Northern Alaska Environmental Center v. Norton

• Decision Date: 10 January 2005
• Docket Number: No. J04-0006 CV(JKS).,J04-0006 CV(JKS).
• Citation: 361 F.Supp.2d 1069
• Parties: NORTHERN ALASKA ENVIRONMENTAL CENTER, et al., Plaintiffs, v. Gale NORTON, et al., Defendants.
• Court: U.S. District Court — District of Alaska

361 F.Supp.2d 1069

NORTHERN ALASKA ENVIRONMENTAL CENTER, et al., Plaintiffs, v. Gale NORTON, et al., Defendants.

No. J04-0006 CV(JKS).

United States District Court, D. Alaska.

January 10, 2005.

COPYRIGHT MATERIAL OMITTED

ORDER

SINGLETON, District Judge.

INTRODUCTION

Plaintiffs challenge the decision by the Secretary of the Interior to make available for oil and gas leasing the entire Northwest Petroleum Reserve-Alaska ("Reserve"), rather than limiting leasing to a smaller area that would, in Plaintiffs' view, more adequately protect threatened environmental features of the Reserve. Specifically Plaintiffs criticize the process leading to this result and challenge the Environmental Impact Statement ("EIS") and supporting Biological Opinion ("BiOp") upon which the decision rests. Plaintiffs request that this Court enter declaratory judgment asserting two points. First, that Defendants arbitrarily violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f[sic], and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, by authorizing leasing in the Northwest Planning Area of the National Petroleum Reserve-Alaska without a proper evaluation of the costs and benefits. Second, that the BiOp arbitrarily violates the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, and APA. Docket Nos. 66(Br.); 68 (Resp.Br.); 71 (Reply Br.). Plaintiffs allege that Defendants' NEPA analysis, specifically the Integrated Activity Plan/Environmental Impact Statement ("IAP/EIS"), (1) failed to consider all reasonable alternatives, specifically one protecting ecologically sensitive areas while still allowing leasing in high petroleum potential areas; (2) provided only a general programmatic EIS rather than a site specific analysis; (3) failed to analyze mitigation measures in the EIS; and (4) failed to consider reasonably foreseeable actions in the cumulative analysis. See Docket No. 66 at 12-40. Plaintiffs allege that Defendants failed to satisfy the ESA because the BiOp (1) fails to assess the entire agency action identified in the Record of Decision ("ROD"), and (2) ignores the uneven distribution of Steller's eiders and spectacled eiders. See Docket No. 66 at 40-50.

FACTUAL AND PROCEDURAL BACKGROUND

In 1923 President Warren G. Harding established the Naval Petroleum Reserve Number 4, which is now referred to as the NPR-A. IAP/EIS Vol. 1 at I-7. His motive was to provide an oil reserve for future use in national defense. In creating the reserve, President Harding noted that "the future supply of oil for the Navy is at all times a matter of national concern." Id. However, the Organization of Petroleum Exporting Countries ("OPEC") oil embargo during the 1970s established that the Nation had a need for oil that exceeded the needs of the Navy. Id. In response, President Gerald Ford created the National Petroleum Reserve Protection Act ("NPRPA"), which transferred authority from the Navy to the Secretary of the Interior and renamed the area the NPR-A. Id. The NPRPA prohibited petroleum exploration until the 1980 Congressional act directed the Secretary to undertake an "expeditious program of competitive leasing of oil and gas." Id.; see also 42 U.S.C. § 6508.

The NPRPA limits oil petroleum exploration in areas "designated by the Secretary of the Interior containing any significant subsistence, recreational, fish and wildlife, or historical or scenic value...." 42 U.S.C. § 6504(b). Thus Congress has recognized the Reserve as a potential source for oil and gas exploration and production while simultaneously assuring that environmental concerns would not be overlooked.

The portion of the NPR-A in controversy here is 8.8 million acres of the Northwest Planning Area ("NWPA"). IAP/EIS Vol. 1 at I-3. Sensitive to the concerns to provide for necessary exploration while at the same time providing adequate protection, the Secretary established three special areas, two of which are within the NWPA. IAP/EIS Vol. 1 at I-7. The Teshekpuk Lake Special Area, in the northeast corner of the NWPA, protects migratory waterfowl and shorebirds, and the Colville River Special Area, in the southernmost area of the NWPA, protects the endangered peregrine falcon. Id. Vol. 1 at I-8.

The leases issued by the Bureau of Land Management ("the BLM") in 1982 and 1983 have now expired. Id. Vol. 1 at I-4. Therefore, the BLM initiated this NEPA review to undertake a renewed leasing program because the information upon which the earlier leasing had been authorized is now stale. Id.

Plaintiffs argue that Defendants acted arbitrarily in violation of NEPA and the APA by authorizing leasing in the entire NWPA without considering reasonable alternatives and without doing a site-specific analysis of each of the areas affected by its proposed action. Plaintiffs further argue that the BiOp is arbitrary in violation of the ESA and APA because it is insufficiently thorough, is not co-extensive with the ROD, and pays insufficient attention to the uneven distribution of eiders within the affected area. This Court has jurisdiction. 28 U.S.C. § 1331; 5 U.S.C. § 702.

DISCUSSION

I. Adequacy of NEPA Review

A district court's review of an EIS under NEPA is governed by the APA. See 5 U.S.C. § 706. A court may hold unlawful and set aside agency action, findings, and conclusions that it finds to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A); Lathan v. Brinegar, 506 F.2d 677, 692-93 (9th Cir.1974). An agency's action is arbitrary and capricious if the agency fails to consider an important aspect of a problem, if the agency offers an explanation for the decision that is contrary to the evidence, if the agency's decision is so implausible that it could not be ascribed to a difference in view or be the product of agency expertise, Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), or if the agency's decision is contrary to the governing law. 5 U.S.C. § 706(2)(A); Lands Council v. Powell, 379 F.3d 738, 743 (9th Cir.2004). While the preparation of an EIS calls for judgment by the agency, courts require full compliance with the procedural requirements of NEPA. See Save Lake Washington v. Frank, 641 F.2d 1330, 1334 (9th Cir.1981).

Plaintiffs allege that Defendants' NEPA analysis, specifically the IAP/EIS, failed to consider all reasonable alternatives, particularly an alternative that would open for leasing those areas most likely to contain oil or gas in commercial quantities but that would protect ecologically sensitive areas by excluding them from leasing. Plaintiffs further argue that the IAP/EIS provided only a general programmatic EIS rather than a site specific analysis of the various expected leaseholds, failed to adequately analyze mitigation measures in the EIS, and failed to consider reasonably foreseeable actions in the cumulative analysis. See Docket No. 66 at 12-40.

A. Reasonable Alternatives

1. The Middle Ground

Plaintiffs argue that the BLM violated NEPA because the IAP/EIS essentially set out alternatives that either opened the entire reserve to leasing, or closed those parts of the reserve likely to contain oil and gas to leasing and thereby failed to consider a middle ground alternative. Docket No. 66 at 14. The middle ground, Plaintiffs assert, would allow some petroleum exploration and development of areas the agency considered most promising, while protecting specific sites that Plaintiffs consider ecologically sensitive. Id. Plaintiffs concede that five alternatives were considered, but state that those five alternatives covered both ends of the alternative spectrum from development to preservation, yet failed to provide any middle ground. Id. Alternative A opened 100%, Alternative B opened 96%, and Alternative C opened 47% of the NWPA to oil and gas leasing, exploration, and possible development. IAP/EIS Vol. 1 at II-32, IV-69. However, Alternative C only opened 2% of the recognized high petroleum potential areas and, in Plaintiff's view "is essentially equivalent to the No Action Alternative." Id. Vol. 1 at IV-69. The No Action Alternative did not offer any oil and gas leases. Id. Vol. 1 at IV-69. And finally, the Preferred Alternative "is similar to Alternative B" opening 96% of the NWPA to oil and gas leasing, exploration, and possible development, including all recognized high petroleum potential areas. Id. Vol. 1 at IV-69. Plaintiffs argue that these alternatives ignore the ability to make available more than 2% but less than 100% of the high petroleum potential areas for leasing. Docket No. 66 at 14. Plaintiffs further note that the BLM was alerted to this problem by the Environmental Protection Agency ("EPA"), which commented that the alternative range lacked a compromise between the "all or nothing" options. Docket No. 66 at 15; Ex. 11 at 5. The EPA suggested that the BLM adopt an alternative that strikes a balance between protection of the natural and cultural resources, and production and development of petroleum. Docket No. 66, Ex. 11 at 5. The United States Fish and Wildlife Service ("FWS") also commented that the EIS offered little difference between the alternatives, specifically Alternatives A and B. Id., Ex. 13 at 7.

Defendants respond that the five alternatives covered an acceptably broad range of alternatives given the policy objectives to be served by the project. Docket No. 68 at 27-31. Defendants assert that both Alternative C and the Preferred Alternative are middle ground alternatives, thus satisfying the NEPA requirements to consider a broad range of possible alternatives. Id. at 29-31. First, Defendants explain that Alternative C opens less than 2% of the high petroleum potential areas because the areas of highest potential for oil and gas development overlap with the most biologically sensitive areas. Id. at 29 (citing IAP/EIS Vol. 3 at Maps 35, 49, 50, 54, 84, & 90)....