Sovereign Iñupiat for a Living Arctic v. Bureau of Land Mgmt.
| Decision Date | 01 February 2021 |
| Docket Number | Case No. 3:20-cv-00308-SLG,Case No. 3:20-cv-00290-SLG |
| Citation | 516 F.Supp.3d 943 |
| Court | U.S. District Court — District of Alaska |
| Parties | SOVEREIGN IÑUPIAT FOR A LIVING ARCTIC, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, et al., Defendants. and ConocoPhillips Alaska, Inc., et al., Intervenor-Defendant. Center for Biological Diversity, et al., Plaintiffs, v. Bureau of Land Management, et al., Defendants, and ConocoPhillips Alaska, Inc., et al., Intervenor-Defendant. |
Brian Litmans, Bridget Earley Psarianos, Brook Brisson, Suzanne Bostrom, Trustees for Alaska, Anchorage, AK, Eric P. Jorgensen, Layla A. Hughes, EARTHJUSTICE, Juneau, AK, Erik Clifford Grafe, Ian S. Dooley, Jeremy C. Lieb, EARTHJUSTICE, Anchorage, AK, for Plaintiffs.
Caitlin Marie Cipicchio, United States Department of Justice, Washington, DC, Rickey Doyle Turner, Jr., United States Department of Justice, Denver, CO, for Defendants Bureau of Land Management, U.S. Department of the Interior, U.S. Fish & Wildlife Service, Chad Padgett, David Hobbie, Scott De La Vega.
Caitlin Marie Cipicchio, United States Department of Justice, Washington, DC, Rickey Doyle Turner, Jr., Michele L. Walter, United States Department of Justice, Denver, CO, for Defendant United States Army Corps of Engineers.
Jason T. Morgan, Ryan P. Steen, James C. Feldman, Stoel Rives LLP, Seattle, WA, for Intervenor-Defendant ConocoPhillips Alaska, Inc.
ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER
Before the Court are two motions filed in related cases challenging the Bureau of Land Management's ("BLM") review and approval of ConocoPhillips Alaska, Inc.’s ("ConocoPhillips") Willow Master Development Plan ("Willow Project" or "Project") in the National Petroleum Reserve in Alaska ("NPR-A"). At issue are Center for Biological Diversity Plaintiffs’ ("CBD Plaintiffs")1 Motion for Preliminary Injunction (Docket 9) and Sovereign Iñupiat for a Living Arctic Plaintiffs’ ("SILA Plaintiffs")2 Motion for Temporary Restraining Order and Preliminary Injunction (Docket 17). Both motions seek to enjoin ConocoPhillips from undertaking Willow Project construction activities this winter, pending the Court's final judgment on the merits of Plaintiffs’ claims against Federal Defendants.3 For the reasons set forth below, Plaintiffs’ motions will be denied.
The National Petroleum Reserve in Alaska ("NPR-A"), on Alaska's North Slope, consists of 23.6 million acres and is the nation's largest single unit of public land.4 Established as the Naval Petroleum Reserve in 1923, the NPR-A was renamed and its management authority was transferred to the Secretary of the Interior in 1976 by the Naval Petroleum Reserves Production Act ("NPRPA"), 42 U.S.C. § 6501 et seq.5 In 1980, the NPRPA was amended by an appropriations rider that directed the Secretary of the Interior to conduct "an expeditious program of competitive leasing of oil and gas in the" NPR-A.6 Over the years, Intervenor-Defendant ConocoPhillips has acquired and developed significant lease holdings in the northeast portion of the NPR-A.7
Pursuant to certain lease rights, on May 10, 2018, ConocoPhillips requested that BLM prepare an Environmental Impact Statement ("EIS") for the Willow Project, as required by the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq.8 The following year, BLM made available for public comment a Draft EIS for the Project.9 Then, on March 26, 2020, BLM released a Supplemental Draft EIS that evaluated additional Project components.10 BLM published its notice regarding the availability of the Final EIS ("FEIS") on August 14, 2020.11 On October 26, 2020, then-Secretary of the Interior David Bernhardt signed the Record of Decision ("ROD") approving the Willow Project.12
As approved by the ROD, the Willow Project will consist of "up to three drill sites and related support infrastructure, including a central processing facility, airstrip, operations center, freshwater reservoir, and all-season gravel road connecting the Willow development to [existing ConocoPhillips] facilities."13 Construction for the entire Project is projected to occur over approximately nine years.14 However, ConocoPhillips plans to undertake certain construction activities this winter from approximately February 2, 2021, to May 1, 2021 ("Winter 2021 Construction Activities").15 Both CBD Plaintiffs and SILA Plaintiffs seek to enjoin the Winter 2021 Construction Activities pending adjudication of the merits of their claims.16
The Winter 2021 Construction Activities are comprised of three components: (1) constructing ice roads, (2) opening a gravel mine site and testing a surface miner, and (3) constructing up to 2.8 miles of a gravel road.17 Prior to opening the gravel mine and commencing the gravel road construction, ConocoPhillips plans to construct ice roads from Greater Mooses Tooth-1 to the gravel mine site and from Greater Mooses Tooth-2 westward along the projected gravel road extension.18 Gravel hauling and other construction traffic is scheduled to occur on the ice roads.19
ConocoPhillips plans to open one gravel mine site this winter, the Willow Mine Site Area 2, which is located about 7 miles west of the Nuiqsut community and will initially cover 9.0 acres of land.20 ConocoPhillips plans to use a combination of heavy equipment and blasting to remove the overburden (i.e., tundra and soil) and gravel.21 An approximate total of 18 blasts (on 18 separate days) are expected.22
ConocoPhillips also plans to lay approximately 2.0 to 2.8 miles of gravel road from GMT-2 westward this winter.23 The gravel road extension will create between 15.0 and 20.9 acres of surface disturbance, based on actual road mileage, bringing the total surface disturbance of the Winter 2021 Construction Activities at between 24.0 acres and 29.9 acres.24
The Southern Beaufort Sea ("SBS") polar bear stock is a protected species under the Endangered Species Act.25 The SBS stock's critical habitat is located on the North Slope and its coastal waters.26 The Winter 2021 Construction Activities are planned to principally occur outside the critical habitat; however, some maritime and construction traffic is expected to pass through the critical habitat.27
SILA Plaintiffs filed their case on November 17, 2020, and their motion for preliminary injunctive relief on December 23, 2020.28 As relevant here, SILA Plaintiffs assert that Federal Defendants violated the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. , by relying on uncertain Marine Mammal Protection Act, 16 U.S.C. § 1361 et seq. , mitigation measures.29 SILA Plaintiffs also bring a claim pursuant to NEPA, arguing that Federal Defendants failed to take a "hard look" at the impacts of the Willow Project.30
CBD Plaintiffs initiated their case on December 21, 2020, and filed their motion for preliminary injunctive relief on December 24, 2020.31 As relevant here, CBD Plaintiffs bring two NEPA claims: First, CBD Plaintiffs contend that Federal Defendants failed to meaningfully consider any reasonable alternative projects, including alternatives proposed by Plaintiffs, as required by NEPA.32 Second, CBD Plaintiffs assert that Federal Defendants violated NEPA by failing to properly estimate global greenhouse gas emissions associated with the Willow Project.33
Both SILA Plaintiffs and CBD Plaintiffs seek an immediate order enjoining the Winter 2021 Construction Activities.34
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, which "confer[s] jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional predicate."35
In Winter v. Natural Resources Defense Council, Inc. , the United States Supreme Court held that plaintiffs seeking preliminary injunctive relief must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest.36
The Supreme Court in Winter characterized "injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief."37 Thus, a plaintiff "must demonstrate that in the absence of a preliminary injunction, ‘the [plaintiff] is likely to suffer irreparable harm before a decision on the merits can be rendered.’ "38 "Speculative injury does not constitute irreparable injury ... a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief."39 Moreover, "[t]here must be a ‘sufficient causal connection’ between the alleged irreparable harm and the activity to be enjoined," such as a "showing that ‘the requested injunction would forestall’ the irreparable harm ...."40
Following Winter , the Ninth Circuit addressed the first element—the likelihood of success on the merits—and held that its "serious questions" approach to preliminary injunctions was still valid "when applied as a part of the four-element Winter test."41 Accordingly, if a plaintiff shows "that there are ‘serious questions going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff's favor.’ "42 "Serious questions are ‘substantial, difficult, and doubtful,’ as to make them a fair ground for litigation and thus for more deliberative investigation."43 They "need not promise a certainty of success, nor even present a probability of success, but must involve a ‘fair chance on the merits.’ "44 All four Winter elements must still be satisfied under this approach,45 but analyses of the last two elements—harm to the...
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Sovereign Iñupiat for a Living Arctic v. Bureau of Land Mgmt.
...See BLM AR 186055 (Record of Decision); BLM AR 182369; see also Order, Sovereign Iñupiat for a Living Arctic v. BLM , Case No. 3:20-cv-00290-SLG, 516 F.Supp.3d 943, 945, (D. Alaska Feb. 1, 2021) (discussing the NPR-A).11 BLM AR 186055 (ROD); BLM AR 182369.12 BLM AR 186055 (ROD); BLM AR 1823......
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... ... land. [ 4 ] Formerly known as Naval Petroleum Reserve ... federal leases with the Bureau of Land Management ... (“BLM”). [ 18 ] ... Arg.) ... [ 4 ] Sovereign Inupiat for a Living ... Arctic v. Bureau f Land Mgmt. , 516 F.Supp. 3d 943, 946 ... (D. Alaska ... ...
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