Natural Resources Defense Council v. Lujan, Civ. A. No. 89-2345 (JHG)

Citation768 F. Supp. 870
Decision Date22 July 1991
Docket Number89-2393 (JHG).,Civ. A. No. 89-2345 (JHG)
PartiesNATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. Manuel LUJAN, Secretary of the U.S. Department of the Interior; U.S. Department of the Interior, Defendants. GWICH'IN STEERING COMMITTEE, Plaintiff, v. Manuel LUJAN, Secretary of the U.S. Department of the Interior; U.S. Department of the Interior, Defendants, and Arctic Slope Regional Corporation and Kaktovik Inupiat Corporation, Defendant-Intervenors.
CourtU.S. District Court — District of Columbia

COPYRIGHT MATERIAL OMITTED

Eric Smith, Anchorage, Alaska, Robert W. Adler, NRDC, Inc., Washington, D.C., Sarah Chasis, NRDC, Inc., New York City, for plaintiffs.

Gary B. Randall, Anthony P. Hoang, Attys., U.S. Dept. of Justice, Land & Natural Resources Div., General Litigation Section, Washington, D.C., for defendants.

David C. Crosby, Wickwire, Greene, Crosby & Seward, Anchorage, Alaska, Steven T. Seward, James Wickwire, Wickwire, Greene & Seward, Seattle, Wash., Sam Kalen, Alan Mintz, Van Ness, Feldman, Sutcliffe & Curtis, Mark N. Savit, L. Poe Legette, Thad S. Huffman, Jackson & Kelly, Washington, D.C., for intervenor defendants.

William W. Garner, John Wyeth Griggs, Birch, Horton, Bittner & Cherot, Washington, D.C., for amicus.

MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

In these consolidated actions, plaintiffs challenge a legislative environmental impact statement ("LEIS") accompanying a statutorily mandated report conducted by defendants concerning the future management of the coastal plain of the Arctic National Wildlife Refuge ("ANWR") in Alaska. Defendants and defendant-intervenors filed a motion to dismiss the complaints. Subsequently, plaintiffs filed a motion for a preliminary injunction to compel defendants to circulate as a draft supplemental environmental impact statement ("SEIS") a recent report issued by defendants. A hearing was held on the latter motion. As explained below, the motion to dismiss is granted in part and denied in part, the motion for preliminary injunction is denied, but declaratory judgment is entered for plaintiffs on one claim raised in the preliminary injunction motion.

I. BACKGROUND
A. Statutory Framework and History

ANWR, established in 1960 to preserve the area's unique wildlife, wilderness, and recreational values, was included in the sixteen National Wildlife Refuges created by Congress in Alaska in the Alaska National Interest Lands Conservation Act, Pub.L. No. 96-487, 94 Stat. 2449 (1980) (codified at 16 U.S.C. §§ 3101 et seq.) ("ANILCA"). ANWR covers approximately 19 million acres, of which 1.55 million acres make up the coastal plain and are designated as an area of study. See id. § 1002, 16 U.S.C. § 3142. The coastal plain's value stems from its status as the most biologically productive area of ANWR and its use by a large number and diversity of fish and wildlife, including as calving grounds for the migratory Porcupine Caribou Herd. See U.S. Department of the Interior, 1 Arctic National Wildlife Refuge, Alaska, Coastal Plain Resource Assessment: Report and Recommendation to the Congress of the United States and Final Legislative Environmental Impact Statement ("ANWR Report") 1 (Apr. 1987).

The largest deposit of oil and gas discovered in North America, the Prudhoe Bay Oilfield, lies sixty miles west of ANWR. In 1978, the Senate Energy and Natural Resources Committee reported that the northwestern corner and the central coastal plain of the Arctic Range were probably among the best prospects for oil and gas development in arctic Alaska. S.Rep. No. 1300, 95th Cong., 2d Sess. 154, 203-04 (1978). Later, the Committee concluded that the information concerning the effect on the environment of the development and production of such resources was uncertain and conflicting. S.Rep. No. 413, 96th Cong., 1st Sess. 241 (1979). The inadequacy of the available information helped lead to and inform the enactment of the ANILCA sections at the center of the instant controversy.

Sections 1002 and 1003 of ANILCA, 16 U.S.C. §§ 3142, 3143, in essence defer Congressional decision on ANWR until certain information is gathered on the area and findings and recommendations submitted. This legislated decisionmaking process requires the Secretary of the Interior ("Secretary") to conduct and publish a biological assessment (a continuing study of the coastal plain's fish and wildlife and their habitat) within eighteen months of ANILCA's enactment. This "baseline study," ultimately published by the Interior Department's Fish and Wildlife Service, was to be updated to include revisions thereto. ANILCA § 1002(c), 16 U.S.C. § 3142(c). At the same time, the statute required the Secretary to establish, in regulations grounded in the results of the baseline study, initial guidelines to govern the conduct of exploratory activities, and to publish these guidelines within two years of ANILCA's enactment. Id. § 1002(d), 16 U.S.C. § 3142(d). The statute prohibited approval of any exploration plans for the area during that period. Id. § 1002(e)(2), 16 U.S.C. § 3142(e)(2). A further subsection required that along with the guidelines, an environmental impact statement be conducted on the exploration regulations. Id. § 1002(d)(2), 16 U.S.C. § 3142(d)(2). The guidelines were to be revised to reflect any changes in the baseline study and any other appropriate information that became available. Id. The initial baseline report was published in 1982 and the final baseline report was published in 1986, after revisions; the exploration activities EIS was issued in 1983, as were the § 1002(d) regulations. ANWR Report at 3; see 50 C.F.R. § 37.1

The subsection at issue here, subsection 1002(h) of the statute, required the Secretary to prepare a report ("§ 1002 Report") containing his findings and recommendations concerning the coastal plain and to submit this report to Congress between five years and five years and nine months after the enactment of ANILCA. 16 U.S.C. § 3142(h). Congress specified that the § 1002(h) Report contain the following:

(1) the identification by means other than drilling of exploratory wells of those areas within the coastal plain that have oil and gas production potential and estimate of the volume of the oil and gas concerned;
(2) the description of the fish and wildlife, their habitats, and other resources that are within the areas identified under paragraph (1);
(3) an evaluation of the adverse effects that the carrying out of further exploration for, and the development and production of, oil and gas within such areas will have on the resources referred to in paragraph (2); (4) a description of how such oil and gas, if produced within such an area, may be transported to processing facilities;
(5) an evaluation of how such oil and gas relates to the national need for additional domestic sources of oil and gas; and
(6) the recommendations of the Secretary with respect to whether further exploration for, and the development and production of, oil and gas within the coastal plain should be permitted and, if so, what additional legal authority is necessary to ensure that the adverse effects of such activities on fish and wildlife, their habitats, and other resources are avoided or minimized.

Id. § 3142(h)(1)-(6). Section 1003 expressly prohibits oil and gas leasing and other development leading to production in ANWR, as well as oil and gas production therefrom, until authorized by Act of Congress. Id. § 3143.2

The Secretary initially intended to submit the § 1002 Report by itself to Congress, but then added an LEIS. However, the Secretary attempted to submit the LEIS without prior public circulation. In 1986, the Ninth Circuit held that the Secretary had violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. ("NEPA"), by failing to submit a draft of the LEIS for public comment. Trustees for Alaska v. Hodel, 806 F.2d 1378 (9th Cir.1986).3 After circulation of the draft, the § 1002 Report and final LEIS were subsequently prepared and submitted to Congress as one integrated document in May 1987.4 Congress has not enacted any laws as a result of the ANWR Report as of this date, although it has held over forty hearings in various committees on the subject of ANWR.

After plaintiffs filed these suits, the Interior Department issued a report prepared by its Bureau of Land Management ("BLM") entitled "Overview of the 1991 Arctic National Wildlife Refuge Recoverable Petroleum Resource Update" (BLM, Apr. 1991) ("1991 Overview"). The 1991 Overview updates the assessment of the 1987 ANWR Report and states that it "makes a considerable contribution to the knowledge and understanding of the 1002 area" and, among other changes, revises the ANWR Report's assessment of the marginal probability of economic success in tapping oil reserves in ANWR from 19 percent to 46 percent. This report, which was provided to Congress as part of testimony by the Secretary and others, does not identify the sources of data on which its conclusions are based, and was not circulated to the public prior to its release.

B. The Original Lawsuit

Plaintiffs are a collection of national and local Alaskan environmental organizations,5 as well as the Gwich'in Steering Committee, a corporation made up of Native members and governments of the Gwich'in-speaking villages in northeastern Alaska and northwestern Canada. Their complaints6 allege that the Secretary did not fulfill Congress' mandate that the issues identified by § 1002 of ANILCA and NEPA be studied thoroughly, credibly, and objectively. They also assert that the Department of the Interior's administration of the study program violated statutory requirements and that its actions and omissions since 1981 demonstrate that it has always intended to recommend full leasing of the coastal plain, a bias reflected in the technical and legal inadequacies of the ANWR Report. Plaintiffs claim that...

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