Conservation Law Foundation v. Watt, Civ. A. No. 83-0506-MA

• Decision Date: 28 March 1983
• Docket Number: Civ. A. No. 83-0506-MA,83-0530-MA.
• Citation: 560 F. Supp. 561
• Parties: CONSERVATION LAW FOUNDATION, et al., Plaintiffs, v. James G. WATT, et al., Defendants, Atlantic Richfield Company, et al., Intervenor-Defendants. COMMONWEALTH OF MASSACHUSETTS, Plaintiff, v. James G. WATT, et al., Defendants, Atlantic Richfield Company, et al., Intervenor-Defendants.
• Court: U.S. District Court — District of Massachusetts

560 F. Supp. 561

CONSERVATION LAW FOUNDATION, et al., Plaintiffs, v. James G. WATT, et al., Defendants, Atlantic Richfield Company, et al., Intervenor-Defendants.

COMMONWEALTH OF MASSACHUSETTS, Plaintiff, v. James G. WATT, et al., Defendants, Atlantic Richfield Company, et al., Intervenor-Defendants.

Civ. A. Nos. 83-0506-MA, 83-0530-MA.

United States District Court, D. Massachusetts.

March 28, 1983.

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E. Edward Bruce, Washington, D.C., argued, for intervenors-defendants; Richard A. Merserve and Covington & Burling, Washington, D.C., on brief.

Robert R. Ruddock, New England Legal Foundation, and Greater Boston Chamber of Commerce, New England Council, Boston, Mass., on brief amicus curiae for all defendants.

Douglas I. Foy, Conservation Law Foundation, Boston, Mass., argued, for plaintiffs in No. 83-0506-MA; Alan Fryer, Donald Berry, and Cheryl Conner, Conservation Law Foundation, Boston, Mass., on brief.

Margaret Strand, Land and Natural Resource Div., U.S. Dept. of Justice, Washington, D.C., argued, for all defendants; Carol E. Dinkins, Asst. Atty. Gen., and Gary B. Randall, Land and Natural Resource Div., U.S. Dept. of Justice, Washington, D.C., on brief.

Stephen M. Leonard, Asst. Atty. Gen., Boston, Mass., argued, for plaintiff in No. 83-0530-MA; Francis X. Bellotti, Atty. Gen., Boston, Mass., and Lee Breckenridge, Asst. Atty. Gen., Nashville, Tenn., on brief.

Irwin I. Kimmelman, Atty. Gen. and Mary C. Jacobson, Deputy Atty. Gen., Richard J. Hughes, Trenton, N.J., on brief amicus curiae filed by New Jersey for plaintiff in No. 83-0530-MA.

John K. Van de Kamp, Atty. Gen., N. Gregory Taylor, Asst. Atty. Gen. and Theodora Berger, Deputy Atty. Gen., Los Angeles, Cal., on brief amicus curiae filed by California for plaintiff in No. 83-0530-MA.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

This matter is before the Court on the motions of the plaintiffs, the Commonwealth of Massachusetts, the Conservation Law Foundation (CLF), and ten other environmental organizations and fishery associations for a preliminary injunction. The plaintiffs seek to enjoin James G. Watt, Secretary of the Interior (the Secretary), from conducting a sale of leases for the exploration, development and production of oil and natural gas in the Georges Bank region of the Outer Continental Shelf. The precise subject matter of the proposed lease sale is 488 tracts encompassing some 2.8 million acres of North Atlantic seabed, located in waters from 86 to 164 miles off the coast of the northeastern United States. The sale, designated Lease Sale 52, is planned for March 29, 1983.

Georges Bank is a shallow submarine bank located on the outer continental shelf to the southeast of Massachusetts. Because of its particular oceanographic and geological features, it is an area of extraordinary biological productivity, and supports one of the most important commercial fisheries in the world. It can be divided into three separate regions: the continental shelf, a gently sloping portion of the continental margin extending seaward to a depth of some 200 meters; the continental slope, a steep, narrow area incised by a series of deep submarine canyons; and the less steeply inclined continental rise, continuing seaward into depths in excess of 2000 meters.

The currents and tides over Georges Bank are characterized by a general clockwise movement, or gyre. While the circulation is not entirely closed and exhibits some seasonal variation, the net exchange of water in the area is limited by this circulation pattern. Measurements in some locations have demonstrated mean residence times of more than two months. Within the gyre, in the shallow parts of the Bank, strong rotary tidal currents constantly move the sediment about and cause the overlying water to be vertically well-mixed throughout the year. Patterns of currents in the canyons along the continental slope, however, are more complex. Recent studies suggest that there may be a net deposition of sediment at the canyon heads. The Georges Bank region is subject to severe storms and high waves, particularly during the winter months.

These oceanographic features combine to make Georges Bank one of the world's most productive fisheries. The circulation pattern of the water and the turbulent mixing of the water column allows recirculation of eggs and larvae and provides high levels of nutrients for larvae. Consequently, it is a major spawning grounds for at least 26 different species of fish, many of which migrate seasonally from the Bank to Massachusetts coastal waters. Among the fish that spawn on Georges Bank are cod, haddock, herring, flounder, grey sole, silver hake and scallops. The deep canyons of Georges Bank provide a similarly unique habitat for other species, including lobster, squid, tilefish, shrimp, and coral. The lobster migrate to coastal waters in the spring and summer, returning in the fall.

Unlike most major fisheries, Georges Bank is contained entirely within the United States' 200 mile limit and, therefore, is subject to the protection and management of the United States. Massachusetts fishermen alone in 1979 harvested 363 million pounds of fish and shellfish with an ex-vessel value of $166,000,000. Given the economic multiplier of 4.24 (Council of State Governments, State Natural Resource Economics at 10 (1979)), the Massachusetts fishing industry generated nearly $708,000,000 in economic activity in the state. In New Bedford, the leading fishing port in the state, 93% of the catch in 1979 was caught on Georges Bank. See Brief of Commonwealth of Massachusetts, at 3-9 and sections of the Final EIS cited therein.

I note at the outset that the planned lease sale is not the first to be held in this region. Lease Sale 42, calling for bids on 123 tracts of 5693 acres each, was held on December 18, 1979 with the result that 63 tracts encompassing some 360,000 acres of seabed were actually leased. That sale, initially scheduled for January 31, 1978, was enjoined by this Court on January 28, 1978. Massachusetts v. Andrus, 11 ERC 1138 (D.Mass.1978) (Garrity, J.). The First Circuit declined to disturb that injunction on initial review. Massachusetts v. Andrus, 11 ERC 1147 (1st Cir.1978). Subsequently, Congress adopted significant amendments to the applicable leasing statute, the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331 et seq. (OCS Lands Act), and in view of the amendments, the First Circuit vacated the outstanding injunction in February of 1979. Massachusetts v. Andrus, 594 F.2d 872 (1st Cir.1979). Following further litigation before this Court and the Court of Appeals, and after a brief stay by Justice Brennan, Circuit Justice for the First Circuit, later vacated by the Supreme Court en banc, Lease Sale 42 was conducted, as noted above, on December 18, 1979. Exploration began in the fall of 1980 on certain of the leased tracts, and eight wells have been drilled. No discoveries of oil or natural gas have been made in the region.

I summarize briefly some of the lengthy administration process that has preceded Lease Sale 52. On December 31, 1979, the Bureau of Land Management of the Department of Interior issued a Call for Nominations and Comments on Lease Sale 52. On July 1, 1980, the Department announced its tentative tract selection for the sale, and in September, 1981 it released a Draft Environmental Impact Statement (Draft EIS). Numerous written and oral comments were received on the Draft EIS from interested public and private concerns, including extensive comments from the Commonwealth of Massachusetts and the Conservation Law Foundation.

In April of 1982, the Department of Interior issued the Final Environmental Impact Statement (Final EIS), as well as a Proposed Notice of Sale indicating that the sale would take place in August of 1982. At this time, then-Governor King and the Governors of all other affected states were asked, pursuant to section 19 of the OCS Lands Act, 43 U.S.C. § 1345, to submit recommendations regarding the "size, timing, and location" of Lease Sale 52. In his response, dated June 18, 1982, the Governor indicated:

Massachusetts has repeatedly expressed its specific concerns regarding the timing and extent of Sale 52 as proposed... The overriding objective of my recommendations is to protect, in a manner consistent with an aggressive energy policy, the rich and valuable resources of the Massachusetts coastal zone in general and its fishery in particular. While those resources are of tremendous significance to the citizens and economy of Massachusetts, they must also be viewed as precious national resources. Fish caught on Georges Bank and landed in Massachusetts provide an important source of food and nutrition to the entire nation.

The Governor recommended the deletion of 103 of the proposed 540 tracts in the sale block, and further recommended that the sale be delayed in order to permit consideration of the results of "key studies" already under way regarding the effect of oil and gas activity on Georges Bank. "Only then," he indicated, could "a prudent and properly informed decision be made regarding the scope of (i.e. tracts offered) and limitations on (i.e. lease stipulations) proposed Sale 52."

Lease Sale 52 was scheduled for August, 1982 in the proposed five-year outer continental shelf leasing program issued by the Department in May, 1982. This date was revised to October, 1982 when that program was finalized two months later. Further postponement was occasioned by the August, 1982 decision in California v. Watt, 683 F.2d 1253 (9th Cir.1982), cert. pending 82-1326, 82-1327, 82-1511, which indicated that outer continental shelf lease sales for oil and gas exploration fell within the scope of the Coastal Zone Management Act and required preparation of consistency determinations with the coastal zone management programs of the affected states. To allow the time necessary for the...