642 F.2d 589 (D.C. Cir. 1980), 80-1190, North Slope Borough v. Andrus

Docket Nº:and 80-1190 to 80-1192.
Citation:642 F.2d 589
Party Name:Envtl. NORTH SLOPE BOROUGH et al. v. Cecil D. ANDRUS, Secretary of the Department of the Interior, et al. Atlantic Richfield Company et al., Intervenors, Appellants. NATIONAL WILDLIFE FEDERATION et al. v. Cecil D. ANDRUS, Secretary of the Department of the Interior, et al. Atlantic Richfield Company et al., Intervenors, Appellants. VILLAGE OF KAKTO
Case Date:October 09, 1980
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 589

642 F.2d 589 (D.C. Cir. 1980)

Envtl.

NORTH SLOPE BOROUGH et al.

v.

Cecil D. ANDRUS, Secretary of the Department of the Interior, et al.

Atlantic Richfield Company et al., Intervenors, Appellants.

NATIONAL WILDLIFE FEDERATION et al.

v.

Cecil D. ANDRUS, Secretary of the Department of the Interior, et al.

Atlantic Richfield Company et al., Intervenors, Appellants.

VILLAGE OF KAKTOVIK et al.

v.

Cecil D. ANDRUS, Secretary of the Department of the Interior, et al.

Atlantic Richfield Company et al., Intervenors, Appellants.

NORTH SLOPE BOROUGH et al., Appellants,

v.

Cecil D. ANDRUS, Secretary of the Department of the Interior, et al.

NATIONAL WILDLIFE FEDERATION et al., Appellants,

v.

Cecil D. ANDRUS, Secretary of the Department of the Interior, et al.

VILLAGE OF KAKTOVIK et al., Appellants,

v.

Cecil D. ANDRUS, Secretary of the Department of the Interior, et al.

NORTH SLOPE BOROUGH et al.

v.

Cecil D. ANDRUS, Secretary of the Department of the

Interior, Richard Frank, Administrator of the

National Oceanic and Atmospheric

Administration, Appellants,

Atlantic Richfield Co. et al., Intervenors.

NATIONAL WILDLIFE FEDERATION et al.

v.

Cecil D. ANDRUS, Secretary of the Department of the

Interior, Richard A. Frank, Administrator of the

National Oceanic and Atmospheric

Administration, Appellants,

Atlantic Richfield Company et al., Intervenors.

VILLAGE OF KAKTOVIK et al.

v.

Cecil D. ANDRUS, Secretary of the Department of the

Interior, Richard Frank, Administrator of the

National Oceanic and Atmospheric

Administration, Appellants,

Atlantic Richfield Company et al., Intervenors.

Nos. 80-1148, 80-1150, 80-1151, 80-1164, 80-1169, 80-1184

and 80-1190 to 80-1192.

United States Court of Appeals, District of Columbia Circuit

October 9, 1980

Rehearing Denied 19 Nov. 1980.

Page 590

[Copyrighted Material Omitted]

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Bruce J. Terris, Washington, D. C., with whom Edward Comer and James M. Hecker, Washington, D. C., were on the brief for North Slope Borough, et al., cross-appellants in No. 80-1164 and appellee in Nos. 80-1148, 80-1150, 80-1151, 80-1169, 80-1184, 80-1190, 80-1191 and 80-1192.

Clifton E. Curtis, Washington, D. C., with whom James N. Barnes, Leonard C. Meeker, Washington, D. C., Michael I. Jeffery

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and Donald E. Clocksin, were on the brief for Village of Kaktovik, et al., cross-appellant in No. 80-1184 and appellees in Nos. 80-1148, 80-1150, 80-1151, 80-1164, 80-1169, 80-1190, 80-1191 and 80-1192.

Patrick A. Parenteau, Washington, D. C., with whom Thomas G. Tomasello, Washington, D. C., was on the brief for National Wildlife Federation, et al., appellant in No. 80-1169 and cross-appellees in Nos. 80-1148, 80-1150, 80-1151, 80-1164, 80-1184, 80-1190, 80-1191 and 80-1192.

Kathryn A. Oberly, Atty., Dept. of Justice, Washington, D. C., with whom James W. Moorman, Asst. Atty. Gen., Lois J. Schiffer, Bruce C. Rashkow and Margaret Strand, Attys., Dept. of Justice, Washington, D. C., were on the brief for federal appellee, in Nos. 80-1148, 80-1150, 80-1151, 80-1164, 80-1169 and 80-1184 and cross-appellants in Nos. 80-1190, 80-1191 and 80-1192.

E. Edward Bruce, Washington, D. C., with whom John T. Smith II, Constance J. Chatwood, David K. Flynn, Washington, D. C., Owen Olpin, Neil M. Soltman, and Burton H. Thompson, Los Angeles, Cal., were on the brief for appellants in Nos. 80-1148, 80-1150 and 80-1151 and cross-appellees in Nos. 80-1164, 80-1169, 80-1184, 80-1190, 80-1191 and 80-1192.

Avrum M. Gross, Atty. Gen., State of Alaska, Juneau, Alaska, pro hac vice by special leave of the Court, with whom Robert M. Maynard, Asst. Atty. Gen., State of Alaska, Juneau, Alaska, and Robert H. Loeffler, Washington, D. C. and Alan Cope Johnston, San Francisco, Cal., were on the brief for amicus curiae urging reversal in Nos. 80-1148, 80-1150, 80-1151, 80-1164, 80-1169, 80-1184, 80-1190, 80-1191 and 80-1192.

E. Edward Bruce and Constance J. Chatwood, Washington, D. C., also entered appearances for intervenor in Nos. 80-1148, 80-1150, 80-1151, 80-1164, 80-1169, 80-1184, 80-1190, 80-1191 and 80-1192.

Before MacKINNON and WILKEY, Circuit Judges, and PENN [*], United States District Judge for the United States District Court for the District of Columbia.

Opinion for the Court filed by Circuit Judge WILKEY.

WILKEY, Circuit Judge:

Plaintiffs, who represent collectively environmental organizations and native Alaskans, brought actions in district court to enjoin the Secretary of Interior from carrying out a lease sale of federal properties with oil and gas potential off the north coast of Alaska in the Beaufort Sea. The district court held that the Secretary failed to comply with certain requirements of the National Environmental Policy Act (NEPA) 1 and the Endangered Species Act (ESA), 2 though ruling for the government on all other statutory claims. District Judge Aubrey Robinson, Jr. enjoined the Secretary from accepting any of the bids submitted at the lease sale already held, and also enjoined all activity on the tracts until a new and adequate Environmental Impact Statement (EIS) was submitted and a "biological opinion" prepared in accordance with ESA.

For reasons discussed below, we affirm in part and reverse in part and hold that the Secretary may undertake, and permit to be undertaken, all lawful activities attendant upon the "lease phase" of the Beaufort Sea oil and gas project. On 8 July 1980 we so ordered, and thus cleared the way for the Secretary to accept bids. The Secretary has done so, we understand, and the Beaufort Sea leases have been executed and issued.

I. THE SETTING

A. The Environment

As early as November 1974 the Bureau of Land Management (BLM) of the Department of Interior proposed a lease sale for

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the development of oil and gas properties in the Beaufort Sea, the near-shore portion of the Arctic Ocean beginning at Point Barrow and running east into Canada beyond the delta of the Mackenzie River. The Beaufort Sea oil and gas tracts are near both the Prudhoe Bay oil field and the northern terminus of the TransAlaska Pipeline.

The environment of the Beaufort Sea region is dark and hostile; frigid temperatures prevail throughout much of the year. The frozen winter sea opens during the spring ice breakup, setting off powerful floes threatening everything in their path. Its precarious environment means the resources of the Beaufort Sea will doubtless prove difficult to assay, develop and protect. Life is nasty, brutish, and sometimes short.

While its potential oil reserves are the mainspring of industry and governmental interests, the area is home or migratory home to various animal species as well as a tribe of Eskimoes, the Inupiats. Although various species, and the ecosystem generally may be affected, it is the Bowhead whale (Balaena mysticetus ) which is really the principal focus of environmental and native concerns. The Bowheads migrate through the Beaufort Sea in the spring and autumn on their back-and-forth route from the Bering Sea to the Canadian Arctic. These whales are in jeopardy of extinction 3 and thus fall under the special protection of ESA. The possibility of oil spills along with an increase in human and construction activity in the area pose a danger to the Bowhead which is real, but hard to quantify.

The Inupiat tribe depends on these whales. Harvesting a restricted number of Bowhead for food comprises the important part of the Inupiat's subsistence lifestyle. Their culture to a significant extent revolves around whaling, the hunt for the Bowhead in particular. If the Bowhead disappears, the distinctive mores of the Inupiat, it is claimed, will also suffer. This, plaintiffs argue, would violate the trust responsibility which they allege the federal government must shoulder in favor of the native peoples of the United States.

These considerations, sketched only briefly here, are the factors which the Secretary must weigh alongside of the nation's plain need to develop domestic oil capacity. The balancing, of course, is the Secretary's responsibility, to be carried out according to the guidelines and principles established by Congress. We hold the Secretary's actions here were manifestly responsible and do effectuate the will of the legislature.

B. The Lease Stage

It is important to consider first what has not happened in, around, or affecting the Beaufort Sea: there has been no drilling-not even of an exploratory nature only-for oil, nor is it imminent. Drilling may still be at least two years away and will remain subject both to routine and extraordinary administrative and judicial review. 4 As provided in the Outer Continental Shelf Lands Act (OCSLA), 5 the lease sale itself is only a preliminary and relatively self-contained stage within an overall oil and gas development program which requires substantive approval and review prior to implementation of each of the major stages: leasing, exploring, producing.

At this point the court must look at the contentions among the parties as pertaining only to the lease sale. The leasing of tracts is the limited subject-matter to which our decision is relevant. This sale was in a suspended state after Judge Robinson's Order of 22 January 1980 enjoining the Secretary from leasing any of the tracts. The bids themselves, totalling $1.086 billion, were submitted to the Secretary at a lease sale held on 11 December 1979. When this

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action was begun, no bids had been accepted by the Secretary and no leases had been executed. 6 Once the Secretary accepts "high" bids and executes leases, lessees are...

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