Northern Alaska Environmental Center v. Kempthorne ( 2006 )


Menu:
  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    NORTHERN ALASKA ENVIRONMENTAL              
    CENTER; NATIONAL AUDUBON
    SOCIETY; THE WILDERNESS SOCIETY;
    NATURAL RESOURCES DEFENSE
    COUNCIL; SIERRA CLUB; ALASKA
    WILDERNESS LEAGUE; CENTER FOR
    BIOLOGICAL DIVERSITY,
    Plaintiffs-Appellants,
    v.
    No. 05-35085
    DIRK KEMPTHORNE;* HENRY BISSON;
    UNITED STATES BUREAU OF LAND
    MANAGEMENT; FISH AND WILDLIFE
           D.C. No.
    CV-04-00006-J-JKS
    SERVICE; UNITED STATES                             OPINION
    DEPARTMENT OF THE INTERIOR,
    Defendants-Appellees,
    ARCTIC SLOPE REGIONAL
    CORPORATION; CONOCOPHILLIPS
    ALASKA, INC.; ANADARKO
    PETROLEUM CORPORATION; STATE OF
    ALASKA,
    Defendants-Intervenors-
    Appellees.
    
    Appeal from the United States District Court
    for the District of Alaska
    James K. Singleton, Chief Judge, Presiding
    *Dirk Kempthorne has been substituted for his predecessor as Secretary
    of the Interior. Fed. R. App. P. 43(c)(2).
    8347
    8348   NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE
    Argued and Submitted
    September 15, 2005—Seattle, Washington
    Filed July 26, 2006
    Before: Mary M. Schroeder, Chief Judge, Arthur L. Alarcón
    and Andrew J. Kleinfeld, Circuit Judges.
    Opinion by Chief Judge Schroeder
    NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE      8351
    COUNSEL
    Deirdre McDonnell, Earthjustice, Juneau, Alaska, for the
    plaintiffs-appellants.
    John A. Bryson, Department of Justice, Washington, D.C., for
    the defendant-appellees.
    Jeffrey W. Leppo, Seattle, Washington, for the defendants-
    intervenors-appellees.
    OPINION
    SCHROEDER, Chief Judge:
    Since the administration of President Warren G. Harding,
    the United States has looked to the petroleum and natural gas
    resources underlying the wilderness of Northern Alaska, but
    development has come slowly. The frigid region is far reach-
    ing and so is the range of wildlife that inhabits it.
    The government now proposes to lease vast reaches of the
    northernmost part of the state, known as the Northwest Plan-
    ning Area (“NWPA”). In this litigation, a group of environ-
    8352   NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE
    mental plaintiffs have challenged the adequacy of the Final
    Environmental Impact Statement (“FEIS”) prepared by the
    Bureau of Land Management (“BLM”) for its plan to offer
    long term oil and gas leases in the NWPA. The leases would
    enable the oil companies to undertake exploration to deter-
    mine what sites, if any, can be developed for productive drill-
    ing. The National Environmental Policy Act (“NEPA”)
    requires an assessment of the effects of major federal action
    on the surrounding environment.
    According to plaintiffs, the FEIS issued by the Secretary
    and BLM to open the NWPA to oil and gas leasing does not
    comply with the requirements of NEPA. Plaintiffs allege that
    the Department of Interior and BLM violated NEPA because
    the FEIS failed to evaluate sufficiently site specific environ-
    mental consequences, failed to consider reasonable alterna-
    tives, did not discuss mitigation measures, and did not assess
    the cumulative impacts of leasing and other activities plain-
    tiffs claim to be reasonably foreseeable. Plaintiffs also argue
    that the Biological Opinion (“BiOp”) issued by the Fish and
    Wildlife Service (“FWS”) violates the Endangered Species
    Act (“ESA”).
    The plaintiffs’ main contention is that the analysis
    undertaken for the EIS was inadequate, because it lacked site
    specific analysis for particular locations where drilling might
    occur. The government responds, we conclude cogently, that
    no such drilling site analysis is possible until it is known
    where the drilling is likely to take place, and that can be
    known only after leasing and exploration. The government
    points out that the environmental consequences at specific
    sites can be assessed in connection with later applications for
    permits for drilling at those sites, and that no permits should
    issue without extensive site specific analysis of adverse envi-
    ronmental effects and of the mitigation measures appropriate
    to minimize them. On that basis, we affirm the district court’s
    grant of summary judgment in favor of the government.
    NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE         8353
    BACKGROUND
    President Harding established the Naval Petroleum Reserve
    on Alaska’s North Slope in 1923. It was fifty years later, in
    1976, that the National Petroleum Reserve Protection Act
    (“NPRPA”) transferred authority over the Reserve to the Sec-
    retary of Interior. The Reserve was subsequently renamed the
    National Petroleum Reserve-Alaska (“NPR-A”). It remains
    the largest single unit of public land in the United States and
    covers 23.6 million acres. It is also an important habitat for
    vegetation, fish, and wildlife.
    The NPR-A prohibited petroleum exploration until 1980
    when Congress, driven by the fuel crisis of the previous
    decade, directed the Secretary to carry out an “expeditious
    program of competitive leasing of oil and gas” on the
    Reserve. 
    42 U.S.C. § 6508
    . The Congressional Act also rec-
    ognized the subsistence interests of Native American tribes in
    the area and the need to protect the environment. In 1998, the
    BLM opened up 4.6 million acres, or 87 percent of the North-
    east Planning Area of the Reserve to oil and gas leasing, while
    carving out various special areas as off limits to leasing. The
    Northeast Planning Area is also the subject of litigation in the
    district court.
    The portion of the NPR-A at issue here is the Northwest
    Planning Area, consisting of 8.8 million acres to the west of
    the Northeast Planning Area. The historical background of the
    region is well summarized in the district court’s opinion in
    this case that is published at 
    361 F.Supp.2d 1069
     (D.Alaska
    2005).
    DEVELOPMENT OF THE FEIS
    The BLM published a draft EIS for the NWPA in January
    2003 and received considerable critical comment. The BLM
    published the Final EIS in December 2003 to open parts of
    the NWPA to leasing. The FEIS adopted the Preferred Alter-
    8354   NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE
    native of the draft EIS, opening the BLM administered lands
    in the NWPA to leasing subject to certain significant limita-
    tions. The BLM would defer for 10 years any leasing on the
    western most portion of the NWPA, consisting of approxi-
    mately 17 percent of the proposed area; the FEIS identified
    the Kasegaluk Lagoon as a special area because of important
    migratory bird and marine mammal habitat. It imposed no
    surface occupancy restrictions along the coastal areas and
    deep water lakes, comprising about 16 percent of the area, and
    imposed stipulations on development that included set back
    restrictions and seasonal prohibitions on exploration and
    development in several of the areas richest in wildlife
    resources.
    Under the plan, the leases are to be offered as individual
    parcels that vary in size and are identified by number. At the
    time this record was developed, only a relatively small pro-
    portion of the parcels had received bids and only a few leases
    had been issued. Of the 488 parcels available for leasing,
    approximately 120 received bids. No exploration had begun.
    In assessing the environmental impact of the leasing pro-
    gram for purposes of preparing the FEIS, the BLM had no
    way of knowing what, if any, areas subsequent exploration
    would find most suitable for drilling. Thus, it did not do an
    analysis of any specific parcels.
    The BLM did do an analysis of the possible effects of drill-
    ing in the climatic environment of the region. That analysis
    projected two hypotheticals, representing each end of the
    available spectrum of possibilities. On the basis of experi-
    ences in drilling elsewhere in Alaska, the BLM projected
    types of drilling and patterns of development that might
    ensue, if, under the first scenario, half of the available parcels
    were leased for exploration, but no actual development
    occurred, and, in the second scenario if the total resources
    available in the area were to be discovered and developed.
    NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE         8355
    The FEIS conducted an analysis under each scenario for
    each of the natural resources affected in the area, as, for
    example, water, wildlife, and specific bird species. Because
    the analysis was based upon hypothetical future projections of
    what might be undertaken in the exploration and development
    phases, and was conducted on a resource by resource basis,
    the EIS did not attempt to examine the impact on specific par-
    cels. That is what gives rise to this litigation.
    Plaintiffs filed this action in the United States District
    Court for the District of Alaska on February 16, 2004. Their
    principal claim was that by not undertaking a parcel by parcel
    analysis of the environmental consequences of projected
    exploration and drilling, the BLM had failed to satisfy the
    NEPA requirement of site specific analysis. The district court
    held that the resource by resource analysis of the effects of
    development in the overall area to be offered for leasing satis-
    fied the site specific analysis requirement of NEPA. It also
    rejected the plaintiffs’ secondary NEPA challenges and their
    claim that there was a violation of the ESA. This appeal fol-
    lowed.
    DISCUSSION
    This court reviews de novo the district court’s grant of
    summary judgment upholding an agency decision. Natural
    Resources Defense Council v. U.S. Dept. Of Interior, 
    113 F.3d 1121
    , 1123 (9th Cir. 1997). The appropriate inquiry
    under the Administrative Procedure Act (“APA”) is whether
    the agency’s decision was “arbitrary, capricious, an abuse of
    discretion, or otherwise not in accordance with law.” 
    5 U.S.C. § 706
    (2)(A). NEPA requires an EIS to address:
    (i) the environmental impact of the proposed
    action,
    (ii) any adverse environmental effects which can-
    not be avoided should the proposal be implemented,
    8356   NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE
    (iii)   alternatives to the proposed action,
    (iv) the relationship between local short-term uses
    of man’s environment and the maintenance and
    enhancement of long-term productivity, and
    (v) any irreversible and irretrievable commitments
    of resources which would be involved in the pro-
    posed action should it be implemented.
    Edwardsen v. United States Department of the Interior, 
    268 F.3d 781
    , 784 (9th Cir. 2001); see also 
    42 U.S.C. § 4332
    (2)(C)(i)-(v).
    [1] Ultimately, NEPA requires federal agencies to issue an
    EIS before undertaking “major Federal actions significantly
    affecting the quality of the human environment.” 
    42 U.S.C. § 4332
    (2)(C); 
    40 C.F.R. § 1508.11
     (1985). A court’s inquiry,
    when reviewing whether an agency complied with NEPA, is
    whether the agency adequately considered a project’s poten-
    tial impacts and whether the consideration given amounted to
    a “hard look” at the environmental effects. Idaho Sporting
    Congress, Inc. v. Rittenhouse, 
    305 F.3d 957
    , 963 (9th Cir.
    2002). A “hard look” includes “considering all foreseeable
    direct and indirect impacts.” 
    Id. at 973
    . Furthermore, a “hard
    look” should involve a discussion of adverse impacts that
    does not improperly minimize negative side effects. Native
    Ecosytems Council v. U.S. Forest Service, 
    428 F.3d 1233
    ,
    1241 (9th Cir. 2005).
    This court reviews substantive agency decisions concerning
    NEPA under the “arbitrary and capricious” standard, meaning
    we must determine whether the decision by BLM was “based
    on a consideration of the relevant factors,” or whether its
    action was “arbitrary, capricious, an abuse of discretion, or
    otherwise not in accordance with law.” Blue Mountains Bio-
    diversity Project v. Blackwood, 
    161 F.3d 1208
    , 1211 (9th Cir.
    1998) (quoting the APA, 
    5 U.S.C. § 706
    (2)(A)). This court
    NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE          8357
    has held that “NEPA does not mandate particular results, but
    simply provides the necessary process to ensure that federal
    agencies take a hard look at the environmental consequences
    of their actions.” Muckleshoot Indian Tribe v. United States
    Forest Serv., 
    177 F.3d 800
    , 814 (9th Cir. 1999). Under this
    deferential standard, this court must defer to an agency’s deci-
    sion that is “fully informed and well-considered.” Save the
    Yaak Comm. v. Block, 
    840 F.2d 714
    , 717 (9th Cir. 1988).
    A.   Site Specific Analysis
    [2] With respect to the need for site specific analysis in the
    EIS, our law under NEPA makes it clear that there must be
    such analysis whenever there is an “irretrievable commitment
    of resources” by a federal agency to a project. See Conner v.
    Burford, 
    848 F.2d 1441
     (9th Cir. 1988). There is no question
    here that approval of the leasing program represents an irre-
    trievable commitment of resources. The issue is whether it
    was sufficiently site specific.
    Plaintiffs’ major contention is that “site specific” in this
    context requires an analysis of the environmental effect with
    respect to each parcel involved in a possible lease for explora-
    tion and development. The problem is that until the lessees do
    exploratory work, the government cannot know what sites
    will be deemed most suitable for exploratory drilling, much
    less for development. We are left with a “chicken or egg”
    conundrum in that if plaintiffs’ interpretation of its require-
    ments were adopted, NEPA could never be satisfied in the cir-
    cumstances of this case.
    [3] Our task, however, is to give effect to Congressional
    intent as expressed not only in NEPA, but also in the 1976
    and 1980 enactments relating to the Alaska Reserve. The gov-
    ernment’s resolution of the problem of how to give appropri-
    ate effect to all the relevant statutes in this case was to
    consider hypothetical situations that represented the spectrum
    of foreseeable results, once all phases of the program were
    8358   NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE
    completed. We cannot say that this resolution, as set forth in
    the FEIS, is arbitrary or capricious under our circuit’s law.
    Conner v. Burford is one of our seminal cases considering
    the procedures for evaluating the environmental effects of
    leasing programs to develop oil and gas resources. In that case
    the government instituted programs to sell oil and gas leases
    without preparing any EIS at all. Two types of leases were
    involved. One, the so called “no surface occupancy” or
    “NSO” leases, forbid any use, or even occupancy of the sur-
    face of the national forest land being leased, without BLM
    approval of the specific, surface-disturbing activity the lessees
    planned to undertake. We held that such leases themselves
    involved no “irretrievable commitment of resources” and no
    EIS was required at the leasing stage.
    The second and more numerous type of leases in Conner
    were “non NSO” leases. They authorized the lessees to under-
    take development subject to government regulation of surface
    disturbing activities such as roads and drilling. The govern-
    ment could not totally preclude such activities, however, and
    for that reason we held an EIS was required for non NSO
    leases.
    Plaintiffs place principal reliance on Conner, but we do not
    believe it advances their position in this case. Here the leases
    are more like the “non NSO leases” in Conner. The govern-
    ment can condition permits for drilling on implementation of
    environmentally protective measures, and we assume it can
    deny a specific application altogether if a particularly sensi-
    tive area is sought to be developed and mitigation measures
    are not available. The government cannot, however, consis-
    tent with current statutory imperatives, forbid all oil and gas
    development in Alaska’s NWPA. The leasing program thus
    does constitute an irretrievable commitment of resources. An
    EIS is undeniably required, and, indeed one has been pre-
    pared.
    NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE          8359
    The issue here is plaintiffs’contention that the EIS is insuf-
    ficient because it does not undertake a parcel by parcel analy-
    sis of surfaces that will eventually be explored and developed.
    As to this contention, Conner is of no assistance to plaintiffs,
    for we did not discuss the degree of site specificity required
    in the EIS. The only question was whether one had to be com-
    pleted at all.
    [4] We recognize that in arguing that this EIS analysis
    should have been parcel specific, the plaintiffs raise legitimate
    concerns about the uncertainty at this stage of gauging the
    adverse effects that future development may have on this
    environment. Similar concerns, however, are inherent in any
    program for the development of natural resources. This is
    because such projects generally entail separate stages of leas-
    ing, exploration and development. At the earliest stage, the
    leasing stage we have before us, there is no way of knowing
    what plans for development, if any, may eventually material-
    ize.
    [5] Such concerns underlay our decision in Conner and
    inform our decision today. They become critically important
    when dealing in the environmental context of Northern
    Alaska. Indeed, the D.C. Circuit addressed them in North
    Slope Borough v. Andrus, 
    642 F.2d 589
    , 600 (1980), when it
    upheld an EIS prepared for off shore exploration of resources
    under the Beaufort Sea, off the Northeast Planning Area. The
    D.C. Circuit explained that uncertainty is an inherent problem
    with multi-stage projects such as oil and gas programs, which
    include separate leasing, exploration, and development stages.
    
    Id.
     The court went on to say that “[t]he Secretary [of Interior]
    plainly cannot be expected or required to wait until the totality
    of environmental effects is known.” 
    Id.
     The D.C. Circuit con-
    cluded that when an agency complies in good faith with the
    requirements of NEPA and issues an EIS indicating that the
    agency has taken a hard look at the pertinent environmental
    questions, its decision should be afforded great deference. 
    Id. at 599
    . The same holds true for the instant case. There is no
    8360   NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE
    basis for holding that the analysis in the EIS was arbitrary,
    capricious, or done in bad faith.
    NEPA applies at all stages of the process, however. Any
    later plan for actual exploration by lessees will be subject to
    a period of review before being accepted, rejected or modified
    by the Secretary. See 
    43 C.F.R. § 3162.3-1
    (c). Plaintiffs will
    have an opportunity to comment on any later EIS. In addition,
    before any activity for exploration or development occurs,
    permits from several agencies may be required and additional
    permit conditions imposed for the protection of land, water
    and wildlife resources. 
    Id.
    [6] For these reasons we conclude that the government was
    not required at this stage to do a parcel by parcel examination
    of potential environmental effects. Such effects are currently
    unidentifiable, because the parcels likely to be affected are not
    yet known. Such analysis must be made at later permitting
    stages when the sites, and hence more site specific effects, are
    identifiable.
    We do not agree, however, with the government’s further
    suggestion that any challenge to the sufficiency of the EIS at
    this stage is premature. The government overreaches when it
    suggests that the Tenth Circuit’s decision in Park County
    Resource Council v. United States Department of Agriculture,
    
    817 F.2d 609
     (1987) precludes any challenge to an FEIS at
    the leasing stage. The Tenth Circuit held that plaintiffs in that
    case could, at the permit stage, challenge the earlier approval
    of the leasing program that was instituted without preparation
    of any EIS. The court held the plaintiffs were not required to
    make the objection at the earlier stage. The Tenth Circuit
    therefore recognized that the failure to prepare an EIS could
    be raised at either stage.
    Park County is consistent with our decision in Conner. It
    is also consistent with our decision today that plaintiffs are
    entitled to raise a challenge to the sufficiency of the EIS at
    NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE           8361
    this stage, but that their particular challenge to site specificity
    lacks merit, and that they will be able to raise more focused
    criticisms of site analysis at the exploration and permit stages
    of the leasing program.
    B.   Reasonable Alternatives
    Plaintiffs argue that BLM violated NEPA by failing to con-
    sider an adequate range of alternatives in its FEIS. The district
    court held, and we agree, that BLM’s consideration of the so
    called “Audubon Alternative” in developing the Preferred
    Alternative satisfied NEPA’s requirement to consider an ade-
    quate range of alternatives. The Audubon Alternative was
    proposed by the Audubon Society in a comment to the draft
    EIS. It recommended that BLM add four new special areas
    and, therefore, make 35 percent of the high oil potential area
    unavailable for leasing.
    [7] NEPA mandates that BLM provide a detailed statement
    regarding the alternatives to an agency’s proposed action. See
    
    42 U.S.C. § 4332
    (2)(C)(iii). Consideration of reasonable
    alternatives is necessary to ensure that the agency has before
    it and takes into account all possible approaches to, and
    potential environmental impacts of, a particular project.
    NEPA’s alternatives requirement, therefore, ensures that the
    “most intelligent, optimally beneficial decision will ultimately
    be made.” Calvert Cliffs’ Coordinating Comm., Inc. v. United
    States Atomic Energy Comm’n, 
    449 F.2d 1109
    , 1114 (D.C.
    Cir. 1971). Under NEPA, “an agency’s consideration of alter-
    natives is sufficient if it considers an appropriate range of
    alternatives, even if it does not consider every available alter-
    native.” Headwaters, Inc. v. Bureau of Land Mgmt., 
    914 F.2d 1174
    , 1181 (9th Cir. 1990). An agency need not, therefore,
    discuss alternatives similar to alternatives actually considered,
    or alternatives which are “infeasible, ineffective, or inconsis-
    tent with the basic policy objectives for the management of
    the area.” 
    Id.
     at 1180-81 (citing California v. Block, 
    690 F.2d 753
    , 767 (9th Cir. 1982)).
    8362   NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE
    Plaintiffs argue that BLM failed to consider a middle
    ground alternative and that failure to include the Audubon
    Alternative in the EIS violated NEPA. Plaintiffs concede that
    five alternatives were considered, but argue that those five
    alternatives proposed full development or full preservation
    rather than providing any middle ground. Given the policy
    objectives of the project, however, consideration of the five
    alternatives satisfied the NEPA requirement to consider a
    broad range of possible alternatives. Moreover, as defendants
    point out, the Preferred Alternative is actually a middle
    ground alternative because, while it opens 96% of the avail-
    able land to petroleum development, it places numerous limi-
    tations on the leases, including mandatory deferment and no
    permanent surface occupancy restrictions in some areas.
    [8] Although BLM chose not to adopt the entire Audubon
    Alternative, the Preferred Alternative it did adopt included
    some protections similar to those in the Audubon Alternative.
    Since BLM adopted components of the Audubon Alternative
    in developing the Preferred Alternative, the BLM adequately
    examined a range of viable alternatives in preparing the FEIS.
    See Muckleshoot Indian Tribe, 
    177 F.3d at 814
    .
    [9] NEPA does not require BLM to explicitly consider
    every possible alternative to a proposed action. Westlands
    Water District v. United States Department of the Interior,
    
    376 F.3d 853
    , 871 (9th Cir. 2004). An agency must, however,
    explain its reasoning for eliminating an alternative. See 
    40 CFR § 1502.14
    (a). BLM’s explanation that the Audubon
    Alternative as a whole was inconsistent with the NWPA proj-
    ect and statutory mandates, coupled with its willingness to
    incorporate several recommendations into the Preferred Alter-
    native, constituted a sufficient explanation for its refusal to
    adopt the entire Audubon proposal. We agree with the district
    court, therefore, that the EIS satisfied the NEPA requirements
    to consider or properly reject proposed alternatives.
    NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE        8363
    C.   Analysis of Mitigating Measures
    Plaintiffs also argue that the EIS did not describe and dis-
    cuss mitigating measures as required by NEPA. According to
    the plaintiffs, the EIS listed general mitigation measures and
    did not analyze the effectiveness of each measure. Plaintiffs
    argue that BLM’s development of lease stipulations and
    Required Operating Procedures (“ROP”) intended to reduce
    the environmental impact of the NWPA oil program did not
    constitute a sufficient discussion of mitigation.
    [10] NEPA requires only that an EIS contain “a reasonably
    complete discussion of possible mitigation measures.” Rob-
    ertson v. Methow Valley Citizens Counsel, 
    490 U.S. 332
    , 352,
    
    109 S.Ct. 1835
     (1989). The mitigation must “be discussed in
    sufficient detail to ensure that environmental consequences
    have been fairly evaluated.” City of Carmel-By-The-Sea v.
    U.S. Dept. of Transp., 123 F.3d at 1142, 1154 (9th Cir. 1997).
    In other words, an EIS must include “[m]eans to mitigate
    adverse environmental impacts.” 
    40 C.F.R. § 1502.16
    (h).
    NEPA does not require an agency to formulate and adopt a
    complete mitigation plan. Methow Valley, 
    490 U.S. at 352
    ,
    
    109 S.Ct. 1835
    .
    In Okanogan Highlands Alliance v. Williams, 
    236 F.3d 468
    , 476 (9th Cir. 2000), we held that even though the EIS
    described the mitigating measures in general terms and relied
    on general processes, the agency took the requisite hard look
    and NEPA’s mitigation measures requirement was satisfied.
    We explained that “[t]he exact environmental problems that
    will have to be mitigated are not yet known because the Proj-
    ect does not exist,” but the EIS must contain a discussion of
    potential adverse effects and possible mitigating measures.
    Here, BLM developed stipulations and ROPs to avoid or
    minimize environmental harms from the oil program. ROPs,
    which are pre-application requirements, procedures, manage-
    ment practices, or design features, were developed and
    8364     NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE
    included in the EIS to ensure future environmental protection.
    Specifically, the EIS provided the stipulations and ROPs for
    each alternative and also outlined their purpose and effective-
    ness with respect to various resources. According to BLM, the
    stipulations and ROPs are based on knowledge of the
    resources in the planning area and current industry standards.
    BLM also represented that additional protective measures
    may be developed as part of NEPA evaluations of subsequent
    permit authorizations, including exploration and development
    plans.
    [11] Because it is impossible to know which, if any, areas
    of the NWPA are most likely to be developed, BLM develop-
    ment of more specific mitigating measures cannot be required
    at this stage. BLM, therefore, did not act arbitrarily in provid-
    ing general mitigation measures in the EIS. 
    Id.
    D.     Cumulative Impacts of Reasonably Foreseeable Actions
    Next, plaintiffs argue that the EIS failed to consider and
    describe the cumulative impacts of amending the Northeast
    Integrated Activity Plan/EIS to open previously protected
    areas to leasing. Here plaintiffs point to BLM’s announce-
    ment, issued six months before this FEIS, of plans to revise
    the Northeast EIS in a “Notice of Intent to Amend the North-
    east National Petroleum Reserve-Alaska Integrated Activity
    Plan and to Prepare an Accompanying Environmental Impact
    Statement, Request for Information, and Call for Nominations
    and Comments (“Notice of Intent”). Plaintiffs argue that an
    existing proposal to amend the Northeast EIS covering adja-
    cent areas by removing specified wildlife protections is a
    foreseeable future action that the BLM must consider in the
    NWPA EIS.
    [12] A cumulative impact is defined as “the impact on the
    environment which results from the incremental impact of the
    action when added to other past, present, and reasonably fore-
    seeable future actions . . . .” Cuddy Mountain, 137 F.3d at
    NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE        8365
    1378; 
    40 C.F.R. § 1508.7
    . NEPA requires that an FEIS con-
    sider “[c]umulative actions, which when viewed with other
    proposed actions have cumulatively significant impacts and
    should therefore be discussed in the same impact statement.”
    
    40 C.F.R. § 1508.25
    (a)(2). Ninth Circuit precedent defines a
    “reasonably foreseeable” action, for which cumulative
    impacts must be analyzed, to include “proposed actions.”
    Lands Council v. Powell, 
    379 F.3d 738
    , 746 (9th Cir. 2004)
    rev’d on other grounds, Lands Council v. Powell, 
    395 F.3d 1019
     (9th Cir. 2005). Furthermore, we have previously held
    that an action is “not too speculative” when the agency issues
    a press release and Notice of Intent. See Tenakee Springs v.
    Clough, 
    915 F.2d 1308
    , 1313 (9th Cir. 1990); Muckleshoot
    Indian Tribe, 
    177 F.3d at 812
    .
    [13] The Notice of Intent in this case signifies a proposed
    action that will require a cumulative effects analysis. Defen-
    dants’ argument that the proposed amendment is not a reason-
    ably foreseeable action is unpersuasive. As the district court
    properly explained, however, the issue is one of timing. In the
    Notice of Intent, the agency has in effect given notice that it
    will consider all impacts, cumulative and site specific, in any
    modification to the EIS in the Northeast Planning Area. See
    Salmon River Concerned Citizens v. Robertson, 
    32 F.3d 1346
    ,
    1357-58 (9th Cir. 1994) (“having persuaded the district court
    that it understands its duty to follow NEPA in reviewing
    future site-specific programs, judicial estoppel will preclude
    the Forest Service from later arguing that it has no further
    duty to consider the cumulative impact of site specific pro-
    grams.”) (citations omitted). The cumulative impacts of leas-
    ing in the Northeast Planning Area on the NWPA will have
    to be addressed at a later stage.
    E.   Endangered Species Act Violations
    Plaintiffs allege that the FWS and BLM failed to satisfy the
    ESA because the Biological Opinion (“BiOp”) prepared by
    the Fish and Wildlife Service (“FWS”) (1) fails to assess the
    8366   NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE
    entire agency action, and (2) ignores the uneven distribution
    of two bird species: Steller’s eiders and spectacled eiders.
    [14] The ESA “requires the Secretary of the Interior to
    ensure that an action of a federal agency is not likely to jeop-
    ardize the continued existence of any threatened or endan-
    gered species.” Conner, 
    848 F.2d at 1451-52
    ; see also 
    16 U.S.C. § 1536
    (a)(2), Section 7(a)(2). The ESA sets forth a
    “process of consultation whereby the agency with jurisdiction
    over the protected species issues to the Secretary a “biological
    opinion evaluating the nature and extent of jeopardy posed to
    that species by the agency action.” Conner, 
    848 F.2d at 1452
    ;
    See also 
    16 U.S.C. § 1536
    (b). To comply with these require-
    ments, “each agency shall use the best scientific and commer-
    cial data available.” 
    16 U.S.C. § 1536
    (a)(2).
    Here, BLM requested formal consultation with FWS
    because the NWPA contains two endangered species, the
    spectacled and Steller’s eiders. After an unsuccessful initial
    consultation and attempt to produce a satisfactory BiOp, BLM
    developed “assumptions” about oil and gas activities to assist
    the FWS in issuing a “no-jeopardy” determination.
    [15] Plaintiffs argue that the BiOp violated the ESA
    because it relied on improper assumptions in assessing the
    entire BLM action and because it ignores the fact that eiders
    are unevenly distributed. As discussed earlier, however, there
    is insufficient information about the precise location and
    extent of future oil and gas activities. As the district court
    properly held, the projections used are based on potential oil
    and gas activity as envisioned by this Court in Conner. 
    848 F.2d at 1454
    . The BiOp, therefore, properly relied on a rea-
    sonable and foreseeable oil development scenario, which sat-
    isfied ESA’s requirement for the agency to “make projections,
    based on potential locations and levels of oil and gas activity,
    of the impact of production on protected species.” 
    Id.
     There
    was no violation of the ESA at this stage. If future actions dif-
    fer from the BiOp assumptions, BLM must reinitiate consulta-
    NORTHERN ALASKA ENVIRONMENTAL v. KEMPTHORNE         8367
    tion with the FWS. See 
    50 C.F.R. § 402.16
    (b). The ESA,
    therefore, requires environmental analysis beyond this initial
    stage where agency action causes an effect to listed species or
    critical habitat that was not considered in the BiOp. 
    Id.
    CONCLUSION
    The district court correctly held that at this early stage of
    the oil and gas program in the NWPA of Alaska, the FEIS
    prepared by BLM did not violate NEPA or the ESA.
    AFFIRMED.
    

Document Info

Docket Number: 05-35085

Judges: Schroeder, Alarcón, Kleinfeld

Filed Date: 7/25/2006

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (20)

calvert-cliffs-coordinating-committee-inc-v-united-states-atomic-energy ( 1971 )

idaho-sporting-congress-inc-alliance-for-the-wild-rockies-v-david ( 2002 )

blue-mountains-biodiversity-project-blue-mountain-native-forest-alliance ( 1998 )

north-slope-borough-v-cecil-d-andrus-secretary-of-the-department-of-the ( 1980 )

city-of-tenakee-springs-southeast-alaska-conservation-council-the-sierra ( 1990 )

Northern Alaska Environmental Center v. Norton ( 2005 )

the-lands-council-a-washington-nonprofit-corporation-kootenai ( 2004 )

salmon-river-concerned-citizens-california-coalition-for-alternatives-to ( 1994 )

state-of-california-v-john-r-block-in-his-official-capacity-as ( 1982 )

james-r-conner-v-robert-burford-director-bureau-of-land-management ( 1988 )

headwaters-inc-v-bureau-of-land-management-medford-district-david-a ( 1990 )

charles-edwardsen-jr-bill-tegoseak-abel-akpik-rosemary-ahtuangaruak ( 2001 )

okanogan-highlands-alliance-washington-environmental-council-colville ( 2000 )

natural-resources-defense-council-a-new-york-non-profit-corporation ( 1997 )

native-ecosystems-council-v-united-states-forest-service-an-agency-of-the ( 2005 )

westlands-water-district-san-luis-delta-mendota-water-authority-v-united ( 2004 )

the-lands-council-a-washington-nonprofit-corporation-kootenai ( 2005 )

Save the Yaak Committee, Donn Vance v. J.R. Block, ... ( 1988 )

99-cal-daily-op-serv-3724-1999-daily-journal-dar-4767-muckleshoot ( 1999 )

Robertson v. Methow Valley Citizens Council ( 1989 )

View All Authorities »