Ctr. for Biological Diversity v. Bernhardt

• Decision Date: 07 December 2020
• Docket Number: No. 18-73400,18-73400
• Citation: 982 F.3d 723
• Parties: CENTER FOR BIOLOGICAL DIVERSITY; Defenders of Wildlife; Friends of the Earth; Greenpeace USA; Pacific Environment, Petitioners, v. David BERNHARDT ; Bureau of Ocean Energy Management; United States Fish and Wildlife Service, Respondents, Hilcorp Alaska LLC, Respondent-Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

982 F.3d 723

CENTER FOR BIOLOGICAL DIVERSITY; Defenders of Wildlife; Friends of the Earth; Greenpeace USA; Pacific Environment, Petitioners,

v.David BERNHARDT ; Bureau of Ocean Energy Management; United States Fish and Wildlife Service, Respondents,Hilcorp Alaska LLC, Respondent-Intervenor.

No. 18-73400

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 5, 2019 Portland, Oregon

Filed December 7, 2020

Rebecca Noblin (argued) and Jeremy C. Lieb, Earthjustice, Anchorage, Alaska; Eric P. Jorgensen, Earthjustice, Juneau, Alaska; Kristen Monsell and Emily Jeffers, Center for Biological Diversity, Oakland, California; for Petitioners.

James A. Maysonett (argued), Attorney, Appellate Section; Eric Grant, Deputy Assistant Attorney General; Jeffrey Bossert Clark, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; for Respondents.

Svend A. Brandt-Erichsen (argued) and Linda R. Larson, Nossaman LLP, Seattle, Washington, for Respondent-Intervenor.

On Petition for Review of an Order of the Bureau of Land Management, Interior

Before: Richard A. Paez and Johnnie B. Rawlinson, Circuit Judges, and Leslie E. Kobayashi,^* District Judge.

PAEZ, Circuit Judge:

Hilcorp Alaska, LLC, is an energy management company seeking to produce crude oil from Foggy Island Bay, along the coast of Alaska in the Beaufort Sea. To extract the oil from under the Beaufort Sea, Hilcorp will need to construct an offshore drilling and production facility. The facility—referred to as "the Liberty project," or "the Liberty prospect"—will be the first oil development project fully submerged in federal waters. Hilcorp estimates that the site contains about 120 million barrels of recoverable oil, which it hopes to extract over the course of fifteen to twenty years.

The site of the Liberty project is within the outer Continental Shelf of the United States and thus governed by the Outer Continental Shelf Lands Act ("OCSLA"),¹ 43 U.S.C. § 1331 et seq . OCSLA allows the Department of Interior—which houses the Bureau of Ocean Energy Management ("BOEM")—to oversee the mineral exploration and development of the outer Continental Shelf.² Administering the use of the Shelf under OCSLA may include leasing federal land for oil and gas production to entities like Hilcorp. See 43 U.S.C. §§ 1344 ; 1331(c), (k)–(m). OCSLA requires BOEM to manage the outer Shelf in "a manner which considers [the] economic, social, and environmental values" of the Shelf's natural resources. 43 U.S.C. § 1344(a)(1).

Before Hilcorp can begin drilling, it must obtain approval of the project from BOEM. Three environmental statutes and their concomitant regulations govern BOEM's approval. First, approval of the Liberty project is considered a "major Federal action" under the National Environment Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq . See 42 U.S.C. § 4332(C) ; 40 C.F.R. § 1508.18. NEPA requires BOEM to draft an "environmental impact statement" ("EIS") evaluating the environmental consequences of the drilling and oil extraction. 42 U.S.C. § 4332(C). The EIS must contain, among other things, a statement of purpose, a description of the project, and a comparison of the Liberty project with other reasonable alternatives for extracting oil. Id. ; 40 C.F.R. § 1502.12 – 1502.14. It must also include a "no action" alternative, in which BOEM evaluates the relative consequences of not approving any drilling in the Beaufort Sea. 40 C.F.R. § 1502.14(c). This comparative analysis is "the heart" of the EIS. Id. § 1502.14.

Second, the remarkable biodiversity of the drilling site implicates the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. § 1531 et seq . The Liberty project requires the construction of an offshore gravel island, wells, a pipeline to transport the oil, gravel pads to support the intersections between pipes, ice pads, a hovercraft shelter, a small boat dock, a gravel mine, and additional ice roads and crossings. The gravel island's proposed site is in the middle of "the Boulder Patch," an isolated area of boulders and cobbles that supports the only high arctic kelp forest in the Alaskan Arctic and produces unusual species diversity and biomass. The Bay is home to a wealth of threatened and endangered marine mammals, including polar bears, six species of whales, three species of seals, sea lions, sea otters, and Pacific walruses. Seabirds, numerous species of fish, and larger mammals all frequent the shallow waters around the Bay.

The ESA requires BOEM to ensure that its approval of the project does not jeopardize an endangered or threatened species or destroy or adversely modify the species's habitat. 16 U.S.C. § 1536(a)(2). BOEM must consult with either the U.S. Fish and Wildlife Service ("FWS") or the National Marine Fisheries Service ("NMFS"), depending on the species at risk, and then either FWS or NMFS must prepare a biological opinion to determine whether the agency's proposed action will jeopardize a species. Id. § 1536(b) – (c). If BOEM concludes that the proposed action will not jeopardize a species or adversely modify its critical habitat—but that the project will result in the "incidental take" of the members of a species—FWS or NMFS must provide an "incidental take statement" authorizing such takings. A "take" occurs under the ESA when an animal is harassed, harmed, pursued, hunted, shot, wounded, killed, trapped, captured, or collected, or when anyone attempts to engage in such conduct. 16 U.S.C. § 1532(19).

Third and finally, the proposed project must comply with the Marine Mammal Protection Act of 1972 ("MMPA"), 16 U.S.C. § 1361 et seq . The MMPA is narrower but more restrictive than the ESA. It broadly prohibits the take of any marine mammal. 16 U.S.C. § 1371(a). Under the MMPA, the Department of Interior may promulgate incidental take regulations that allow an agency to take marine mammals where such take is "in accord with sound principles of resource protection and conservation" as provided in the MMPA. Id. § 1371(a)(3)(A).

Relying on a biological opinion prepared by FWS and BOEM's own EIS, BOEM's Regional Supervisor of Leasing and Plans signed a record of decision approving the Liberty project. The Center for Biological Diversity and four other conservation organizations (collectively, "CBD"), dispute the legality of BOEM's and FWS's actions, arguing that the agencies failed to comply adequately with the procedural requirements imposed by NEPA, the ESA, and the MMPA. Specifically, CBD claims that (1) BOEM violated NEPA by arbitrarily and capriciously estimating the environmental consequences of the alternatives included in the EIS; (2) FWS violated the ESA and MMPA by producing a legally inadequate biological opinion; and (3) BOEM violated the ESA by relying on FWS's unlawful biological opinion to approve the Liberty project. Hilcorp intervened on behalf of BOEM. We agree in part with CBD and vacate BOEM's approval of the project.

I. Court of Appeals Review

A. Jurisdiction

We have original jurisdiction over CBD's challenge to BOEM's approval of the Liberty project under 43 U.S.C. § 1349(c)(2) ("Any action of the Secretary to approve ... any development and production plan under this subchapter shall be subject to judicial review only in a United States court of appeals for a circuit in which an affected State is located."). This includes CBD's challenge to the EIS prepared under NEPA and the biological opinion prepared by FWS under the ESA. See 16 U.S.C. § 1531 ; Am. Bird Conservancy v. F.C.C. , 545 F.3d 1190, 1191 (9th Cir. 2008).

We also have jurisdiction over CBD's claims that BOEM's conditional approval of the Liberty project violated the ESA. "[W]hen a Section 7 claim challenges an agency order issued pursuant to a substantive statute with a ‘more specific’ judicial review scheme than the ESA, courts must evaluate the plaintiff's claims under the jurisdictional provisions of that substantive statute." Ctr. for Bio. Diversity v. E.P.A. , 847 F.3d 1075, 1089 (9th Cir. 2017) (quoting Am. Bird. Conservancy , 545 F.3d at 1194 ). When two claims are "inextricably intertwined between two statutes," "and those statutes contain conflicting jurisdictional provisions," we follow the more specific statute. Id.

The two statutes relevant to CBD's Section 7 ESA claim are OCSLA and the ESA, and they have conflicting jurisdictional provisions. OCSLA grants standing to "any person" to "compel compliance" with the Act. 43 U.S.C. § 1349(a)(1). A court of appeals has original jurisdiction under OCSLA to review the Secretary of the Interior's action where that action is "to approve, require modification of, or disapprove ... any development and production plan" under the Act. Id . § 1349(c)(2). If the agency action does not "approve, require modification of, or disapprove" any plan, but still arises from (1) "any operation ... which involves ... development" or (2) "the cancellation, suspension, or termination of a lease or permit," then federal district courts have jurisdiction to review the agency action. Id. § 1349(b)(1).

The ESA instead allows a citizen to "commence a civil suit on his own behalf ... to enjoin any person, including the United States and any other governmental instrumentality or agency ... , who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof[.]" 16 U.S.C. § 1540(g)(1)(A). The ESA citizen-suit provision also provides, "The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce any such provision or regulation, or to order the Secretary to perform such act or duty[.]" Id. § 1540(g)(1).

OCSLA is the more specific jurisdictional statute. It bifurcates jurisdiction between the courts of appeal and district courts, and it refers specifically to BOEM's "approv[al]" of development plans, like the one at issue here. Additionally, OCSLA and the ESA are ...