Kunaknana v. Clark

• Decision Date: 12 September 1984
• Docket Number: 84-3623,Nos. 83-4325,s. 83-4325
• Citation: 742 F.2d 1145
• Parties: , 14 Envtl. L. Rep. 20,827 Sarah KUNAKNANA and Jean Numnik, Plaintiffs/Appellants, v. William CLARK, Secretary of the Interior, and the United States Department of the Interior, Defendants/Appellees, and Amoco Production Company; Arco Alaska, Inc.; Getty Oil Company; Shell Oil Company; and Texaco, Inc., Intervenor-Defendants/Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1145

742 F.2d 1145

21 ERC 1699, 14 Envtl. L. Rep. 20,827

Sarah KUNAKNANA and Jean Numnik, Plaintiffs/Appellants, v. William CLARK, Secretary of the Interior, and the United States Department of the Interior, Defendants/Appellees and Amoco Production Company; Arco Alaska, Inc.; Getty Oil Company; Shell Oil Company; and Texaco, Inc. Intervenor-Defendants/Appellants.

Nos. 83-4325, 84-3623.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 16, 1984.

Decided Sept. 10, 1984.

Opinion Filed Sept. 12, 1984.

Donald Cooper, James Bamberger, Alaska Legal Services Corp., Anchorage, Alaska, for plaintiffs-appellants.

G. Thomas Koester, Sarah E. McCracken, Asst. Attys. Gen., Anchorage, Alaska, for amicus curiae State of Alaska.

Sanford Sagalkin, Anchorage, Alaska, for amicus curiae North Slope Borough.

Fred R. Disheroon, Washington, D.C., for defendants-appellees.

Carl J.D. Bauman, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, Alaska, for intervenor.

Appeal from the United States District Court for the District of Alaska.

Before ANDERSON, SKOPIL and POOLE, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Sarah Kunaknana and Jean Numnik, two Inupiat Eskimos, appeal a district court judgment denying their challenge to certain oil and gas lease sales by the Bureau of Land Management within the Alaska National Petroleum Reserve. We affirm.

I. OVERVIEW

This appeal concerns oil and gas leasing on the National Petroleum Reserve-Alaska (NPR-A), a national petroleum reserve located on the North Slope in Alaska and encompassing 23 million acres. With certain exceptions, oil and gas production was prohibited within this reserve according to the terms of the Naval Petroleum Reserves Production Act of 1976 (NPRPA). 42 U.S.C. Secs. 6501-6507. In 1980, Congress amended the NPRPA to provide for "an expeditious program of competitive leasing" in the NPR-A. Id. at Sec. 6508.

Pursuant to this directive, an expedited leasing program was developed. The program involved five annual sales of approximately two million acres each. The Bureau of Land Management (BLM) published a Final Environmental Impact Statement (FEIS) concerning oil and gas leasing in the NPR-A and subsequently issued its Record of Decision. Lease Sale 831, challenged here, was the first offering under this scheme.

Appellants Numnik and Kunaknana and the State of Alaska and the North Slope Borough, amici here, sought a preliminary injunction blocking the lease sale. They noted that one of the primary objectives of the Alaska National Interest Lands Conservation Act (ANILCA), enacted just weeks before the NPRPA was amended, was "to provide the opportunity for rural residents engaged in a subsistence way of life [the opportunity] to do so." 16 U.S.C. Sec. 3101(c). They contended that the BLM had failed to make certain determinations required by the ANILCA after concluding the lease sale would result in a significant restriction of subsistence use by the native Alaskans. 16 U.S.C. Sec. 3120.

A preliminary injunction issued on July 19, 1983, after the district court concluded that the BLM had failed to make the required findings. The court permitted opening and accepting of bids by the BLM but enjoined execution of leases pending an expedited trial on the merits. Such a trial was required by the amended NPRPA. 42 U.S.C. Sec. 6508. Of the 81 tracts offered for lease in Sale 831, bids on 17 were accepted.

Trial on the merits commenced December 12, 1983, and the full administrative record was submitted to the court without objection. Counsel for the government announced that its position had changed since the preliminary injunction hearing. He asserted that a mistake had induced the government's initial position due to an assumption that the BLM had made a determination of significant restriction in subsistence use. Admittedly, such a conclusion would require further findings under 16 U.S.C. Sec. 3120(a). At trial, counsel asserted that the BLM had, in fact, concluded just the opposite and offered a "Modified Record of Decision" to explain this determination.

The district court entered its decision, finding in favor of the government on the merits. The court enjoined execution of the leases, allowing appellants to file in this court for injunction pending appeal. An injunction pending appeal was entered on January 13, 1984, permitting lease issuance but enjoining any exploratory drilling or any other lease activity that would substantially and adversely affect subsistence use. This expedited appeal followed.

II. DISCUSSION

Appellants Kunaknana and Numnik contest the validity of the district court's review. They argue that the court considered impermissible materials, improperly limited discovery and erred in determining that the BLM's rulemaking procedure complied with section 810 of the ANILCA. Intervenors Amoco Production Company, et al., cross-appeal, contending that Kunaknana and Numnik lack standing due to a failure to participate meaningfully in the administrative process preceding Lease Sale 831.

A. Standing

Traditionally, a party has standing to seek judicial review of agency action where the challenged action has caused "injury in fact" to an interest "arguably within the zone of interests to be protected or regulated by the statute" allegedly violated. State of California v. Block, 690 F.2d 753, 776 (9th Cir.1982) (quoting Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970)). Under this requirement, plaintiffs must show not only a "distinct and palpable" injury but also a "fairly traceable" causal connection between the claimed injury and the challenged conduct. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975).

We find that the traditional standing requirements have been met by appellants. The purpose of the ANILCA was to protect those North Slope natives who, like appellants, lead a subsistence lifestyle. 16 U.S.C. Secs. 3111-3112. Oil and gas development within the area would directly affect the availability of the subsistence resources and limit those areas in which subsistence activities could be conducted.

We disagree with intervenor's claim that appellants should be deprived of standing due to a failure to participate meaningfully in the administrative process. See Vermont Yankee Power Corporation v. National Resources Defense Council, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). See also City and County of San Francisco v. United States, 615 F.2d 498 (9th Cir.1980) and Seacoast Anti-Pollution League v. Nuclear Regulatory Commission, 598 F.2d 1221 (1st Cir.1979). The rationale of Vermont Yankee has been applied in those instances in which an interested party suggests that certain factors be included in the agency analysis but later refuses the agency's request for assistance in exploring that party's contentions. Id. 435 U.S. at 553-554, 98 S.Ct. at 1216-1217. Such a party will not be permitted to challenge the agency decision on the ground that it failed to consider the necessary alternatives. Id. The district court declined to establish a broad rule which would require participation in agency proceedings as a condition precedent to seeking judicial review of an agency decision, and we affirm.

B. The Modified Record of Decision

Appellants take issue with the district court's inclusion of the Modified Record of Decision (MROD) as a part of the administrative record on review. Characterizing the MROD as an impermissible post hoc rationalization of an agency decision, made in response to litigation, appellants contend that consideration of the MROD was improper. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); accord Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (per curiam). We disagree.

Agency actions are reviewed by examining the administrative record at the time the agency made its decision. Overton Park, 401 U.S. at 419-420, 91 S.Ct. at 825. Agency documents prepared during and in response to litigation are generally excluded from this review. Id.; accord ASARCO, Inc. v. U.S. Environmental Protection Agency, 616 F.2d 1153, 1158-61 (9th Cir.1980).

The general rule prohibiting post hoc rationalizations is not without exceptions. In Overton Park, the Supreme Court expressly authorized the trial court to allow the Secretary of Transportation to "prepare formal findings" in order to "provide an adequate explanation for his action" which the court could then review. 401 U.S. at 420, 91 S.Ct. at 826. The Ninth Circuit has also addressed the scope of the district court's review of an agency decision, adopting the more "enlightened" approach which permits "explanation" of agency decision-making. ASARCO, 616 F.2d at 1159. In ASARCO, we held that "[a] satisfactory explanation of agency action is essential for adequate judicial review, because the focus of judicial review is ... on whether the process employed by the agency to reach its decision took into consideration all the relevant factors." Id.; accord Overton Park, 401 U.S. at 410, 91 S.Ct. at 820; Bunker Hill Co. v. Environmental Protection Agency, 572 F.2d 1286, 1289 (9th Cir.1977). The court limited the purposes for which information outside the administrative record may be considered to use as "background information" and for "ascertaining whether the agency considered all the relevant factors or fully explicated its course of conduct or grounds of decision." ASARCO, 616 F.2d at 1160. Finally, the court observed that additional information should be explanatory in nature, rather than a new rationalization of the agency's decision, and must be sustained by the record. Id. at 1159-60.

In the instant matter, the district court noted that "without the [MROD], the record before this court will 'not disclose the factors that the Director considered or [...