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

• Decision Date: 09 January 2020
• Docket Number: Case No. 3:19-cv-00056-SLG
• Citation: 432 F.Supp.3d 1003
• Parties: NATIVE VILLAGE OF NUIQSUT, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, et al., Defendants, and ConocoPhillips Alaska, Inc., Intervenor-Defendant.
• Court: U.S. District Court — District of Alaska

432 F.Supp.3d 1003

NATIVE VILLAGE OF NUIQSUT, et al., Plaintiffs,

v. BUREAU OF LAND MANAGEMENT, et al., Defendants,andConocoPhillips Alaska, Inc., Intervenor-Defendant.

Case No. 3:19-cv-00056-SLG

United States District Court, D. Alaska.

Signed January 9, 2020

Eric P. Jorgensen, Earthjustice, Juneau, AK, Jeremy C. Lieb, Rebecca Noblin, Earthjustice, Anchorage, AK, Garett Robert Rose, Natural Resources Defense Council, Inc., Washington, DC, for Plaintiffs.

Caitlin Marie Cipicchio, John S. Most, United States Department of Justice, Environmental and Natural Resource Division, Washington, DC, for Defendants.

Bryn Resser Pallesen, Stoel Rives LLP, Anchorage, AK, Jason T. Morgan, Ryan P. Steen, Stoel Rives LLP, Seattle, WA, for Intervenor-Defendant.

DECISION AND ORDER

Sharon L. Gleason, UNITED STATES DISTRICT JUDGE

This is an action in which Plaintiffs, comprised of Native Village of Nuiqsut, Alaska Wilderness League, Center for Biological Diversity, Friends of the Earth, Natural Resources Defense Council, and Sierra Club, seek the invalidation of the Bureau of Land Management's approval of the 2018-2019 winter exploration activity undertaken by ConocoPhillips Alaska, Inc. in the National Petroleum Reserve-Alaska.¹ For the reasons set forth herein, Plaintiffs' requested relief is denied.

BACKGROUND

The National Petroleum Reserve-Alaska ("NPR-A"), on Alaska's North Slope, consists of 23.6 million acres and is the nation's largest single unit of public land.² Established as the Naval Petroleum Reserve in 1923, the NPR-A was renamed and placed under the authority of the Secretary of the Interior in 1976 by the National Petroleum Reserve Protection Act ("NPRPA"), 42 U.S.C. § 6501 et seq.³ In 1980, the NPRPA was amended to direct the Secretary of the Interior to "conduct an expeditious program of competitive leasing of oil and gas in the Reserve."⁴

The NPRPA provides that exploration within designated areas "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 this Act for the exploration of the reserve."⁵ The Teshekpuk Lake Special Area—an approximately 1.7 million-acre area containing "Teshekpuk Lake and its watershed"—is one such designated area.⁶ This area "includes important nesting, staging, and molting habitat for a large number of waterfowl and shorebirds and critical Teshekpuk Caribou Herd caribou calving, migration, and insect-relief habitat."⁷

In 1994, the discovery of a large oil field on state land near the eastern border of the NPR-A spurred "renewed interest in leasing in the Reserve."⁸ Additional discoveries in the northeastern portion of the NPR-A led to the creation of the Greater Mooses Tooth ("GMT") and the Bear Tooth exploratory units.⁹ Between 2000 and 2012, operators drilled 29 exploration wells in the NPR-A.¹⁰ Fifteen of these wells were drilled in the GMT unit and one was drilled in the Bear Tooth unit.¹¹

In 2012, the Bureau of Land Management ("BLM") published a final integrated activity plan ("IAP") and supporting environmental impact statement ("EIS") (together the "2012 IAP/EIS") to govern its management of "all BLM-managed lands in the [NPR-A]."¹² The subsequent Record of Decision ("ROD") adopted Alternative B-2 of the IAP/EIS, which made 11.8 million acres—or 52%—of the NPR-A available for oil and gas leasing.¹³ It kept much of the Teshekpuk Lake Special Area closed to leasing.¹⁴ However, it made "lands in the eastern-most part of [that area] available for oil and gas leasing" because they "include or are close to existing leases, including those with oil discoveries in the [GMT] Unit ... [and] offer the greatest promise for oil and gas development."¹⁵ The ROD also adopted a series of lease stipulations and best management practices ("BMPs"), which are mitigation measures "required, implemented, and enforced at the operational level for all authorized (not just oil and gas) activities in the planning area."¹⁶

Previously, in 2004, BLM had prepared an EIS and approved ConocoPhillips' proposal to expand its existing operations on state land by constructing satellite drill pads in the NPR-A.¹⁷ Two of these pads—GMT1 and GMT2—lie within the GMT unit.¹⁸ In October 2014, BLM completed a supplemental EIS to analyze revisions that ConocoPhillips had made to its plan for the development of the GMT1 drill pad.¹⁹ The agency approved the revised plan for that drill pad in a February, 2015 ROD.²⁰ BLM approved revisions to ConocoPhillips' development plan for the GMT2 drill pad through a similar process, completing a supplemental EIS in August 2018 and issuing a ROD approving the revisions in October, 2018.²¹

In 2013, 2015, 2017, and 2018, BLM approved a series of winter exploratory drilling programs within the NPR-A, which included the construction of wells and associated access route corridors and water supply.²² Each of these programs was approved after BLM completed an Environmental Assessment ("EA") and made a finding of no significant impact ("FONSI") or a finding of no new significant impact ("FONNSI") beyond those already considered in previous EISs.²³

In August, 2018, ConocoPhillips completed an Exploration and Appraisal Program describing activities it planned to conduct during the 2018-2019 winter season to "explore and appraise oil and gas potential on" leases it owned within the NPR-A.²⁴ The proposed exploration would occur to the west of Nuiqsut and the GMT1 and GMT2 projects, in the Bear Tooth unit near the confluence of Fish and Judy Creeks.²⁵ In support of its exploration plan, ConocoPhillips submitted to BLM in October 2018 an application for a right-of-way grant,²⁶ requests to deviate from several of the 2012 IAP/EIS BMPs,²⁷ and applications for permits to drill up to six exploration wells in or near the Bear Tooth unit.²⁸

BLM released a preliminary EA analyzing ConocoPhillips' proposed operations on November 9, 2018.²⁹ After the requisite public comment period had closed, the agency published a final EA on December 6, 2018 ("2018 EA"), which proposed approving ConocoPhillips' various applications and requests.³⁰ The 2018 EA tiered to the 2012 IAP/EIS and the supplemental EISs for the GMT1 and GMT2 drill pads.³¹ BLM then issued a FONNSI,³² and released a ROD that, among other things, authorized ConocoPhillips to conduct exploration drilling and testing at up to eight well sites and build associated infrastructure, including up to 57 miles of ice roads, 42.7 miles of snow trails, 23 ice pads, an air strip, and temporary housing for its employees during the 2018-2019 winter season.³³ ConocoPhillips fully completed the operations authorized by the ROD on April 28, 2019.³⁴

Several other projects occurred in the northeast of the NPR-A during the 2018-2019 winter season as well. The largest of these was construction of the road and drill pad for the GMT2 development.³⁵ ConocoPhillips also obtained authorization to engage in geotechnical exploration in the area, in order to locate "potential gravel resources" to "support[ ] oil and gas development in the Bear Tooth Unit."³⁶ This exploration program consisted of drilling up "up to 125 onshore boreholes" and "up to 40 nearshore boreholes" in search of gravel.³⁷ The majority of the onshore borehole drilling occurred in the vicinity of the GMT1 and GMT2 projects, with a smaller number of boreholes drilled in the area of ConocoPhillips' 2018-2019 winter exploration.³⁸ The nearshore borehole drilling occurred several miles north, off Atigaru Point.³⁹ ConocoPhillips' winter exploration and geotechnical survey both supported the company's plan to develop the Willow prospect, for which BLM is preparing an EIS.⁴⁰

Nuiqsut is a predominantly Alaska Native community of nearly 500 people located on the eastern border of the NPR-A.⁴¹ In recent decades, several oil and gas development projects have been undertaken near Nuiqsut, which is "situated closer to current and foreseeable areas of petroleum development than any other community on the North Slope."⁴² This development has created conflicts with the community's traditional ways of life. A comment from the North Slope Borough on the GMT2 SEIS explained:

Nuiqsut residents, more so than residents of other North Slope communities, and perhaps more so than any other Alaskan residents, have lived with a decades-long, ever-increasing, near constant level of frustration and apprehension as expanding oil and gas facilities and operations have impinged upon their traditional onshore and offshore subsistence harvest areas.⁴³

Many of ConocoPhillips' activities during the winter of 2018-2019 occurred in the general vicinity of Nuiqsut. The ice road construction and drilling associated with the winter exploration program occurred largely 25 miles or more to the west of the community.⁴⁴ The GMT2 development is closer to Nuiqsut; the drill pad site "lies approximately 16.5 miles west of Nuiqsut," and connects to the GMT1 drill site by an access road extending towards the northwest.⁴⁵ Maps showing the locations of development relative to Nuiqsut are included in an appendix to this decision.⁴⁶

The Native Village of Nuiqsut⁴⁷ and several non-profit organizations initiated this action on March 1, 2019, claiming that BLM's environmental analysis of ConocoPhillips' 2018-2019 winter exploration plan was deficient in several ways, and seeking declaratory and injunctive relief.⁴⁸ Plaintiffs filed an Amended Complaint on March 26, 2019, which contained five claims for relief:

(1) That BLM's FONNSI for the winter exploration program, and its associated decision not to prepare an EIS, failed to account for significant impacts to the Teshekpuk Caribou Herd and subsistence activity and was thus in violation of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332(2)(C), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2...