Sovereign Inupiat for a Living Arctic v. Bureau of Land Mgmt.

• Court: U.S. District Court — District of Alaska
• Writing for the Court: SHARON L. GLEASON, UNITED STATES DISTRICT JUDGE.
• Decision Date: 03 April 2023
• Docket Number: 3:23-cv-00058-SLG,3:23-cv-00061-SLG
• Citation: Sovereign Inupiat for a Living Arctic v. Bureau of Land Mgmt., 3:23-cv-00058-SLG, 3:23-cv-00061-SLG (D. Alaska Apr 03, 2023)
• Parties: SOVEREIGN INUPIAT FOR A LIVING ARCTIC, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, et al., Defendants. and CONOCOPHILLIPS ALASKA, INC., et al., Intervenor-Defendants. CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, et al., Defendants. and CONOCOPHILLIPS ALASKA, INC., et al., Intervenor-Defendants.

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SOVEREIGN INUPIAT FOR A LIVING ARCTIC, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, et al., Defendants. and CONOCOPHILLIPS ALASKA, INC., et al., Intervenor-Defendants. CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, et al., Defendants. and CONOCOPHILLIPS ALASKA, INC., et al., Intervenor-Defendants.

Nos. 3:23-cv-00058-SLG, 3:23-cv-00061-SLG

United States District Court, D. Alaska

April 3, 2023

ORDER RE MOTIONS FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

SHARON L. GLEASON, UNITED STATES DISTRICT JUDGE.

Before the Court are two motions filed in related cases challenging the Bureau of Land Management's (“BLM”) review and approval of ConocoPhillips Alaska, Inc.'s (“ConocoPhillips”) Willow Master Development Plan (“Willow Project” or “Project”) in the National Petroleum Reserve in Alaska (“NPR-A” or “Reserve”). At issue are Center for Biological Diversity Plaintiffs' (“CBD Plaintiffs”)^[1]Motion for Preliminary Injunction (Docket 24) and Sovereign Inupiat for a Living Arctic Plaintiffs' (“SILA Plaintiffs”)^[2] Motion for Temporary Restraining Order and Preliminary Injunction (Docket 23). Both motions seek to enjoin ConocoPhillips from undertaking Willow Project construction activities this winter, pending the Court's final judgment on the merits of Plaintiffs' claims against Federal Defendants.^[3] Oral argument was not requested and was not necessary to the Court's determination. For the reasons set forth below Plaintiffs' motions will be denied.

INTRODUCTION

I. Background

The National Petroleum Reserve in Alaska (“NPR-A” or “Reserve”), on Alaska's North Slope, consists of 23.6 million acres and is the nation's largest single unit of public land.^[4] Established as the Naval Petroleum Reserve Number 4 in 1923, the NPR-A was renamed and its management authority was transferred to the Secretary of the Interior in 1976 by the Naval Petroleum Reserves Production Act (“NPRPA”), 42 U.S.C. § 6501 et seq.^[5] In 1980, the NPRPA was amended by an appropriations rider that directed the Secretary of the Interior to conduct “an expeditious program of competitive leasing of oil and gas in the” NPR- A.^[6] Over the years, Intervenor-Defendant ConocoPhillips has acquired and developed significant lease holdings in the northeast portion of the NPR-A.^[7]

On May 10, 2018, ConocoPhillips requested that BLM prepare an Environmental Impact Statement (“EIS”) for the Willow Project, as required by the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq.^[8]The following year, BLM made available for public comment a Draft EIS for the Project.^[9] Then, on March 26, 2020, BLM released a Supplemental Draft EIS that evaluated additional Project components.^[10] BLM published its notice regarding the availability of the Final EIS (“FEIS”) on August 14, 2020.^[11] On October 26, 2020, then-Secretary of the Interior David Bernhardt signed the Record of Decision (“ROD”) adopting ConocoPhillips' proposed five drill site project, although BLM approved three drill sites and deferred decisions on the other two drill sites.^[12] In late 2020, a number of plaintiffs filed suit challenging the Federal Defendants' compliance with NEPA and the Endangered Species Act (“ESA”) in reviewing and approving the FEIS and ROD for the Willow Project.^[13] The plaintiffs sought to preliminarily enjoin ConocoPhillips from undertaking certain construction activities for the Willow Project in the winter of 2020-2021. The Court denied that motion on February 1, 2021, after concluding that the “[plaintiffs' NEPA claims [we]re quite likely time-barred.”^[14] With respect to the ESA claim, the Court explained that plaintiffs did not demonstrate that irreparable injury to the polar bears was likely in the absence of an injunction enjoining the winter construction activities.^[15]

The plaintiffs appealed and simultaneously sought an injunction pending appeal. This Court issued a temporary injunction enjoining certain construction activities for up to two weeks.^[16] The Court acknowledged that whether the NEPA claims were time-barred was a question of first impression and if they were not time-barred, they would likely succeed on the merits of the NEPA claims.^[17] The Court also held that the blasting planned as part of the winter construction activities would cause irreparable injury to at least one of the plaintiffs' members.^[18] A motions panel of the Ninth Circuit granted the plaintiffs' emergency motions for an injunction pending appeal and extended this Court's temporary injunction for the duration of the appeal.^[19] The Ninth Circuit held that the plaintiffs had “raised a serious question” with respect to whether their NEPA claims were time-barred, and held that the other Winter^[20] factors tipped in the plaintiffs' favor.^[21]

In August 2021, the Court ruled on the merits and vacated BLM's approval of the Willow Project under NEPA and vacated the Fish and Wildlife Service's Biological Opinion (“BiOp”), granting in part the plaintiffs' motion for summary judgment.^[22] With respect to NEPA, the Court found that: (1) “BLM's exclusion of foreign greenhouse gas emissions in its alternatives analysis in the EIS was arbitrary and capricious”; (2) “BLM acted contrary to law insofar as it developed its alternatives analysis based on the view that ConocoPhillips had the right to extract all possible oil and gas from its leases”; and (3) “BLM acted contrary to law in its alternative[,] analysis for the Teshekpuk Lake Special Area insofar as it failed to consider the statutory directive that it give ‘maximum protection' to surface values in that area.”^[23] With respect to the BiOp, the “incidental take statement [wa]s not in accordance with the law because it lack[ed] the requisite specificity of mitigation measures for the polar bear.”^[24]

Following the Court's decision, BLM began preparing a Supplemental Environmental Impact Statement (“SEIS”) for the Willow Project “to address deficiencies identified by [the Court].”^[25] On July 25, 2022, BLM made available for public comment a Draft SEIS.^[26] BLM published the notice of availability of the Final SEIS in the Federal Register on February 6, 2023.^[27] On March 12, 2023, Deputy Secretary of the Interior Tommy Beaudreau signed the Record of Decision approving the Willow Project.^[28]

II. The Willow Project and Winter 2023 Construction Activities

As approved by the ROD, the Willow Project would consist of three drill sites and related support infrastructure, including a processing facility, airstrip, operations center, gravel mine, gravel roads connecting the Project infrastructure, and pipelines.^[29] The ROD disapproved of two additional drill sites that had been proposed by ConocoPhillips, explaining that this decision “significantly reduces the footprint of project infrastructure and the level of construction and operational activities, both within and outside of the sensitive [Teshekpuk Lake Special Area], and thereby substantially reduces impacts to a broad range of surface resources.”^[30] Four days after BLM issued the ROD, ConocoPhillips relinquished 68,085.50 acres of leased lands in the Reserve because BLM “did not approve drilling pads that could have developed [these] leases.”^[31]

On March 13, 2023, the Department of the Interior issued a Right-of-Way Grant to ConocoPhillips approving its request to begin developing the Willow Project.^[32] ConocoPhillips began ice road construction that same day and, unless enjoined, plans to commence ground-disturbing activity on April 4, 2023,^[33] and continue construction until approximately April 25, 2023, depending on the weather (“Winter 2023 Construction Activities”).^[34] The Winter 2023 Construction Activities are comprised of five components: (1) ice road and pad construction, (2) opening a gravel mine site, (3) constructing a gravel road that will provide access to the Willow Project area, (4) constructing a subsistence boat ramp on the Tigmiaqsiugvik River, and (5) gravel work in the Kuparuk River Unit.^[35] Both CBD Plaintiffs and SILA Plaintiffs seek to enjoin the Winter 2023 Construction Activities pending adjudication on the merits of their claims.

The new gravel mine site that ConocoPhillips plans to open this winter is located in the Tigmiaqsiugvik area, which is approximately four to five miles southeast of Greater Mooses Tooth 1 (“GMT-1”) and seven miles west of the community of Nuiqsut.^[36] Nuiqsut is home to approximately 500 residents and is predominately Inupiat.^[37] The entire community of Nuiqsut relies on subsistence resources, with each household harvesting an annual average of 679 pounds of subsistence resources.^[38]

The proposed gravel mine would be located within 553 feet of the Tigmiaqsiugvik river.^[39] ConocoPhillips explains that “the mine site areas are set back from the river to protect the rivers and fish” and “berms will be built around the mine site areas to keep mining sediments contained within the footprint of the mine areas.” ConocoPhillips expects that any water flow leaving the mine will not impact water quality.^[40] According to the Final SEIS, when completed, the gravel mine site area excavation footprint will be up to 115 total acres.^[41] In the current construction season, however, ConocoPhillips only plans to create disturbance at the Willow Mine Site of up to 10.4 acres of land.^[42] The Winter 2023 Construction Activities at the mine will require the use of “heavy equipment to remove the top organics layer, and blasting to loosen the frozen overburden and gravel,” which will then be “loaded and transported with heavy equipment.”^[43] Blasting will normally be limited to one time per day and further limited to the hours of 10 a.m. to 8...