Native Vill. of Nuiqsut v. Bureau of Land Mgmt.

• Decision Date: 24 August 2021
• Docket Number: No. 20-35224,20-35224
• Citation: 9 F.4th 1201
• Parties: NATIVE VILLAGE OF NUIQSUT; Alaska Wilderness League; Friends of the Earth; Natural Resources Defense Council; Sierra Club, Plaintiffs-Appellants, and Center for Biological Diversity, Plaintiff, v. BUREAU OF LAND MANAGEMENT; Debra Haaland, in her official capacity as Secretary of the Interior; Chad Padgett, in his official capacity as Alaska State Director of the Bureau of Land Management; Nichelle Jones, in her official capacity as District Manager of the Bureau of Land Management Arctic District Office, Defendants-Appellees, ConocoPhillips Alaska, Inc., Intervenor-Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

9 F.4th 1201

NATIVE VILLAGE OF NUIQSUT; Alaska Wilderness League; Friends of the Earth; Natural Resources Defense Council; Sierra Club, Plaintiffs-Appellants,andCenter for Biological Diversity, Plaintiff,

v. BUREAU OF LAND MANAGEMENT; Debra Haaland,^* in her official capacity as Secretary of the Interior; Chad Padgett, in his official capacity as Alaska State Director of the Bureau of Land Management; Nichelle Jones, in her official capacity as District Manager of the Bureau of Land Management Arctic District Office, Defendants-Appellees,ConocoPhillips Alaska, Inc., Intervenor-Defendant-Appellee.

No. 20-35224

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 28, 2021 Pasadena, California

Filed August 24, 2021

Jeremy Lieb (argued) and Rebecca Noblin, Earthjustice, Anchorage, Alaska; Eric P. Jorgensen, Earthjustice, Juneau, Alaska; Garett R. Rose, Natural Resources Defense Council, Washington, D.C.; for Plaintiff-Appellant.

Amelia G. Yowell (argued) and Andrew C. Mergen, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jean E. Williams, Principal Deputy Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Michael Gieryic, Attorney-Advisor, Office of the Solicitor, United States Department of the Interior, Washington, D.C.; for Defendants-Appellees.

Jason T. Morgan (argued) and Ryan P. Steen, Stoel Rives LLP, Seattle, Washington, for Intervenor-Defendant-Appellee.

Before: MILAN D. SMITH, JR. and JOHN B. OWENS, Circuit Judges, and EDUARDO C. ROBRENO,^** District Judge.

M. SMITH, Circuit Judge:

In 2018, the Bureau of Land Management (BLM) approved a winter drilling exploration program for ConocoPhillips Alaska, Inc. (ConocoPhillips) in the National Petroleum Reserve-Alaska (Petroleum Reserve). In connection with its approval of ConocoPhillips's exploration program, the BLM issued an environmental assessment (EA), which relied, in part, on the 2012 Integrated Action Plan/Environmental Impact Statement (IAP/EIS), a document that analyzed environmental impacts in a larger portion of the Petroleum Reserve. The Native Village of Nuiqsut and other plaintiffs (collectively, Plaintiffs) brought suit against the BLM, claiming that the agency violated the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), and the Alaska National Interest Lands Conservation Act (ANILCA) when it approved the referenced winter drilling exploration program. ConocoPhillips intervened in the dispute. The district court decided that, although the dispute was no longer live, it fit into the "capable of repetition, yet evading review" mootness exception, and decided the case on the merits. See Wildwest Inst. v. Kurth , 855 F.3d 995, 1002–03 (9th Cir. 2017) (internal quotation marks omitted).

In most NEPA cases, the "capable of repetition" inquiry focuses on whether the agency will be relying on the same environmental report in the future, or will utilize a new report or a new method in approving future actions. This case is unique in that a multitude of factors convince us that Plaintiffs’ claims are not capable of repetition. The BLM has promulgated a new IAP/EIS for the Petroleum Reserve, and the Council on Environmental Quality (CEQ) has revised the regulations implementing NEPA. The Department of the Interior is currently reviewing those actions. Notwithstanding that ongoing review, the new IAP/EIS and NEPA regulations, when combined with the BLM's improper reliance on a supplemental EIS and ConocoPhillips's declaration that it will not pursue exploratory drilling in the near future, mean that the "capable of repetition, yet evading review" exception no longer applies to Plaintiffs’ claims. Therefore, discharging our ongoing duty to be certain that we have subject matter jurisdiction, we vacate the district court's decision, and remand with instructions to dismiss the case as moot.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Petroleum Reserve is "the largest single unit of public land in the United States and covers 23.6 million acres." N. Alaska Env't Ctr. v. Kempthorne , 457 F.3d 969, 973 (9th Cir. 2006). In 1980, "Congress ... directed the Secretary [of the Interior] to carry out an expeditious program of competitive leasing of oil and gas on the Reserve." Id. (internal quotation marks omitted). Congress has also directed that oil and gas leasing in areas of the Petroleum Reserve "containing any significant subsistence, recreational, fish, and wildlife, or historical or scenic value[ ] shall be conducted in a manner which will assure the maximum protection of such surface values to the extent consistent with the requirements of" the National Petroleum Reserve Protection Act (NPRA) "for the exploration of the reserve." 42 U.S.C. § 6504(a). One of the areas protected by the NPRA is the Teshekpuk Lake Special Area. See id.

In November 2012, the BLM published the 2012 IAP/EIS.¹ The 2012 IAP/EIS is a comprehensive and programmatic document that analyzes environmental impacts in much of the Petroleum Reserve and, in its chosen course of action, made "approximately 11.8 million acres ... (nearly 52 percent of the total in the [Petroleum Reserve]) available for oil and gas leasing." Pertinent to this appeal, the 2012 IAP/EIS kept most of the Teshekpuk Lake Special Area closed for oil and gas exploration, but made "lands in the eastern-most part of the [area] available." The 2012 IAP/EIS noted that "[t]hese lands, which have valuable waterfowl and caribou habitat, also include or are close to existing leases, including those with oil discoveries in the Greater Mooses Tooth Unit."

The Greater Mooses Tooth (GMT) Unit is located within the Petroleum Reserve. In 2014, ConocoPhillips sought permission to construct a drill pad in the GMT Unit. The BLM approved the request and, in doing so, issued a supplemental EIS (GMT1 SEIS). The GMT1 SEIS "tier[ed] to" the 2012 IAP/EIS, meaning it relied on the analysis in the 2012 document. See 40 C.F.R § 1502.20 (2019).² In 2018, ConocoPhillips sought permission to construct another drill pad in the GMT Unit. The BLM approved this request as well and issued another supplemental EIS (GMT2 SEIS). The GMT2 SEIS also tiered to the 2012 IAP/EIS. Both the GMT1 SEIS and GMT2 SEIS additionally "incorporate[d] ... by reference" the 2012 IAP/EIS. See 40 C.F.R § 1502.21 (2019).

In 2018, ConocoPhillips applied to drill exploratory wells in the Bear Tooth Unit, west of Nuiqsut and the GMT Unit. The BLM published an EA and did not subsequently issue an EIS. An agency can "first prepare[ ] an EA to determine whether an action will have a significant impact," and, "[i]f the agency concludes there is no significant effect associated with the proposed project, it may issue a [finding of no significant impact] in lieu of preparing an EIS." Env't Prot. Info. Ctr. v. U.S. Forest Serv. , 451 F.3d 1005, 1009 (9th Cir. 2006). Regulations also allowed the BLM to not issue an EIS if it made a "finding of no new significant impact," or FONNSI. 43 C.F.R. § 46.140(c) (emphasis added) (internal quotation marks omitted). The 2018 EA purportedly tiered to, or incorporated by reference, the 2012 IAP/EIS, the GMT1 SEIS, and the GMT2 SEIS. Along with the final EA, the BLM issued a FONNSI for ConocoPhillips's 2018–2019 winter exploration program and did not subsequently issue a supplemental EIS for the program. The BLM also published an ANILCA evaluation to approve the winter drilling exploration program. After receiving approval, ConocoPhillips carried out the program, which included building ice pads, an ice airstrip, ice roads, and six new wells. ConocoPhillips completed the 2018–2019 winter exploration on April 28, 2019.

On March 1, 2019, before the completion of the program, Plaintiffs brought suit against the BLM, alleging violations of the APA, NEPA, and ANILCA. Plaintiffs’ claims centered on the 2018 EA's explanations for impacts on caribou and subsistence, and the BLM's consideration of alternatives to ConocoPhillips's proposal. The district court granted ConocoPhillips's motion to intervene. The BLM and ConocoPhillips (collectively, Defendants) and Plaintiffs filed cross-motions for summary judgment.

The district court issued its decision in January 2020. See Native Village of Nuiqsut v. Bureau of Land Mgmt. , 432 F. Supp. 3d 1003 (D. Alaska 2020). The district court held that the case fit into the " ‘capable of repetition yet evading review’ exception to the mootness doctrine." Id. at 1021–23. The court first held that the time period for the exploration program, "a period of only five months," was "precisely the sort of short-term action that evades judicial review." Id. at 1021–22. Additionally, the district court wrote that Plaintiffs did not need to ask for a preliminary injunction to avoid mootness. See id. at 1022 n.112 (citing Greenpeace Action v. Franklin , 14 F.3d 1324, 1330 (9th Cir. 1992) ).

Next, the district court noted that "ConocoPhillips ha[d] since proposed winter exploration for 2019–2020 in the same area as the 2018–2019 exploration at issue in this case, and that [the] BLM ha[d] again completed an EA to review impacts of the proposed activity." Id. at 1022 (footnote omitted). Additionally, the court stated that "while the 2018 EA and the exploration it authorized cannot themselves be repeated," the court found "it quite likely that [the] BLM will authorize future winter exploration in the Teshekpuk Lake Area using an EA that tiers to the 2012 IAP/EIS and the GMT1 and GMT2 SEISs to support conclusions regarding impacts to caribou and subsistence uses." Id. at 1023. Thus, the district court concluded that the dispute was "capable of repetition yet evading review." Id. (citing Greenpeace Action , 14 F.3d at 1330 ).

After concluding that the case was not moot, the district court granted Defendants’ motion for summary judgment for each of the substantive claims. See id. at 1026–46. Plaintiffs appeal the...