Kunaknana v. U.S. Army Corps of Eng'rs

• Decision Date: 27 May 2014
• Docket Number: 3:13–cv–00095–SLG.,Case Nos. 3:13–cv–00044–SLG
• Citation: 23 F.Supp.3d 1063
• Parties: Sam KUNAKNANA, et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants, and ConocoPhillips Alaska, Inc., et al., Intervenor–Defendants. Center for Biological Diversity, Plaintiff, v. United States Army Corps of Engineers, et al., Defendants, and ConocoPhillips Alaska, Inc., et al., Intervenor–Defendants.
• Court: U.S. District Court — District of Alaska

23 F.Supp.3d 1063

Sam KUNAKNANA, et al., Plaintiffs

v.UNITED STATES ARMY CORPS OF ENGINEERS, et al., DefendantsandConocoPhillips Alaska, Inc., et al., Intervenor–Defendants.

Center for Biological Diversity, Plaintiff

v.United States Army Corps of Engineers, et al., DefendantsandConocoPhillips Alaska, Inc., et al., Intervenor–Defendants.

Case Nos. 3:13–cv–00044–SLG

3:13–cv–00095–SLG.

United States District Court, D. Alaska.

Signed May 27, 2014.

Brian Litmans, Suzanne Bostrom, Trustees for Alaska, Anchorage, AK, for Plaintiffs.

Barbara M.R. Marvin, Kent E. Hanson, U.S. Department of Justice, Washington, DC, Bradley H. Oliphant, U.S. Department of Justice, Denver, CO, Dean Dunsmore, U.S. Department of Justice, Environment & Natural Resources Division, c/o Office of U.S. Attorney, Anchorage, AK, for Defendants.

Jeffrey W. Leppo, Ryan P. Steen, Stoel Rives LLP, Seattle, WA, Cameron M. Leonard, Perkins Coie, LLP, Andrew R. Naylor, Attorney General's Office, John A. Treptow, State of Alaska, Department of Law, Bruce E. Falconer, Boyd, Chandler & Falconer, LLP, Anchorage, AK, Harold J. Curran, North Slope Borough Law Department, Barrow, AK, Intervenor–Defendants.

ORDER RE MOTIONS FOR SUMMARY JUDGMENT

SHARON L. GLEASON, District Judge.

Plaintiffs Sam Kunaknana, et al. (“Kunaknana Plaintiffs”) and the Center for Biological Diversity (“CBD”) filed separate lawsuits challenging Defendant U.S. Army Corps of Engineers'¹ decision to issue a permit to ConocoPhillips Alaska, Inc. to fill certain wetlands in the National Petroleum Reserve—Alaska (“NPR–A”) in order to develop a drill site known as Colville Delta 5 (“CD–5”).² In their complaints, Plaintiffs assert that the Corps' issuance of the permit violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 –4327, and Section 404 of the Clean Water Act (“CWA”), 33 U.S.C. § 1344.³ ConocoPhillips, the Arctic Slope Regional Corporation (“ASRC”), the State of Alaska, the North Slope Borough, and Kuukpik Corporation have joined both actions as Intervenor–Defendants in support of the Corps.⁴ Kuukpik is the Alaska Native Claims Settlement Act village corporation for the Inupiat Eskimo Village of Nuiqsut.⁵

Challenges to agency decisions brought in this federal district court are resolved through summary judgment motions.⁶ Pursuant to the Court's Order Establishing Joint Case Management and a Case Schedule, the summary judgment motions in the two lawsuits have been jointly managed.⁷ Presently before the Court are CBD's and the Kunaknana Plaintiffs' Motions for Summary Judgment.⁸ The Corps and Intervenor–Defendants have each filed a single response in opposition to both Plaintiffs' motions,⁹ which also serves as a cross-motion for summary judgment,¹⁰ and Plaintiffs have replied.¹¹ No party requested oral argument, and oral argument was not necessary to the Court's decision.

For the reasons discussed herein, CBD's action will be dismissed because CBD lacks standing. The Kunaknana Plaintiffs' Motion for Summary Judgment will be granted on their NEPA claim to the extent they assert that the Corps failed to provide a reasoned explanation in the record for its decision not to conduct a supplemental NEPA analysis. This Order does not determine whether a supplemental NEPA analysis is required, nor does it determine the appropriate remedy for the Corps' NEPA violation. This Order also does not resolve the Kunaknana Plaintiffs' CWA claim. Instead, the Court requests further briefing from the parties as to how this case should proceed at this juncture.

STATUTORY FRAMEWORK, FACTUAL BACKGROUND, AND PROCEDURAL HISTORY

I. Statutory and Regulatory Framework.

A. Section 404 of the Clean Water Act.

Congress enacted the CWA “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.”¹² To achieve this goal, the CWA prohibits the discharge of any pollutant into navigable waters unless authorized by a permit.¹³ “Navigable waters” includes certain wetlands,¹⁴ such as the area in dispute here.

Section 404 of the CWA governs permitting for the discharge of dredged or fill material into navigable waters.¹⁵ The Corps is responsible for issuing Section 404 permits, and it does so according to EPA's Section 404(b)(1) Guidelines.¹⁶

Those guidelines state in relevant part: “[N]o discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.”¹⁷ This provision requires the Corps to select what the parties in this controversy refer to as the Least Environmentally Damaging Practicable Alternative, or “LEDPA.”

B. National Environmental Policy Act.

NEPA declares “a national policy ... to promote efforts which will prevent or eliminate damage to the environment.”¹⁸ It is a procedural statute, designed to achieve its stated policy “by focusing Government and public attention on the environmental effects of proposed agency action,” thereby ensuring “that the agency will not act on incomplete information, only to regret its decision after it is too late to correct,” and that “the public and other government agencies [can] react to the effects of a proposed action at a meaningful time.”¹⁹ Regulations promulgated by the Council on Environmental Quality (“CEQ”) provide guidance on the application of NEPA.

NEPA requires federal agencies to prepare an environmental impact statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.”²⁰ In an EIS, an agency must take “a ‘hard look’ at the potential environmental consequences of [its] proposed action.”²¹ It must also “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.”²² Under CEQ regulations, “[a] cooperating agency may adopt without recirculating the [EIS] of a lead agency when, after an independent review of the statement, the cooperating agency concludes that its comments and suggestions have been satisfied.”²³

In view of NEPA's purpose to ensure fully informed decision-making, “an agency that has prepared [or adopted] an EIS cannot simply rest on the original document. The agency must be alert to new information that may alter the results of its original environmental analysis, and continue to take a ‘hard look at the environmental effects of [its] planned action....’ ”²⁴ CEQ regulations require the agency to prepare a supplemental EIS (“SEIS”) if (1) “[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns”; or (2) “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.”²⁵ CEQ guidelines provide that “[a]s a rule of thumb, ... EISs that are more than 5 years old should be carefully reexamined to determine if the[se] criteria ... compel preparation of an EIS supplement.”²⁶ The agency “must make a reasoned decision whether an SEIS is required,” and if it decides an SEIS is not required, it must document that decision in the record.²⁷

II. Factual Background.

A. The NPR–A, the Colville River Delta, and the City of Nuiqsut.

Established in 1923, the NPR–A on Alaska's North Slope is “the largest single unit of public land in the United States and covers 23.6 million acres. It is also an important habitat for vegetation, fish, and wildlife.”²⁸ In a 1980 appropriations bill, Congress directed the Secretary of the Interior to conduct “an expeditious program of competitive leasing of oil and gas in the [NPR–A].”²⁹ Presently, the Bureau of Land Management (“BLM”) administers the NPR–A.

In the eastern half of the NPR–A, the Colville River flows east along the southern boundary and then north along the eastern boundary, eventually making its way through a large delta before emptying into the Beaufort Sea.³⁰ That delta, aptly termed the Colville River Delta, covers approximately 250 square miles³¹ and “is relatively flat, tundra-covered terrain, with local relief produced by a complex network of lakes interspersed with low-lying ridges and channels.”³² It is the largest delta in northern Alaska, draining 29% of the North Slope.³³ It is an area “recognized internationally for its biological diversity and richness” and “regionally for its importance to fish, wildlife, and subsistence resources.”³⁴

The City of Nuiqsut is one of only two permanent population centers within the Colville River Delta.³⁵ Approximately 500 people live in Nuiqsut, which is located on the west bank of the Nigliq Channel of the Colville River, roughly 15–20 miles from the Beaufort Sea.³⁶ The eastern boundary of the NPR–A is located just west of the Nigliq Channel, and Nuiqsut is just inside that boundary.³⁷ “To this day, the Inupiat people of Nuiqsut have a subsistence-based economy, with caribou, moose, birds, fish, seals and bowhead whales as primary food sources.”³⁸

B. The Alpine Oil Field and the 2004 Alpine Satellites EIS.

In the winter of 1994–1995, ARCO Alaska and its partners discovered the Alpine oil field in the Colville River Delta.³⁹ In 1998, the Corps issued a permit to ARCO to fill 98.4 acres in order to construct two drill pads, CD–1 and CD–2, as well as the Alpine Central Processing Facility (“ACPF”), located at CD–1.⁴⁰ CD–1 and CD–2 are east of the Nigliq Channel but west of the Colville River mainstem and outside of the NPR–A.⁴¹ A pipeline and road connects CD–2 to CD–1, and CD–1 is connected via pipeline to the Trans–Alaska Pipeline that is further to the east.⁴² CD–1 and CD–2 are both approximately eight miles north of Nuiqsut.⁴³

In 2001, ARCO's successor, ConocoPhillips, announced the discovery of additional oil in the area to the west of Alpine, including areas within the NPR–A.⁴⁴ Thereafter, BLM initiated a review process pursuant...