Northern Alaska Environmental Center et al v. United States Department of the Interior et al

Filing 52

ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT: Plaintiffs' Motion for Summary Judgment at Docket 35 is DENIED; Intervenor-Defendant CPAI's Cross-Motion for Summary Judgment at Docket 46 is GRANTED; and Federal Defendants' Cross-Motion for Summary Judgment at Docket 47 is GRANTED. (See Order for details). Signed by Judge Sharon L. Gleason on 12/06/2018. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

NORTHERN ALASKA
ENVIRONMENTAL CENTER, et al.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF
THE INTERIOR, et al.,

Case No. 3:18-cv-00030-SLG

Defendants,
and
CONOCOPHILLIPS ALASKA, INC.,
Intervenor-Defendant.
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT
Before the Court at Docket 35 is Plaintiffs Northern Alaska Environmental Center,
Alaska Wilderness League, Defenders of Wildlife, the Sierra Club, and The Wilderness
Society’s

(“Plaintiffs”)

motion

for

summary

judgment.

Intervenor-Defendant

ConocoPhillips Alaska, Inc. (“CPAI”) filed an opposition and cross-motion for summary
judgment at Docket 46. Defendants United States Department of the Interior, United
States Bureau of Land Management, Ryan Zinke, and Brian Steed (“Federal
Defendants”) filed an opposition and cross-motion for summary judgment at Docket 47.
Plaintiffs replied at Docket 48. Oral argument was held on September 21, 2018, at
Anchorage, Alaska.

BACKGROUND
This case involves the 2017 lease sale for parcels in the National Petroleum
Reserve-Alaska (“NPR-A”). 1 The NPR-A is comprised of approximately 23 million acres. 2
It is governed by the Naval Petroleum Reserves Production Act of 1976 (“NPRPA”), 3
which requires the Secretary of the Interior to “conduct an expeditious program of
competitive leasing of oil and gas in the Reserve . . . .” 4
In November 2012, the Bureau of Land Management (“BLM”) issued a Final
Integrated Activity Plan/Environmental Impact Statement (“IAP/EIS”), which described
five alternatives for oil and gas leasing in the NPR-A. 5 In February 2013, the Secretary
of the Interior issued a Record of Decision (“ROD”), which adopted one of the five
alternatives and made “approximately 11.8 million acres available for oil and gas
leasing.” 6
On June 28, 2017, BLM issued a call for nominations and comments for its 2017
lease sale. 7 BLM completed a Determination of NEPA Adequacy (“DNA”) on September

1

A related case, Natural Res. Def. Council, et al. v. Zinke, et al., 3:18-cv-00031-SLG, was filed
the same day.

2

See Administrative Record (“AR”) 0015.

3

42 U.S.C. §§ 6501–08.

4

42 U.S.C. § 6506a(a).

5

See AR 0002–09 (IAP/EIS).

6

AR 3417 (ROD); see also AR 3420–28 (ROD section describing the Secretary’s decision).

7

See AR 3579 (Call for Nominations and Comments for 2017 Lease Sale).

Case No. 3:18-cv-00030-SLG, NAEC, et al. v. US Dep’t of the Interior, et al.
Order re Cross-Motions for Summary Judgment
Page 2 of 12

26, 2017. 8 On December 6, 2017, BLM held the 2017 lease sale. 9 BLM offered 900
tracts comprising approximately 10.3 million acres of the 11.8 million acres identified in
the 2013 ROD, of which seven tracts, comprising approximately 80,000 acres, received
bids. 10 On February 22, 2018, BLM completed a revised DNA. 11 BLM issued leases for
the seven tracts on February 23, 2018. 12
On February 2, 2018, prior to the issuance of the leases from the 2017 lease sale,
Plaintiffs filed their Complaint in this action. 13 Plaintiffs filed an Amended Complaint on
May 21, 2018. 14 Plaintiffs’ Amended Complaint pleads three causes of action: The First
Cause of Action alleges that BLM violated the National Environmental Protection Act
(“NEPA”), its implementing regulations, and the Administrative Procedure Act (“APA”) 15
when it held “the lease sale [and issued the leases] without first preparing an EIS or EA.” 16
The Second Cause of Action alleges that BLM violated NEPA, its implementing
regulations, and the APA 17 when it held “the 2017 lease sale without first conducting an

8

See AR 9513–9516.

9

See AR 9711 (2017 Lease Sale Results Summary).

10

See AR 9711 (2017 Lease Sale Results Summary).

11

See AR 9723–31.

12

See AR 9767 (2017 Lease Decision).

13

See generally Docket 1 (Complaint).

14

See generally Docket 32 (Amended Complaint).

15

See Docket 32 at 15–16, ¶¶ 54–60; 42 U.S.C. § 4332(2)(C) [sic]; 40 C.F.R. §§ 1501.4,
1502.1, .14, .16, 1508.7; 5 U.S.C. § 706(2).

16

Docket 32 (Amended Complaint) at 16, ¶ 60.

17

See Docket 32 at 16–17, ¶¶ 61–67; 42 U.S.C. § 4332(C)(i); 40 C.F.R. § 1508.7; 5 U.S.C. §
706(2).

Case No. 3:18-cv-00030-SLG, NAEC, et al. v. US Dep’t of the Interior, et al.
Order re Cross-Motions for Summary Judgment
Page 3 of 12

adequate assessment of the direct, indirect, and cumulative impacts . . . .” 18 The Third
Cause of Action alleges that BLM violated its own regulations and the APA 19 when it
“issu[ed] a revised DNA after it had already conducted the 2017 lease sale.”20
LEGAL STANDARD
The Court reviews “BLM’s compliance with NEPA under the [APA’s] deferential
‘arbitrary and capricious’ standard[.]” 21 “[W]hen an agency complies in good faith with the
requirements of NEPA and issues an EIS indicating that the agency has taken a hard
look at the pertinent environmental questions, its decision should be afforded great
deference.”22
“Once an agency has taken a ‘hard look’ at ‘every significant aspect of the
environmental impact’ of a proposed major federal action, . . . it is not required to repeat
its analysis simply because the agency makes subsequent discretionary choices in
implementing the program.”23 “So long as the impacts of the steps that the agency takes
were contemplated and analyzed by the earlier NEPA analysis, the agency need not
supplement the original EIS or make a new assessment.”24

18

Docket 32 at 17, ¶ 67.

19

See Docket 32 at 17–18, ¶¶ 68–71; 43 C.F.R. § 3131.2(b); 5 U.S.C. § 706(2).

20

Docket 32 at 18, ¶ 70.

21

Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 623 F.3d 633, 641 (9th Cir. 2010) (citing 5
U.S.C. § 706(2)(A)).

22

N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 977 (9th Cir. 2006) (citing North Slope
Borough v. Andrus, 642 F.2d 589, 599 (D.C. Cir. 1980)).

23

Mayo v. Reynolds, 875 F.3d 11, 20–21 (D.C. Cir. 2017) (quoting Balt. Gas & Elec. Co. v.
Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)).
24

Mayo, 875 F.3d at 21.

Case No. 3:18-cv-00030-SLG, NAEC, et al. v. US Dep’t of the Interior, et al.
Order re Cross-Motions for Summary Judgment
Page 4 of 12

DISCUSSION
I. The Court may consider Plaintiffs’ Amended Complaint.
Federal Defendants argue that Plaintiffs’ claims should be dismissed “because
they filed their complaint before the leases were issued[.]” 25 Plaintiffs respond that the
Court has jurisdiction because they filed an Amended Complaint “after BLM issued the
leases.”26

The Ninth Circuit held in Northstar Financial Advisors, Inc. v. Schwab

Investments that a court may rely on an amended complaint that satisfies the jurisdictional
defects of the previous complaint. 27 Because Plaintiffs filed their Amended Complaint
after BLM issued the leases, dismissal on this basis is unwarranted.
II. BLM was not required to conduct an EIS or EA for the 2017 lease sale.
Plaintiffs assert that BLM violated NEPA by issuing leases without conducting an
EIS or EA. 28 Federal Defendants respond that the IAP/EIS is a sufficient environmental
analysis that covers the 2017 lease sale and that, in any event, the Revised DNA

25

Docket 47 at 28.

26

Docket 48 at 9.

27

779 F.3d 1036, 1043–48 (9th Cir. 2015). Federal Defendants rely on two older Ninth Circuit
opinions: Morongo Band of Mission Indians v. California State Bd. of Equalization, 858 F.2d
1376, 1380–81, 1386 (9th Cir. 1988) (holding that district court lacked subject matter jurisdiction
over original complaint and declining to look to amended complaint because “[s]ubject matter
jurisdiction must exist as of the time the action is commenced”) and Mamigonian v. Biggs, 710
F.3d 936, 941–42 (9th Cir. 2013) (raised by Federal Defendants at oral argument) (citing
Morongo in holding that district court lacked jurisdiction in immigration matter because no final
agency action had occurred at time of filing). In Northstar, the Ninth Circuit criticized the
“inflexibility suggested by” Morongo’s language and explained that “[a] rule that would turn on
the label attached to a pleading is difficult for us to accept.” Northstar, 779 F.3d at 1046, 1047.
Mamigonian involved little analysis beyond its citation to Morongo. Mamigonian, 710 F.3d at
941–42. The Court relies on the more recent precedent, Northstar, particularly in light of its
careful treatment of the legal and policy implications of this issue.
28

See Docket 36 (Memorandum in Support of Plaintiffs’ Motion for Summary Judgment) at 31.

Case No. 3:18-cv-00030-SLG, NAEC, et al. v. US Dep’t of the Interior, et al.
Order re Cross-Motions for Summary Judgment
Page 5 of 12

constituted sufficient supplemental environmental analysis. 29 Plaintiffs reply that the
Court should consider only the original DNA and view the 2017 lease sale and lease
issuances as major federal actions in and of themselves that require a new and site
specific EA or EIS. Plaintiffs maintain that the supplementation of the existing IAP/EIS at
this stage is insufficient. 30
The Ninth Circuit’s decision in Northern Alaska Environmental Center v.
Kempthorne controls here. 31 Kempthorne upheld the government’s leasing program in
the Northwest Planning Area (“NWPA”) of the NPR-A. The Court set out the factual
background as follows: “BLM published the Final EIS [(“FEIS”)] in December 2003 to open
parts of the NWPA to leasing. The FEIS adopted the Preferred Alternative of the draft
EIS, opening the BLM administered lands in the NWPA to leasing subject to certain
significant limitations.”32 “In assessing the environmental impact of the leasing program
for purposes of preparing the FEIS, the BLM had no way of knowing what, if any, areas
subsequent exploration would find most suitable for drilling. Thus, it did not do an analysis
of any specific parcels.” 33 However, “BLM did do an analysis of the possible effects of
drilling in the climatic environment of the region. That analysis projected two

29

See Docket 47 at 36–37. The parties disagree as to whether the Court may consider the
Revised DNA or must rely solely on the more cursory original DNA. The Court does not reach
this issue because, as discussed further below, Plaintiffs have not raised any claim challenging
the agency’s decision not to supplement the IAP/EIS, such that review of the DNA or Revised
DNA is not necessary to the Court’s determination.

30

See Docket 48 at 18.

31

457 F.3d 969 (9th Cir. 2006).

32

Kempthorne, 457 F.3d at 974.

33

Id.

Case No. 3:18-cv-00030-SLG, NAEC, et al. v. US Dep’t of the Interior, et al.
Order re Cross-Motions for Summary Judgment
Page 6 of 12

hypotheticals, representing each end of the available spectrum of possibilities.” 34
“Because [BLM’s] analysis was based upon hypothetical future projections of what might
be undertaken in the exploration and development phases, and was conducted on a
resource by resource basis, the EIS did not attempt to examine the impact on specific
parcels.” 35 In Kempthorne, at the same time that BLM completed the EIS, it offered
certain parcels for lease. The Ninth Circuit’s opinion indicates that 120 parcels had been
leased but “[n]o exploration had begun.” 36 The plaintiffs in that case alleged “that by not
undertaking a parcel by parcel analysis of the environmental consequences of projected
exploration and drilling [for the leased parcels], the BLM had failed to satisfy the NEPA
requirement of site specific analysis.” 37
The Circuit Court found “no question” that “approval of the leasing program
represents an irretrievable commitment of resources” requiring a NEPA analysis. 38 “The
issue,” the Circuit Court determined, was “whether [the approval of the leasing program]
was sufficiently site specific.”39 The Circuit Court observed that the facts in one of its prior
opinions, Conner v. Burford, were as follows:
Two types of leases were involved. One, the so called “no surface
occupancy” or “NSO” leases, forbid any use, or even occupancy of the
surface of the national forest land being leased, without BLM approval of
the specific, surface-disturbing activity the lessees planned to undertake.
34

Id.

35

Id.

36

Id.

37

Id.

38

Id. at 976.

39

Id.

Case No. 3:18-cv-00030-SLG, NAEC, et al. v. US Dep’t of the Interior, et al.
Order re Cross-Motions for Summary Judgment
Page 7 of 12

We held that such leases themselves involved no “irretrievable commitment
of resources” and no EIS was required at the leasing stage.
The second and more numerous type of leases in Conner were “non NSO”
leases. They authorized the lessees to undertake development subject to
government regulation of surface disturbing activities such as roads and
drilling. The government could not totally preclude such activities, however,
and for that reason we held an EIS was required for non NSO leases. 40
The Kempthorne Court determined the NWPA leases before it “are more like the ‘non
NSO leases’ in Conner,” because while BLM could “condition permits for drilling on
implementation of environmentally protective measures” and potentially deny them
outright if “mitigation measures are not available,” BLM could not “forbid all oil and gas
development in Alaska’s NWPA.” 41 Therefore, the Ninth Circuit held that the NWPA
leasing program “constitute[d] an irretrievable commitment of resources. An EIS is
undeniably required, and, indeed one has been prepared.” 42
The Kempthorne Court defined the remaining question as whether “the EIS is
insufficient because it does not undertake a parcel by parcel analysis of surfaces that will
eventually be explored and developed.” The Ninth Circuit found Conner to be “of no
assistance to plaintiffs, for we did not discuss the degree of site specificity required in the
EIS. The only question was whether one had to be completed at all.” 43
The Ninth Circuit highlighted the “uncertainty” that exists in the early stages of oil
and gas development, and determined that “when an agency complies in good faith with

40

Id. (citing Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988)).

41

Id.

42

Id.

43

Id.

Case No. 3:18-cv-00030-SLG, NAEC, et al. v. US Dep’t of the Interior, et al.
Order re Cross-Motions for Summary Judgment
Page 8 of 12

the requirements of NEPA and issues an EIS indicating that the agency has taken a hard
look at the pertinent environmental questions, its decision should be afforded great
deference.”44

Therefore, the Circuit Court held that although a parcel-specific EIS

analysis had not yet been undertaken for the leased areas, there was “no basis for holding
that the analysis in the EIS was arbitrary, capricious, or done in bad faith.” 45
The Kempthorne Court recognized that a parcel-specific EIS analysis would be
required before any actual exploration or development activity could occur on a leased
parcel. 46 It emphasized that “[a]ny later plan for actual exploration by lessees will be
subject to a period of review before being accepted, rejected or modified by the
Secretary.” 47

And the Court recognized that “Plaintiffs will have an opportunity to

comment on any later EIS. In addition, before any activity for exploration or development
occurs, permits from several agencies may be required and additional permit conditions
imposed for the protection of land, water and wildlife resources.”48
This case is similar to Kempthorne. As in Kempthorne, in this case BLM prepared
a programmatic IAP/EIS; Plaintiffs do not assert here that the IAP/EIS failed to take a
hard look at the environmental consequences of oil leasing, exploration, and development
in the NPR-A. 49

And as in Kempthorne, BLM here produced its IAP/EIS despite

44

Id. at 977 (citing North Slope Borough v. Andrus, 642 F.2d 589, 599 (D.C. Cir. 1980)).

45

Kempthorne, 457 F.3d at 977.

46

Id.

47

Id. (citing 43 C.F.R. § 3162.3–1(c)).

48

Kempthorne, 457 F.3d at 977 (citing 43 C.F.R. § 3162.3–1(c)).

49

See, e.g., AR 581–83 (Assumptions of the IAP/EIS). If Plaintiffs had sought to assert that the
IAP/EIS failed to take a hard look at the environmental consequences of oil leasing, exploration,

Case No. 3:18-cv-00030-SLG, NAEC, et al. v. US Dep’t of the Interior, et al.
Order re Cross-Motions for Summary Judgment
Page 9 of 12

uncertainty as to the scope of potential oil and gas exploration and extraction activity.
And as in Kempthorne, the federal government has entered into “non-NSO leases”
without preparing a parcel-specific analysis for each lease. 50 In Kempthorne, the Ninth
Circuit upheld the issuance of leases prior to a site specific analysis of each leased
parcel. 51 In that respect, Kempthorne is controlling.
A primary distinction between Kempthorne and this case is that the leases in
Kempthorne were issued promptly after the completion of the FEIS. The 2017 lease sale

and development in the NPR-A, they would have been required to bring their claim within the
60-day within the NPRPA’s 60-day time frame for instituting a NEPA challenge to an EIS. See
42 U.S.C. § 6506a(n)(1) (“Any action seeking judicial review of the adequacy of any program or
site-specific environmental impact statement under section 102 of the National Environmental
Policy Act of 1969 (42 U.S.C. [§] 4332) concerning oil and gas leasing in the National Petroleum
Reserve—Alaska shall be barred unless brought in the appropriate District Court within 60 days
after notice of the availability of such statement is published in the Federal Register.”). The
notice of availability for the IAP/EIS was published in the Federal Register on December 28,
2012. See 77 Fed. Reg. 76,515, (Dec. 28, 2012). February 26, 2013 marked 60 days from the
publication date. Plaintiffs did not assert a challenge to the adequacy of the IAP/EIS by that
date.
50

Plaintiffs seek to distinguish Kempthorne by maintaining the leases in Kempthorne are more
similar to NSO leases than the leases in the present case. See Docket 48 at 15–16 (citations,
quotation marks, and brackets omitted) (“Although the court in Kempthorne stated the leasing
program as a whole was an irretrievable commitment of resources in the sense that BLM could
not forbid all oil and gas activities in the northwest area because of the statutory requirement to
conduct oil and gas, the court also assumed BLM could deny a specific application altogether if
a particularly sensitive area is sought to be developed and mitigation measures are not
available. Here, BLM does not assert that it has retained the authority to prohibit or deny later
applications for activities outright. Because BLM gave up its absolute ability to prohibit
potentially significant impacts by issuing non-NSO leases, BLM was required to conduct a
thorough NEPA analysis to determine whether the sale would have a substantial environmental
impact.”). However, 43 C.F.R. § 3162.3–1(c) applies in each case, and requires the lessee or
operating rights owner to “submit to the authorized officer for approval an Application for Permit
to Drill for each well. No drilling operations, nor surface disturbance preliminary thereto, may be
commenced prior to the authorized officer's approval of the permit.” The Kempthorne Court
relied on the regulation in holding that “[a]ny later plan for actual exploration by lessees will be
subject to a period of review before being accepted, rejected or modified by the Secretary.” See
Kempthorne, 457 F.3d at 977 (citing 43 C.F.R. § 3162.3–1(c)).

51

Kempthorne, 457 F.3d at 977.

Case No. 3:18-cv-00030-SLG, NAEC, et al. v. US Dep’t of the Interior, et al.
Order re Cross-Motions for Summary Judgment
Page 10 of 12

at issue in this case occurred several years after the completion of the IAP/EIS. This
raises the question of whether the IAP/EIS adequately addresses the 2017 lease sale in
light of new circumstances. NEPA’s implementing regulations do require that “[a]gencies
. . . [s]hall prepare supplements to either draft or final environmental impact statements if
. . . [t]here are significant new circumstances or information relevant to environmental
concerns and bearing on the proposed action or its impacts.” 52 As with “the decision
whether to prepare an EIS in the first instance,” an agency must supplement an EIS “[i]f
there remains ‘major Federal actio[n]’ to occur, and if the new information is sufficient to
show that the remaining action will ‘affec[t] the quality of the human environment’ in a
significant manner or to a significant extent not already considered[.]” 53 Plaintiffs have
not asserted that a supplemental EIS is necessary in this case; rather, they maintain an
entirely new EA or EIS is required. 54 As such, Plaintiffs have waived any potential
supplementation claims by failing to assert them in their Amended Complaint.

52

40 C.F.R. § 1502.9(c)(ii).

53

Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 374 (1989) (quoting 42 U.S.C. §
4332(2)(C)).
54

See generally Docket 32; see also Docket 48 at 18 (citations omitted) (“BLM and CPAI are
mistaken in arguing the Court should apply the standards applicable to supplemental EISs
(SEIS). This case is not challenging the content of the IAP, and Northern Center is not arguing
that BLM needs to prepare a supplemental NEPA analysis for the IAP. BLM’s obligation to
supplement the IAP EIS is not at issue.”). The Court does not need to reach the issue.
However, supplementation would likely have been unnecessary. See Mayo v. Reynolds, 875
F.3d 11, 20–21 (D.C. Cir. 2017) (holding that EIS took sufficient hard look at environmental
consequences such that annual approvals of hunting under that EIS did not require
supplementation); Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 508–09,
513 (D.C. Cir. 2010) (holding that supplementation of EIS would not have been required had
final EIS underestimated the number of drilled wells, and holding that two nascent development
projects were at sufficiently early stage such that no cumulative impacts analysis was required).

Case No. 3:18-cv-00030-SLG, NAEC, et al. v. US Dep’t of the Interior, et al.
Order re Cross-Motions for Summary Judgment
Page 11 of 12

For the foregoing reasons, the Court will deny summary judgment to Plaintiffs and
grant summary judgment to CPAI and Federal Defendants.
CONCLUSION
In light of the foregoing, Plaintiffs’ Motion for Summary Judgment at Docket 35 is
DENIED; Intervenor-Defendant CPAI’s Cross-Motion for Summary Judgment at Docket
46 is GRANTED; and Federal Defendants’ Cross-Motion for Summary Judgment at
Docket 47 is GRANTED.
The Clerk of Court is directed to enter a final judgment accordingly.

DATED this 6th day of December, 2018 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

Case No. 3:18-cv-00030-SLG, NAEC, et al. v. US Dep’t of the Interior, et al.
Order re Cross-Motions for Summary Judgment
Page 12 of 12