacks Article III standing.
2. With respect to filings made in Kunaknana, et al. v. U.S. Army Corps of
Engineers, et al., Case No. 3:13-cv-00044, the Court ORDERS as follows:
a. The Center for Biological Diversity’s Motion for Summary Judgment at
Docket 106 is DENIED as moot. 272
b. ConocoPhillips’s Consolidated Motion to Strike Plaintiffs’ Extra-Record
Summary Judgment Exhibits at Docket 126, and the joinders at
Dockets 132, 133, and 134, are GRANTED. 273 The Clerk of Court
shall strike from the record Exhibit 5 to CBD’s Motion for Summary
Judgment, filed at Docket 106-6, and Exhibits 1–5 to the Kunaknana
Plaintiffs’ Motion for Summary Judgment, filed at Dockets 109-2 – 1097.
c. The Kunaknana Plaintiffs’ Motion for Summary Judgment at Docket
107 is GRANTED with respect to Plaintiffs’ NEPA claim as follows: the
Corps’ determination that a Supplemental Environmental Impact
272
The copy of this motion filed at Docket 42 in Center for Biological Diversity v. U.S. Army
Corps of Engineers, et al., Case No. 3:13-cv-00095, is also DENIED as moot.
273
The copy of ASRC’s joinder filed at Docket 44 in Center for Biological Diversity v. U.S. Army
Corps of Engineers, et al., Case No. 3:13-cv-00095, is also GRANTED.
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Statement was unnecessary was arbitrary and capricious because the
Corps failed to provide a reasoned explanation for that determination
that addressed the changes to the CD-5 project since the 2004
Environmental Impact Statement and the new information the Corps
relied upon in making its Least Environmentally Damaging Practicable
Alternative determination for purposes of Section 404 of the Clean
Water Act. ConocoPhillips’s Cross-Motion for Summary Judgment at
Docket 129 is DENIED with respect to this claim. The Court expresses
no opinion at this time whether the Corps is required to prepare a
Supplemental Environmental Impact Statement.
d. Within 21 days of the date of this Order, the parties in the Kunaknana
case shall file and serve, either jointly or separately, a motion(s) or
stipulation that proposes the further proceedings that should occur in
this matter.
DATED this 27th day of May, 2014, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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