No Oilport! v. Carter, Civ. A. No. C80-360M
| Citation | 520 F. Supp. 334 |
| Decision Date | 09 February 1981 |
| Docket Number | Civ. A. No. C80-360M,C80-369M and C80-553S. |
| Parties | NO OILPORT!, A Non-Profit Corporation Licensed by the State of Washington; Norma Turner, President; Save the Resources Committee; National Audubon Society; Olympic Peninsula Audubon Society; Admiralty Audubon Society; Citizens' Pipeline Task Force; Northern Tier Information Committee; and Friends of the Earth, Plaintiffs, v. James Earl CARTER, President of the United States; Cecil D. Andrus, Secretary of the Interior; Frank Gregg, Director of the Bureau of Land Management; United States of America; and Northern Tier Pipeline Company, Defendants. The LOWER ELWHA BAND OF KLALLAM INDIANS; the Port Gamble Band of Klallam Indians; the Skokomish Indian Tribe; the Tulalip Tribes of Washington; the Stillaguamish Tribe of Indians; the Upper Skagit Indian Tribe; the Swinomish Tribal Community; and the Squaxin Island Tribe, Plaintiffs, v. James Earl CARTER, President of the United States; Cecil D. Andrus, Secretary of the Interior; Guy R. Martin, Assistant Secretary of the Interior for Land and Water Resources; Gary J. Wicks, Deputy Secretary of the Interior for Land and Water Resources; Frank Gregg, Director of the Bureau of Land Management; the United States of America; the United States Department of the Interior; the Bureau of Land Management; the Northern Tier Pipeline Company, Defendants. CITY OF PORT ANGELES, a municipal corporation of the state of Washington; and Clallam County, a political subdivision of the state of Washington, Plaintiffs, v. UNITED STATES of America; DEPARTMENT OF THE INTERIOR, United States of America; Bureau of Land Management, Department of the Interior; Cecil D. Andrus, Secretary of the Interior; Frank Gregg, Director of the Bureau of Land Management; and Northern Tier Pipeline Company, a Delaware corporation, Defendants. |
| Court | U.S. District Court — Western District of Washington |
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Craig A. Ritchie, Doherty, Doherty & Ritchie, Port Angeles, Wash., for No Oilport plaintiffs.
Craig L. Miller, City Atty., Port Angeles, Port Angeles, Wash., for City of Port Angeles plaintiff.
Grant S. Meiner, Pros. Atty., Clallam County, Port Angeles, Wash., for Clallam County plaintiff.
Russell W. Busch, Evergreen Legal Services, Native American Project, Seattle, Wash., Stephen V. Quesenberry, Skokomish Tribal Office, Shelton, Wash., Donald S. Means, Peter J. Wilke, P. S., Swinomish Tribal Community, Bellevue, Wash., Robert D. Wilson-Hoss, Squaxin Island Tribe, Shelton, Wash., for Indian Tribes plaintiffs.
John C. Merkel, U. S. Atty., David E. Wilson, Asst. U. S. Atty., Seattle, Wash., Lois J. Schiffer, Andrew F. Walch, Nancy B. Firestone, Attys., Dept. of Justice, Land and Natural Resources Div., Washington, D. C., for Federal defendants.
Robert H. Loeffler, Alan Cope Johnston, Steven S. Rosenthal, Morrison & Foerster, Washington, D. C., Gordon G. Conger, Larry M. Carter, Preston, Thorgrimson, Ellis & Holman, Seattle, Wash., for Northern Tier Pipeline Co. defendant.
I. INTRODUCTION
This litigation consists of three consolidated cases in which plaintiffs seek to block construction of an oil pipeline which is proposed to originate in Port Angeles, Washington, and terminate in Clearbrook, Minnesota. Plaintiffs in Civil No. 80-360 are a number of environmental groups; they shall be collectively referred to as No Oilport. Plaintiffs in Civil No. 80-369 are the City of Port Angeles, Washington, and Clallam County, Washington; they shall be collectively referred to as The City. Plaintiffs in Civil No. 80-553 are a number of Indian tribes which are located in the State of Washington, primarily near Puget Sound; they shall be collectively referred to as the Tribes. In all three cases defendants are the corporation which proposed the pipeline and which will build it, if permitted, Northern Tier Pipeline Co., and a number of officials of the United States. Northern Tier Pipeline Co. shall be referred to as NTPC. The remaining defendants shall be referred to as the Federal Defendants, unless only a particular defendant is involved.
Plaintiffs seek to set aside two governmental actions. First, the selection by President Carter of NTPC's proposed west to east crude oil transportation system for purposes of Title V of the Public Utility Regulatory Policies Act (hereafter PURPA), 43 U.S.C. § 2001 et seq. Secondly, the issuance by the Secretary of the United States, Department of the Interior of a right-of-way permit to NTPC for purposes of the proposed oil pipeline. Plaintiffs attack the two actions based upon numerous grounds, with the result that an extraordinary number of issues must be resolved. I have divided the issues into four major groups: 1.) issues arising under PURPA; 2.) issues arising under the National Environmental Policy Act (hereafter NEPA), 42 U.S.C. § 4321 et seq.; 3.) issues arising under the Mineral Leasing Act (hereafter MLA), 30 U.S.C. § 181 et seq.; and, 4.) all other remaining issues. The issues arising under PURPA concern the President's selection of the NTPC project. All other issues primarily concern the Secretary's issuance of the right-of-way permit.
These cases are unique in that Congress has explicitly mandated that they be expedited. 43 U.S.C. § 2011(c).1 As a result of this Congressional mandate and as a result of the extraordinary number of issues presented, this court will not be discussing each of the numerous issues in as much detail as otherwise might be the case. However, nearly every issue will be addressed and each and every issue has been given careful consideration.
The court has jurisdiction over the subject matter of the actions pursuant to 28 U.S.C. § 1331. The actions are primarily review of informal agency decision making, as authorized in 5 U.S.C. § 706. The actions are presently before the court on the defendants' motions for summary judgment, various motions to strike certain exhibits submitted in opposition to the motions for summary judgment and No Oilport and The City's motions for partial summary judgment.2 No Oilport has moved for summary judgment with respect to its claims under PURPA, NEPA, MLA, the Magnuson Amendment to the Marine Mammal Protection Act, 33 U.S.C. § 476, and the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq. The City has moved for summary judgment with respect to their claims under the Magnuson Amendment and the Coastal Zone Management Act.
The occurrences which resulted in this litigation can be traced back as far as 1968 when the largest crude oil reservoir in the Western Hemisphere was discovered at Prudhoe Bay on the North Slope of Alaska. In June, 1977, the Trans-Alaska Pipeline System was put into operation, thereby allowing delivery of North Slope crude oil to Valdez, Alaska. Since 1977, upon reaching Valdez, the crude oil has been pumped onto tankers for delivery to refineries. At the present time, much of the crude oil is delivered to, and refined on, the west coast of the United States. However, the crude oil which is in excess of the capacity of west coast refineries must be shipped through the Panama Canal to ports located on the Gulf Coast and in the Virgin Islands. From there, the crude oil is either refined locally or shipped to refineries located on the east coast of the United States.
As early as 1976, construction of a west to east oil pipeline to avoid the necessity of shipment through the Panama Canal was proposed. The original proposal called for a pipeline from Long Beach, California, to Midland, Texas; however, the project was later abandoned. At about this same time during the late 1970's, predictions were being made that due to a decrease in oil imports from Canada, refineries located in the northern tier states would not have sufficient oil supplies to operate at full capacity.3 The pipeline project under consideration today was proposed to remedy both the problem of excess crude oil on the west coast having to be shipped through the Panama Canal and the anticipated problem of a shortage of crude oil in the northern tier states.
As proposed, the NTPC system would originate at a terminal dock in Port Angeles, where the crude oil would be unloaded from tankers arriving from Alaska and pumped into the pipeline. From Port Angeles, the project calls for the pipeline to cross beneath Puget Sound and then to continue to head east, passing through eastern Washington, Idaho, Montana, North Dakota and finally terminating in Clearbrook, Minnesota, where it will connect with a pipeline system already in existence. Although the pipeline is proposed to be nearly 1,500 miles long, plaintiffs are primarily concerned with the potential effects of the pipeline on the areas of western Washington through which the pipeline is scheduled to pass.4 Plaintiffs are particularly concerned about possible degradation of Puget Sound.
The context in which these actions arise cannot be fully understood unless one is at least somewhat familiar with PURPA (Title V of the Public Utility Regulatory Act, 43 U.S.C. § 2001 et seq.). More than anything else, PURPA is designed to expedite action on federal permits required for the construction of a west to east crude oil transportation system. In enacting PURPA, Congress set out the following findings:
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